Linton v. St. Louis Lightning Rod Co.

• Decision Date: 15 June 1926
• Docket Number: No. 19378.,19378.
• Citation: 285 S.W. 183
• Parties: LINTON v. ST. LOWS LIGHTNING ROD CO.
• Court: Missouri Court of Appeals

285 S.W. 183

LINTON v. ST. LOWS LIGHTNING ROD CO.

No. 19378.

St. Louis Court of Appeals. Missouri.

June 15, 1926.

Rehearing Denied June 24, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Frances Linton, by next friend, against the St. Louis Lightning Rod Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Taylor, Chasnoff & Willson, of St. Louis, for appellant.

John S. Marsalek, John F. Clancy, and Mark Eagleton, all of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages by a minor, suing by her next friend, for personal injuries sustained by her when struck by a truck alleged to have been owned by defendant and driven by one John Berding. There was a verdict and judgment for plaintiff in the sum of $7.500, from which defendant has appealed. The pleadings are not involved; the cause being submitted solely on the humanitarian doctrine.

The assignment of errors raises the following questions: First, that the court erred in refusing defendant's demurrer to the evidence at the close of the case; second, that the court erred in refusing to give defendant's instructions B and F; and, third, that the verdict is excessive.

The record evidence, so much as touches the issues on this appeal, is as follows: Plaintiff at the time of the accident was a little girl 9 years old., She was walking across Chouteau avenue, an east and west street in this city, northwardly on the west crossing line over Chouteau avenue at its intersection with Eighteenth street. The child was holding an umbrella to protect herself and her younger sister from the rain. It was about 4:30 o'clock in the afternoon of October 18, 1023, and the children were returning home from school.

Plaintiff testified in her own behalf, and said that she and her sister were walking at the regular crosswalk over the street, and that her sister was walking slightly in the lead; that just as she (plaintiff) was stepping up on the sidewalk on the north side of Chouteau avenue she was struck and knocked down by a truck, the truck at the time being driven westwardly. She said that it was raining, and that she neither heard nor saw the truck before it hit her.

James D. Haley, testifying for plaintiff, said that he had lived in that neighborhood practically all his life; that he was 24 years of age, and was a newspaper boy selling papers on the northwest corner of the intersecting streets near where the accident happened; that he saw the truck coming up Chouteau avenue, and saw it strike the child; that the truck was traveling west between the north curb of Chouteau avenue and the first or north rail of the car tracks. He said the left front fender of the truck struck the child; that he did not hear any warning given by the truck before the child was struck; that he had had experience in riding in automobiles equipped with speedometers, and that the truck, at the time it struck the child, was running between 15 and 20 miles an hour; that the truck bore the name "St. Louis Lightning Rod Company," and he identified Berding as the driver of the truck.

On cross-examination, this witness stated that at the time plaintiff was struck he thought she was about 10 feet out in the street from the north curb, and that she was walking very slowly, "barely moving." He said she had an open umbrella over her, and that it was misty and the streets were wet; that he picked the child up at the curb; that the younger child "saw the truck before her sister did, because she ran on the sidewalk." On redirect examination, the witness stated that after the truck struck plaintiff same swerved, but that it did not swerve at any time before she was struck; that the truck came straight ahead.

The testimony as to plaintiff's injuries is to the effect that the truck, weighing 4,500 pounds, knocked the child several feet, and that she was thrown on the rock pavement; that she then crawled out from the front of the truck and was taken to the office of Dr. Brown, who was in his office nearby. This physician testified that the child had abrasions on her back over the abdomen; a bump on her head, and a laceration on her limb; that the bruises on her back were of considerable size; that he saw the driver of the truck on the occasion, and (without objection) that he smelled liquor on his breath at the time. After washing the child and giving her temporary treatment, she was carried home by her father.

