Llywelyn v. Lowe.

• Decision Date: 20 February 1922
• Docket Number: No. 14255.,14255.
• Citation: 239 S.W. 535
• Parties: LLYWELYN v. LOWE.
• Court: Missouri Court of Appeals

239 S.W. 535

LLYWELYN v. LOWE.

No. 14255.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Rehearing Denied April 3, 1922.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

"Not to be officially published."

Action by Paul Llywelyn, by his next friend, Moses M. Llywelyn, against George C. Lowe. From a judgment for plaintiff, defendant appeals. Affirmed.

E. B. Silvers, of Kansas City, for appellant.

R. R. Brewster and William B. Bostian, both of Kansas City, for respondent.

ARNOLD, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, a boy of five years of age, when struck by an automobile driven by defendant's daughter. The petition charges four specific acts of negligence, as follows:

(1) That the car was being driven at a high, excessive, and dangerous rate of speed.

(2) That the driver saw, or by the exercise of ordinary care could have seen, plaintiff approaching a place of imminent danger and peril in time to have stopped said automobile or turned the same aside before striking plaintiff, but negligently failed to do so.

(3) That the driver saw, or by the exercise of ordinary care could have seen, plaintiff in the street, and saw, or by the exercise of ordinary care could have seen, that plaintiff was a child of tender years, and was likely to go, or about to go, into a place of imminent peril, unconscious and apparently unconscious thereof, in time by the exercise of ordinary care, and by means of appliances at hand, to have put said car under control, or to have stopped the same, or to have turned said car aside, before striking plaintiff, but negligently failed to do so.

(4) That the driver saw, or by the exercise of ordinary care could have seen, plaintiff in the said street, and approaching, or in a place of danger, in time, by the exercise of ordinary care, to have blown the horn on said car, and to have notified and warned plaintiff of the approach thereof, and in time to have permitted plaintiff to withdraw from said place of danger, but negligently failed to do so.

The amended answer was a general denial and a plea of contributory negligence. Upon the issues thus made the cause went to trial to a jury, resulting in verdict in favor of plaintiff in the sum of $3,000, and judgment therefor was accordingly rendered. Motion for new trial was duly filed, and by the court overruled, and defendant brings the case here by appeal.

The record shows that on October 2, 1919, an automobile belonging to defendant was being driven west on Fortieth street in Kansas City, Mo., by defendant's daughter, a member of defendant's household and family. When said car was about opposite a dwelling house in said street known as No. 1512 East Fortieth street, it ran into, against, and over plaintiff, throwing him to the pavement, dragging him about 10 feet, seriously injuring his left leg, and inflicting other injuries upon him of a serious and painful nature.

The testimony shows that at the time and place of the injury there were a number of boys at play in the street. The car was being driven near the center of the street, at the south side thereof. In order to avoid striking the children playing in the street, the driver turned the car toward the north curb, striking plaintiff, who was in the street at that point, about 2 feet from the north curb. The car was being driven at a rate of speed variously estimated at between 10 and 25 miles per hour. After striking the child, the driver swerved the car toward the south side of the street, and stopped it near the curb, at a distance of about 40 feet from where the collision occurred.

On some essential matters the testimony is conflicting—notably as to the speed at which the car was moving; also as to whether the boy was standing still in the street near the curb when struck, or whether he was running toward the car.

As to the speed at which the car was being driven, plaintiff's testimony tends to show that it was about 25 miles per hour, while the driver of the car and another witness testified the car was moving about 10 miles per hour at the time of the accident. Plaintiff's testimony is to the effect that plaintiff was standing about 2 feet from the north curb when struck, while defendant's evidence is to the effect that the boy was running, and in so doing ran against the car, and the injury resulted.

In his points and authorities defendant first objects that the court erred in giving instruction No. 1 for plaintiff, for the following reasons:

"There is no evidence that the plaintiff's injury was the direct result of a high, excessive, and dangerous rate of speed. The instruction must not be broader than the evidence."

This conclusion of defendant is not borne out by the evidence before us. Plaintiff's witness, Patrick Nelson, a young man 19 years of age, an eyewitness to the accident, testified that he had been used to driving automobiles, and was competent to judge by observation the speed at which such cars are driven; that he observed the speed of this car just before and at the moment of the accident, and that at the time plaintiff was struck the car was going 25 miles per hour; that the car carried or dragged the plaintiff about 10 feet; that he saw the rear wheel slide over the boy's leg, and that the car ran a distance of 40 feet before being stopped.

The driver of the car stated she stopped the car as soon as she could, and that it was not going over 10 miles per hour. In this she was corroborated by another witness, a young lady who was also an occupant of the car.

It cannot be successfully contended that there is not an issue of fact presented in the conflicting evidence as to the speed of the car which was for the determination of the jury. We also recognize in this testimony sufficient proof to justify the giving of that part of the instruction complained of, viz.:

"If you further believe and find from the evidence that said car was at said time and place negligently being driven by defendant's daughter at a high, excessive, and dangerous rate of speed, and as a direct result thereof, if you believe and find from the evidence said automobile was being driven at a high, excessive, and dangerous rate of speed," etc.

The instruction sufficiently safeguards defendant, and does not suggest to the jury that the speed at which the automobile was being driven was negligent, but submits that question to the jury. Defendant's citations in support of his objections, when examined, fail to sustain his position. In the case of Woods v. Light & Power Co. (Mo. App.) 212 S. W. loc. cit. 902, cited by defendant, it is said:

"The rate of speed pleaded and submitted was neither ordinance nor statutory, but common-law, speed, and it was for the jury to determine whether or not it was reasonable under the circumstances."

In the case before us we fail to see that the court, in the instruction complained of, characterized the "high, excessive, and dangerous rate of speed," as being negligent, but required the jury to find before recovery could be had that the car was negligently being driven. The giving of the instruction was not error, and defendant could not have been prejudiced thereby. Nipper v. Railroad, 145 Mo. App. 224, 129 S. W. 439; Hooke v. Davis, 166 Mo. App. 249, 148 S. W. 450; Cool v. Petersen, 189 Mo. App. 717, 175 S. W. 244.

Defendant further objects that the giving of plaintiff's instruction No. 2 was error, because (a) it authorized a verdict for plaintiff upon a ground of negligence not alleged in the petition, and (b) because it omits an essential element of the humanitarian rule, to wit, obliviousness to danger on the part of plaintiff.

The first objection is based upon the contention that the instruction required the jury to find, before they could find for plaintiff under the humanitarian doctrine, that the driver of the automobile saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril, in time, by the exercise of ordinary care, and by means of appliances at hand, to have stopped said automobile, or to have turned the same aside, and thus have avoided striking plaintiff, but negligently failed to do so.

The objection is that there is no allegation that plaintiff was in a place of imminent peril; that the second specification of negligence in the petition is that plaintiff was approaching a place of imminent peril, while the third allegation is that he was likely to or about to go into a place of imminent peril.

Plaintiff contends, and rightly so, we think, that the instruction, instead of narrowing the issues against defendant's interest, puts upon plaintiff a greater burden than it was necessary for him to assume. It would seem to be snore favorable to defendant, in that plaintiff was required under this...