Koelling v. Union Fuel & Ice Co.

• Decision Date: 02 December 1924
• Docket Number: No. 18667.,18667.
• Citation: 267 S.W. 34
• Parties: KOELLING v. UNION FUEL & ICE CO.
• Court: Missouri Court of Appeals

267 S.W. 34

KOELLING v. UNION FUEL & ICE CO.

No. 18667.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from St. Louis Circuit Court', George"E. Mix, Judge.

"Not to be officially published."

Action by Henry Koelling, Jr., by Henry Koelling, Sr., his next friend, against the Union Fuel & Ice Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

DAVIS, C.

This is an action for negligence for injuries resulting from a collision between a Ford car and an eight year old boy, on December 11, 1922, about 3:35 p. m., at the intersection of Sutton avenue and Manchester road, in Maplewood, St. Louis county. The jury returned a verdict for $7,500, and, upon the court ordering a remittitur of $1,500, which sum plaintiff remitted, judgment was entered for $6,000; defendant appealing.

Plaintiff's testimony runs to the effect that Manchester road runs east and west, and Sutton avenue north and south, with a slight jog at the intersection in Sutton avenue; that portion of Sutton avenue running south from Manchester being slightly west of that portion running north. On said day plaintiff with a companion boarded a coal wagon, having a step on the rear, and rode thereon some distance, probably less than two blocks, to the southwest corner of Manchester road and Sutton avenue. His companion, just before reaching said southwest corner, left the rear step of the coal wagon and ran to the north side of the street, and having gotten near the curb, as all witnesses but one testified, and on the north sidewalk, as that witness testified, beckoned to plaintiff to follow him. Jumping from the step of the coal wagon, plaintiff started to run across Manchester road, when he was hit on the chin by a fender of a Ford car going west, knocking him down and breaking the femur bone of his leg midway between the knee and the thigh.

The Ford car was running between 25 and 35 miles an hour, according to witnesses. All the witnesses testified that no signal was given.

Witness Breeding, for plaintiff, testified that plaintiff was lying almost right on the crossing; that is, a brick crossing that is laid across the street from the north to the south side of Manchester at the west side of Sutton avenue. On cross-examination he testified that the boy was lying something like 30 feet west of the northwest corner and north of the middle line of Manchester road. (This would place the brick crossing opposite the southwest corner).

Witness Ruff, for plaintiff, 13 years age, testified:

"Q. Did the Kuhn boy—he went across first— he wasn't struck, was he? A. No, sir. Q. In what fashioned way did he go across the street; how did he go across, this Kuhn boy? A. Jumped off the wagon and beckoned to that Koelling boy to come, and then the Koelling boy jumped off and it got him."

On cross-examination he testified, in substance, that he saw him (plaintiff) down on the ground mighty quick after he jumped.

Plaintiff's testimony tended to show that the Ford car failed to slow down for the crossing; that the fender on the south side of the Ford, the first fender plaintiff came to, hit him and knocked him down, but the wheels did not run over him.

Plaintiff's witness Kuhn, nine years old, testified:

"I was on the wagon. When we got to Manchester, I got off and went to the corner of the street, and then Henry (plaintiff) followed me and got hit by the machine; that he (witness) had gotten up on the sidewalk before Henry got hit."

Plaintiff's witness Treason testified, in substance, that plaintiff was about 30 feet back of the Kuhn boy that crossed before him.

Defendant admitted that its employee driving the Ford car was making collections and using his own machine, and making collections of bills for the defendant in this case, and that Sutton avenue and Manchester road are open public streets and highways, and were such on the day in question. The evidence tends to show that at the place of the accident the right angular measurement of Manchester road at the west side of Sutton avenue is 46 feet 2 inches.

Plaintiff, eight years old, testified:

"When we got to the crossing there Gilbert ran off and got about halfway across the street and then he motioned for me to come across, and I started to come across, and I don't remember anything else."

