Linstroth v. Peper

• Decision Date: 03 February 1920
• Docket Number: No. 15849.,15849.
• Citation: 218 S.W. 431,203 Mo. App. 278
• Parties: LINSTROTH et ux. v. PEPER.
• Court: Missouri Court of Appeals

218 S.W. 431

203 Mo. App. 278

LINSTROTH et ux. v. PEPER.

No. 15849.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 9, 1920.

Opinion Filed February 3, 1920.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by William H. Linstroth, Sr., and wife against Madeline Peper. Judgment for plaintiffs, motion for new trial overruled, and defendant appeals. Affirmed.

Alroy S. Phillips and Bryan, Williams & Cave, all of St. Louis, for appellant.

August H. Bolte and Martin T. Farrow, both of St. Louis, for respondents.

REYNOLDS, P. J.

Plaintiffs, husband and wife, parents of a son who was killed when of the age of about seven years, bring this action for $10,000 damages.

The petition is in the usual form, averring the relationship of plaintiffs to the boy; that defendant was the owner of a motor car propelled by gasoline, and that the boy, on or about April 20, 1913, while crossing Newstead avenue at a point between Labadie and Elmbank avenues, was struck, knocked down and run over and killed by the automobile, at the time of the accident so carelessly and negligently operated by defendant through her servant as chauffeur, and at such a high and dangerous rate of speed as to cause the accident. Averring that by reason of the injuries to and death of their child, plaintiffs have lost and will lose the value of his services until he would have arrived at the age of 21 years, and were compelled to and did pay out and become indebted in the sum of $75.75 for the treatment of the injuries to the boy, medical and surgical services, and medicines, and the further snip of $210.50 for funeral and burial expenses, judgment is prayed for $10,000.

The answer, after a general denial, admitting that plaintiffs are the father and mother of the boy, avers that at the time of the accident the mother was in charge of the boy and was proceeding along Newstead avenue; that at the time mentioned the boy was too young to be permitted to run in the streets alone and without proper guardianship and control; that while he was in the company and under the immediate charge and control of his mother, she negligently permitted and directed him to cross and to run back and forth in the roadway on Newstead avenue alone and without proper guardianship and control at a place not intended for nor provided for the use of pedestrians; that the injury complained of occurred while this boy was at or near the middle of Newstead avenue, and occurred by reason of the child negligently coming out into the middle of the roadway of Newstead avenue where he had no right to be and where neither defendant's servant nor any one else had any reason to believe the child would be; that the driver of defendant's automobile could not, by the exercise of due care, have seen the boy in time to have enabled him, by the exercise of due care, to prevent the injury complained of; that the negligence of plaintiffs, as above stated, directly and in a material degree contributed to the injury complained of and which would not have happened but for the negligence of plaintiffs as above set out.

To this a reply was filed, generally denying its averments.

There was a verdict in favor of plaintiff in the sum of $3,000, judgment following, and interposing a motion for new trial, defendant has duly appealed.

The panel being under examination, counsel for plaintiffs mentioned the fact that the defendant was of the Peper Tobacco Company family of St. Louis, whereupon one of the jurors said that he had worked for the Peper Estate. Afterwards counsel for plaintiff told the panel while under examination that defendant was a widow of one of the Pepers, who had died a year before, and asked the panel generally whether they knew this defendant. Counsel for defendant objected to the mentioning of other members of the Peper family, on the ground that the defendant was entitled to have the case tried against this defendant alone without taking into consideration any one else, and moved the court to discharge the jury. Counsel for plaintiff thereupon withdrew the question. Counsel for defendant renewed the motion to discharge the jury, on the ground of prejudice created in the minds of the jury, the Peper family being well known in the city of St. Louis as people of means and wealth and the minds of the jurors having been turned toward the wealth or supposed wealth of the defendant, an issue outside of the case. The court overruled the motion, defendant excepting. This is all that appears in the abstract as to that matter.

