De Lay v. Ward, 7163

Citation262 S.W.2d 626
Decision Date14 May 1953
Docket NumberNo. 7163,7163
PartiesDE LAY v. WARD.
CourtCourt of Appeal of Missouri (US)

Limbaugh & Limbaugh, Cape Girardeau, for respondent.

Ward & Reeves, Caruthersville, for appellant.

BLAIR, Judge.

This was a law suit for damages to a four-year old girl, Dianne Sue DeLay, brought by her mother and father, as next friends. The little girl will be referred to as plaintiff, and appellant as defendant, so as to avoid confusion. The accident occurred on the afternoon of November 30, 1951, in Bell City, Missouri. The petition was filed on February 22, 1952, alleging negligence of defendant Ward in several respects.

Plaintiff claimed that she received serious, permanent, painful and disabling injuries to her head, face, skull and brain, causing cerebral concussions and lacerations. She alleged that she made large expenditures for medical treatment and X-ray services, with the expectation of further and additional expenses of that character.

Plaintiff asked for judgment for damages in the sum of $15,000. The jury assessed her damages at the sum of $2,000. Being unsuccessful in his motions for directed verdict and his motion for a new trial, defendant Ward has appealed. Considering the immediate nature and appearance of her injuries and the manner of their infliction, plaintiff was indeed fortunate that she was not killed outright. She had made almost complete recovery at the time of the trial in August, 1952.

Unlike many damage law suits, plaintiff called, as her first witness, the defendant, whose negligence is charged to have caused her injuries. As defendant strongly insists that no case of humanitarian negligence was made against him and that the trial court erred in overruling his motions for directed verdict and for a new trial, we will first take up that feature of the case.

The petition charged negligence of defendant in excessive speed of his automobile, in his failure to keep a vigilant outlook for persons on the street, and in his failure to have his automobile under control, while driving the same. He was charged with negligence in failing to sound his horn or to give any warning of his approach. He was also charged with negligence in his failure to turn his automobile to the left and thereby avoid hitting plaintiff.

There was no evidence of the lawful rate of speed at that place or that defendant had time or opportunity to sound his horn. In fact, all of the allegations of defendant's negligence may be reduced to his alleged wrongful acts in his failure to observe the rules required by humanitarian care and caution.

A combine was under repair at the DeLay Garage. There is some dispute about whether or not such combine occupied a large portion of the highway defendant was using in approaching Bell City. At any rate, defendant saw the combine and approached at slow speed the point where it was seen. There was no evidence that defendant was driving at any time more than 20 miles per hour. Plaintiff was playing and chucking or poking rocks or other substances into a sewer outlet, which occupied a portion of the highway on which defendant was driving. As defendant approached the combine, whether or not it occupied a large portion of the highway, plaintiff, a child of four years, suddenly 'darted' from behind such combine across the highway upon which defendant was driving, with his eyes on the combine. There was no evidence that defendant saw plaintiff before his automobile struck her.

We do not question the statement of respondent that, 'In determining the only issue raised by appellant, namely whether a submissible case was made, this court will view the evidence and all reasonable inferences that may be deduced therefrom in the light most favorable to respondent, and affirm the judgment if there is substantial evidence to support it.'

It was the duty of the plaintiff to point out the evidence that should be most favorably viewed by the jury. That rule has no application, unless plaintiff can point out some evidence that may be...

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4 cases
  • De Lay v. Ward
    • United States
    • Missouri Supreme Court
    • 9 Noviembre 1953
    ...too late for defendant to slow down or to stop his automobile or even to warn plaintiff of her deadly peril.' (Italics ours). DeLay v. Ward, Mo.App., 262 S.W.2d 626. The cause has been transferred to this court and we shall review the record as on original appeal. Art. V, Sec. 10, Const. of......
  • Vaccaro v. Moss, 31816
    • United States
    • Missouri Court of Appeals
    • 20 Diciembre 1966
    ...of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Davis v. St. Louis Public Service Company, Mo., 316 S.W.2d 494; Delay v. Ward, Mo.App., 262 S.W.2d 626. While a plaintiff is ordinarily bound by her own personal testimony, it has often been held that she is not conclusively bound by her ......
  • Loyd v. Moore
    • United States
    • Missouri Court of Appeals
    • 18 Mayo 1965
    ...Mo., 344 S.W.2d 108; Daniels v. Smith, Mo., 323 S.W.2d 705; Wofford v. St. Louis Public Service Co., Mo., 252 S.W.2d 529; De Lay v. Ward, Mo.App., 262 S.W.2d 626. Under the humanitarian doctrine, no duty upon defendant to act is imposed until plaintiff comes into a position of imminent peri......
  • Feltner v. Bishop
    • United States
    • Wyoming Supreme Court
    • 26 Enero 1960
    ...the defendant's seeing the child under the conditions depicted by the evidence in this trial. In the late Missouri case of De Lay v. Ward, Mo.App., 262 S.W.2d 626, reversed 364 Mo. 431, 262 S.W.2d 628, 634, 635, Id., Mo.App., 275 S.W.2d 396, a not altogether dissimilar case to the one befor......

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