On cross-examination the following question was asked and answer given:

"Q. And he jumped off and beckoned to you, and just as soon as he beckoned to you you jumped off the wagon and started right after him? A. Yes, sir."

Defendant's evidence tended to show that the south fender of the Ford car driven by defendant's employee was possibly two or three feet to the north side of the vehicle on which plaintiff had been riding.

Defendant's employee driving the Ford car, testified, in substance, that when he first got a look at plaintiff his chin had struck the fender, and that the car did not go over him; that his left wheels were about 2 ½ feet from the truck coming east, which vehicle he observed just before the accident; that his right wheels were about 3 feet from the mail trucks located at the north curb of Manchester road; that he did not see any children on the back of this vehicle that he met; that he saw some children standing on the corners on the sidewalks; that he saw no one between the curbs of the street; that he was driving the Ford car between 15 and 18 miles an hour, and was not driving 30 miles an hour; that when he came to the crossing he sounded a horn and slowed down, starting at the usual rate of speed of from 15 to 18 miles an hour; that the truck had passed by about 5 or 6 feet when the boy struck his fender; that he did not see any one get down from the truck; that he was driving to the north of the center line of Manchester road going west with his left-hand wheels about 12 feet from the north curb and his right-hand wheels 7 feet from the curb; his left wheels were then about 34 feet from the south curb of Manchester road; that a large army truck was standing on the north curb, extending out 12 or 15 feet; that he had to turn in order to go around this truck; that he was just in the act of turning slightly to the south to avoid the army truck, and had gotten within 5 feet of it, and it was right at the"very time that he turned his wheels to go around the truck that the accident happened; that in proceeding west, due to traffic, his Ford car, about 5 feet wide, was going into an 8-foot space; that going into this 8-foot space, with children on both sides of the street, he did not sound his horn, because he had passed the crossing.

I. Defendant asserts that the trial court erred in letting plaintiff's instruction No. 1 go to the jury. It is as follows:

"The court instructs the jury that if you find and believe from the evidence that on the 11th day of December, 1922, the plaintiff was in and upon Manchester avenue, and that said avenue was an open and public street and highway in St. Louis county, Mo., and that plaintiff was attempting to cross the same; and if you find from the evidence that defendant did then and there drive and operate an automobile along and upon said highway and towards the place thereof where plaintiff was attempting to cross, if you do so find; and if you further find and believe from the evidence that the defendant did then and there drive and operate said automobile at a rate of speed which was then and there high, excessive and dangerous under the circumstances and conditions, if you find and believe them to be from the' evidence, and at a rate of speed which endangered the life and limbs of the plaintiff, if you do so find; and if you further find from the evidence that in driving said automobile at the aforesaid rate of speed there, if you do so find, the defendant was negligent; and if you find that said automobile did then and there collide with and injure plaintiff, if you do so find, as a direct and proximate result of defendant's aforesaid negligence (if you find and believe from the evidence that defendant drove said automobile at the aforesaid rate of speed and was negligent as aforesaid), then the court instructs you that your verdict shall be in favor of the plaintiff and against the defendant."

The allegation relative to the speed of the automobile driven by defendant's employee, is as follows:

"That the defendant did then and there drive and operate its said automobile at a high, excessive, and dangerous rate of speed under the circumstances, and at a rate of speed which endangered the life and limbs of plaintiff."

Defendant's objections to the instruction are: (A) The instruction is too indefinite to furnish a proper guide for the jury; (B) it wholly fails to define the term "negligence," and it is not defined in any other instruction in the case; (C) it assumed that the employee was driving his automobile at a negligent rate of speed at the time of the collision.

Specifications A and B we will consider together. The real complaint is that the instruction is too indefinite, because it did not require the jury to find any facts whatever constituting negligence, but permitted the jury to find defendant negligent, if the automobile was driven at a rate of speed which was then and there high, excessive, and dangerous under the circumstances and conditions. We think sufficient facts to constitute...