During the trial of the case, which was before the court and a jury, it was admitted that the injuries which the boy had received from the accident had caused his death. It was also admitted that the defendant was the owner of the automobile at the time of the accident. It was further agreed that the life expectancy of the boy would be at least 40 years under any mortality table and that the fair and reasonable expense of his last illness, funeral and burial due to the accident and incurred by the plaintiff was $285.75, and it was also admitted that the boy was not married.

There was testimony on behalf of plaintiffs to the effect that at the time of the accident and death the boy was between 7 and 8 years of age—a strong, healthy, lively boy; that he and his mother were walking along Newstead avenue on the afternoon of April 20, 1913, and the boy having occasion to cross the street to attend to a "call of nature," left his mother on the west side of Newstead avenue and ran across and into an alley on the east side of that street. While returning to join his mother and while in the roadway of Newstead avenue, he was knocked down and run over by the defendant's automobile, remained unconscious from that time until he died dying about three days after as the result of these injuries. There was testimony for plaintiffs to the effect that the machine was going at the rate of between 25 and 30 miles an hour and had not slowed down before it struck the boy. The driver of the automobile testified that he was going at the rate of not exceeding 15 miles an hour and that his view was obstructed by a wagon on the side of the street and that he did not see the boy until he was right on him and too late to stop. The testimony on the part of plaintiffs contradicted this statement as to a wagon being in the vicinity at the time and was to the effect that the street at that point was clear of any obstructions.

A witness, Dr. Ball, testified that he was familiar with the neighborhood, passing along there a dozen times a day. He was asked this question: "There has been some testimony here about a telephone pole near the curb line about the south line of this laundry. Did you see that as you came up the street?" Witness answered, "Yes." He was asked to state to the jury "what obstruction that was, if any, of your view of the northwest corner of that laundry as you proceeded up the street?" This was objected to by counsel for the defendant "as calling for a conclusion of the witness and as being too indefinite. I think it is perfectly plain and the jury can tell what obstruction there was." To which the court said: "I do not think it makes any particular difference whether he answers it or not." Counsel for plaintiff said: "He makes a scientific answer here." The court said:

"Let me see what he says. Let me see what a scientific answer is (testimony handed to the court). He just simply says what are the obvious facts. I do not think he helps the jury in any way to determine that. They have heard the testimony as to the location of the poles and where the automobile was."

(Counsel, by agreement, were using the testimony of the witness given at the former trial.)

With that before him counsel for plaintiff read:

"Well, say a distance of 75 feet south from the pole, what obstruction, if any, would that pole be with reference to the view of the opening of that little alley?"

Whereupon counsel for plaintiff said:

"In order for a pole of that kind to he an obstruction of the view of anything you have got to have one point determined. For instance, now, whether or not that lamp (referring to the one in the court room) now between your Honor and I, is an obstruction of my view of you, depends entirely on where I am, and the position of this doctor in the street there is not indicated." The Court: "Seventy-five feet away." Counsel for plaintiff: "On the east side of the street." The Court: "Driving his automobile. You can argue that to the jury. I think there is something in what you say, but the jury can determine that as well as I can. Let it go for what it is worth."

Defendant excepted to this ruling of the court. Counsel for plaintiff, reading from the testimony of the doctor, taken at a prior trial, read this:

"Q. Well, say a distance of seventy-five feet south from the pole, what obstruction, if any, would that pole be with reference to the view of the opening of that little alley? A. None at all."

Defendant introduced a witness, an agent of the Board of Children's Guardians of the City of St. Louis, who testified that it is the duty of the city to provide funds and the duty of the Board to supervise the care of children and board them out in foster homes and in their home when the mother is a widow. As agent of the Board he had been doing that; knew what it cost to rear children in a family in various circumstances in life and at various ages in the city of St. Louis. Food, lodging and clothing would cost about $7 a month for a healthy boy seven years old in a family of father, mother, boy and younger sister, living in the north part of the city and the father earning fifteen or sixteen dollars a week in the packing department of a furniture company; that would include all reasonable expense in rearing the child. Witness was asked by counsel for defendant what the boy would earn in that—when counsel for plaintiff interposed an...