McKenna v. Lynch
| Decision Date | 11 July 1921 |
| Parties | FLORENCE McKENNA et al., by Next Friend, ANNIE GREEN, Their Guardian, v. JOSEPH A. LYNCH, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Reversed and remanded.
Bryan Williams & Cave for appellant.
(1) The court erred in giving plaintiff's instruction numbered 2 for the reason that it tells the jury that there is a presumption that the deceased was exercising ordinary care, while at the same time submitting the question of his care as an issue. The evidence with reference to deceased's actions being before the jury, there was no presumption, and it was error to so instruct. Moberly v. Ry. Co., 98 Mo. 183; Schepers v. Union Depot Ry. Co., 126 Mo. 665; Meyers v. City of Kansas, 108 Mo. 480; Rodan v. St. Louis Transit Co., 207 Mo. 392; Hutchinson v. Safety Gate Co., 207 Mo. 392; Stails v. Baking Co., 223 S.W. 89; Brannock v. Railroad, 147 Mo.App. 320; Lee v. Publishers, 55 Mo.App. 390; Mockowik v. Railroad, 196 Mo. 550; Reynolds v. Casualty Co., 274 Mo. 113; Higgins v. Railroad, 197 Mo. 300; Taylor v. Tel. Co., 181 Mo.App. 288. (2) The court erred in giving plaintiff's instruction numbered 2 for the following reasons: (a) When read in the light of the particular facts here, it tells the jury, as a matter of law, that it was not negligence for the deceased to walk in the traveled part of the highway in the middle of the block on a dark night, at a place other than the usual pedestrian's crossing, under the conditions existing in this case, while as a matter of fact this was certainly a question as to which reasonable minds might differ, and therefore for the jury. Jackson v. S.W. Bell Tel. Co., 219 S.W. 659. (b) It singles out a particular fact for the consideration of the jury, and tells them that it is not negligence, and thereby gives it special importance. And "no instances are to be found where such a practice has not been condemned by the appellate courts of this State." Landrum v. Railroad, 132 Mo.App. 717.
John C. Robertson and Phil H. Sheridan for respondent.
(1) Plaintiff's instruction numbered 2, telling the jury that the deceased McKenna was presumed to be in the exercise of ordinary care for his own safety, was proper in this case, as there was no evidence at all of contributory negligence on the part of said McKenna. Buesching v. Gas Light Co., 73 Mo. 219; Riska v. Union Depot Railroad Co., 180 Mo. 168; Eckhard v. Transit Co., 190 Mo. 613; Wiegman v. Railroad, 223 Mo. 718; McGahan v. Transit Co., 201 Mo. 507; Menteer v. Fruit Co., 240 Mo. 186; Goff v. Transit Co., 199 Mo. 706; Weller v. Railroad, 164 Mo.App. 205; Stotler v. Railroad, 200 Mo. 146; Mockowik v. Railroad, 196 Mo. 550; Richter v. Railroad, 145 Mo.App. 1. (3) Plaintiff's instructions numbered 3 and 4 correctly state the law. A pedestrian and the user of an automobile have equal rights upon public highways and each is to use them, bearing in mind the rights of the other. The beggar on his crutches has the same right to the use of the streets as the driver of an automobile; each is bound to use ordinary care for his own safety and the prevention of injury to others. Thompson on Negligence, sec. 1300; Frankel v. Hudson, 271 Mo. 495; Ostermeier v. Imp. Co., 255 Mo. 135; Kinlen v. Railroad, 216 Mo. 145; Carradine v. Ford, 195 Mo.App. 684; Hodges v. Chambers, 171 Mo.App. 563; Meenach v. Crawford, 187 S.W. 879; Blackwell v. Renick, 21 Cal.App. 131; Gray v. Batchelor, 208 Mass. 441; Babbitt on Motor Vehicles, sec. 1257; Brewing v. Railroad, 180 Mo.App. 434; R. S. 1919, sec. 7593; Clark v. Missouri Auto Co., 177 Mo.App. 623; Bonger v. Ziegenheim, 165 Mo.App. 328; Berry's Auto Law, p. 114.
RAGLAND, C. Brown and Small, CC., concur.
This is a suit by the guardian of the minor children of Michael McKenna, deceased, to recover of the defendant damages to said minor children for the death of the said Michael in February, 1918, resulting from being struck by an automobile driven by defendant at the time, westwardly along Laclede Avenue in the City of St. Louis, between Vandeventer and Sarah. The deceased at the time of his death was forty-eight years old, and was a moulder earning approximately $ 1,000 per year. He left surviving him four minor children, a girl fourteen, and three boys, aged thirteen, twelve, and nine, respectively.
The plaintiff's petition contains charges of negligence sufficiently broad to cover the instructions given to the jury.
The answer raised the issue of contributory negligence.
There was evidence tending to show that at the time of the accident it was dark -- there being some dispute as to the nearness of a street lamp to the exact scene of the accident; that the point of the accident was in the middle of the block, and at a point other than a regular pedestrian's crossing; that defendant was driving west at a speed in excess of the rate provided by ordinance, which ordinance was pleaded and proven by the plaintiff; that the defendant was accompanied by one J. E. Bowen, and this witness and the defendant both testified that as they drove west from Vandeventer Avenue and approached the scene of the accident, the headlights were burning and that they were both looking straight ahead all of the time.
The defendant testified that on account of the condition of the weather he could only see directly ahead of him and a little to each side of the machine; that he could see the street ahead of him within the radius of his headlights, and that within that radius he could see approximately 100 feet; that he came west, driving at about twelve miles an hour; that he was looking ahead all the time; that when he first saw McKenna the latter was about ten or twelve feet directly ahead of the machine in front of the left wheel; that he saw him suddenly and did not know where he came from or what he was doing, though he appeared to be walking in the same direction in which he, defendant, was going; that he had been looking straight ahead before he saw McKenna and when he saw him he threw off his power and applied his brakes and threw out his clutch and tried to turn his car; that they came to a sudden stop, his car having skidded to an angle of about forty-five degrees with the curb, and headed northwest; that the front end of the machine skidded around; that the machine did not pass over him; that after the machine was stopped McKenna was lying about fifteen feet from the left rear wheel; that under the conditions as they existed at the time of the accident he could stop his Ford in about fifteen feet; and that on this particular occasion he traveled about fifteen feet after he tried to stop his car, although on cross-examination, he admitted that his car moved a distance of approximately forty-five after he first saw McKenna.
The testimony of the defendant was corroborated by that of Bowen in all essential particulars. No other witness saw the deceased prior to the accident.
Defendant sounded no horn or other warning and there was evidence tending to show that the defendant's automobile could, under the facts and circumstances shown in the evidence, have been stopped after the defendant saw the deceased, if the defendant had been driving at the rate of speed provided in the ordinance or at a lesser rate of speed.
On the other hand, there was evidence tending to show that the automobile of the defendant could not, under the circumstances shown in the evidence, have been stopped after the defendant saw the deceased, even though the defendant had, at the time, been going at the ordiance rate of speed or even at a lesser rate than that fixed by the ordiance.
The verdict and judgment were for plaintiffs. Defendant appeals.
The assignments of error are all predicated on the action of the court in giving and refusing instructions.
Among others, the following instruction was given at plaintiff's instance:
"You are further instructed that the burden of proving contributory...
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