A day or two thereafter Dr. George T. Meehan was called in to treat the child. He said he found her suffering from a large blood tumor at the occipital region; that this tumor was then about the size of a hen's egg. He also testified that he found abrasions along the muscles of the spine, and that plaintiff was suffering severe pains across the pelvis and lower abdomen; that there were lacerations on the ankle and foot, and that part of her back was discolored, showing evidence of contusion. An X-ray picture was taken, which disclosed no fracture of the bones. This physician said he treated the child continuously, and that he made the last examination in March or April following the accident; that he saw her occasionally from that date until the day of the trial. The doctor gave it as his opinion, and as "reasonably certain" that plaintiff would continue to have discomfort in her back; that the ligaments which control the motion of the spine were affected. He also said that it was "reasonably certain" that the child would suffer menstrual disturbances in the future; that he had concluded from his examinations that the child suffered from irritability, nervousness, and dizziness; that these are the symptoms which could come from the character of the injuries sustained by her, and that they are natural symptoms of head injuries; that in his opinion this condition was permanent. characterizing her injuries as chronic injury to the back and the vertebral muscles and ligaments of the back.

Dr. Robert E. Schlueter, who examined the child by consent of parties, gave it as his view that the disturbance to the nervous system of plaintiff would probably improve and disappear in time. He further stated that it was possible that the child had headaches and pains in her back, for such conditions could exist without objective signs.

Plaintiff testified with reference to the injuries that after she was hurt she did not remember how long she was in bed, but that she was certain she was in bed on Thanksgiving Day of that year, but she was not certain whether she was still in bed at Christmas time. However, she said she did not return to school until the following March; that at the time of the trial she still had pains in her back all the time, and also had other pains; that she was restless and was unable to attend school regularly since she had returned in March after the accident; that her mother would rub her with a remedy three or four days a week, but that ever since the date of the accident she suffered from dizzy spells which made her feel as though she was going to fall over; that she had never had such trouble before the accident. Plaintiff's mother testified that the child was in bed 10 weeks after the accident, unable to get up. Defendant did not stand on its demurrer at the close of plaintiff's case. "

From the defendant's side, we have the evidence of John Berding, the driver of the truck, who testified that he stopped on the east side of Eighteenth street to allow a street car to pass; that it was a bright, clear day; that no rain had fallen on that day at all; that he was driving on the north side of the street about half way between the curb on the north side of Chouteau avenue and the street car tracks; that he saw the little girls running across the street, and that he was watching them, running his truck at a speed so that he could stop it within a foot or two; that he sounded the horn as soon as he left the car tracks on Eighteenth street, which was about 50 feet away from the children. While he admitted that he blew the horn and that the children paid no attention to him, he yet maintained that he never saw them until they were about 4 feet from him. He also testified that the distance from the north curb of Chouteau avenue to the first rail of the street car tracks is about 20 feet; that he had gone south on Eighteenth street to get to Chouteau avenue to turn west and then turn south again on Eighteenth street after traveling on Chouteau avenue for about 50 feet to make the jog in the street, and that plaintiff was injured in running into the front fender of the truck, which caused her to fall.

A police officer, Wallace Stevens, testified for defendant that after the accident he went to Dr. Brown's office and found Berding there; that he inquired who the chauffeur was, and that Berding answered that he was the chauffeur; that the physician then complained to him that Berding was under the influence of liquor, using this language: "I think that man is drinking," whereupon the officer took Berding to the police station. He said that Berding drove the truck, and that he did not think "Berding was intoxicated ; he looked all right to me."

Witness C. W. Ford testified for defendant that he saw the truck going west on Chouteau avenue, and that plaintiff and her sister were going north; that he was looking out of a window in his home and saw the plaintiff about 6 feet from the machine; that she ran up against the machine and was injured; that the machine was traveling very slowly.. On cross-examination, this witness testified that he had changed his opinion about the accident prior to the date of the trial; that he thought the truck was going south on Eighteenth street at first, but that he had changed his mind about it.

On rebuttal, plaintiff introduced Henry C. Gross,...