Petty v. Henroid
| Decision Date | 09 June 1958 |
| Docket Number | No. 1,No. 46362,46362,1 |
| Citation | 313 S.W.2d 688 |
| Parties | Paul PETTY, by his next friend, Lovell Petty, Respondent, v. Homer L. HENROID, Appellant |
| Court | Missouri Supreme Court |
Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for appellant.
Robert A. McIlrath, Flat River, for respondent.
HOLMAN, Commissioner.
Late in the afternoon of August 15, 1955, Paul Petty, a four-year-old pedestrian, received personal injuries when he ran into defendant's automobile as he was crossing East Main Street in Flat River, Missouri. He instituted this action (through a next friend) to recover damages for his said injuries and obtained a judgment in the trial court for $10,000. Defendant has duly appealed therefrom, contending that plaintiff failed to make a submissible case and that the court erred in giving each of three instructions offered by plaintiff.
The casualty in question occurred at the intersection of Main and Mitchell Streets. Mitchell runs north and south and Main east and west. Main Street at that point has a paved surface eighteen feet wide and a nine-foot blacktop shoulder on each side. The vehicular traffic on Main Street was heavy at that time. The Petty home was located a short distance south of Main Street. On the instant afternoon plaintiff and two brothers had been playing at the Campbell home which was located a few blocks north of Main. Judy Petty, accompanied by Brenda Jones, had gone to bring her brothers home. Two of the Campbell boys were with them. It therefore appears that plaintiff was the youngest of a group of seven children (the oldest was ten) that was proceeding southwardly down Mitchell Street en route to the Petty home.
The two girls were walking some distance ahead of the five boys. When the girls reached the intersection they proceeded across Main Street and stopped on the other side to wait for the boys. When the boys reached Main they stopped and waited for a westbound car to pass. At that time the older boys saw defendant's eastbound car approaching the intersection. According to the witnesses for plaintiff, as soon as the westbound car had passed, plaintiff started to run across the street. At a point one or two feet south of the center line plaintiff ran into the left fender and bumper of defendant's car and was thrown to the north edge of the pavement. His main injury was a fracture of the right femur. A motorist approaching from the west has a view of the instant intersection for at least 450 feet.
Defendant admits that he did not sound a warning or reduce the speed of his car before plaintiff was struck. He testified that he approached the intersection at a speed of 25 or 30 m. p. h.; that he saw the two girls on the right side of the street when he was 120 feet from the intersection but could not see the boys on the left because of the westbound cars; that as he entered the intersection a westbound car cleared the same and then he saw that the group of boys had run into the middle of the westbound lane; that he started to put on his brakes but noticed that the boys had started back off the pavement; that just at that time plaintiff struck his car.
Dale Short, who appears to have had an unobstructed view of the occurrence, testified for the defendant. He was driving westwardly and saw the boys when he was 300 feet from the intersection. He stated that after the car ahead of him had passed the boys, they started across and when they reached the center of the westbound lane most of them stopped, but plaintiff kept going and ran into defendant's car. His exact words were: 'Most of 'em run about half-way through the west lane all except the little boy and when they stopped he kept going.'
Plaintiff's verdict-directing instruction hypothesized conjunctively that defendant negligently 'failed to keep a vigilant watch for children on said street or highway, in or approaching the path of said automobile, and * * * failed to sound any warning of his approach and * * * failed to slow down his automobile * * *.' Defendant contends that no submissible case was made because there was no evidence that the hypothesized negligence was the direct and proximate cause of plaintiff's injuries. In other words (even though the submission was one of primary negligence), defendant contends that he should not be held liable unless he could have seen plaintiff in a position of peril in time to have taken one of the hypothesized means to have avoided injuring plaintiff.
We have concluded that plaintiff made a submissible case. There was evidence from which the jury could reasonably have found that defendant could have seen the children on each side of the street before his car reached the intersection. That should have alerted defendant to be on guard for some thoughtless or impulsive act which may be expected from young children. Schmidt v. Allen, Mo.Sup., 303 S.W.2d 652. There was also evidence which could reasonably support a finding that defendant could have seen plaintiff from the time he left the group of boys at the edge of the street and proceeded across the pavement. From those facts and circumstances the jury could reasonably have found that the injuries suffered by plaintiff resulted from the failure of defendant to keep a proper lookout and his failure to warn plaintiff of the danger of proceeding across the highway and into the path of his car. Scaggs v. Uetrecht, Mo.Sup., 244 S.W.2d 17.
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Hildreth v. Key
...Louis Public Service Co., Mo., 247 S.W.2d 773, 777-778(4); Gillis v. Singer, Mo.App., 86 S.W.2d 352, 357(5). See also Petty v. Henroid, Mo., 313 S.W.2d 688, 689-690(2); Robertson v. Scoggins, Mo.App., 73 S.W.2d 430, What we have written concerning submissibility of the case is largely dispo......
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Langhammer v. City of Mexico, Mo.
...instruction one or in refusing to give the city's instruction D-3. The instruction on the measure of damages was erroneous (Petty v. Henroid, Mo., 313 S.W.2d 688), the plaintiff tacitly concedes the fact; and since the only error in the trial of the case concerned that issue, there being no......
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Harris v. Lane, 31625
...the intersection, or that defendant could have seen him any appreciable length of time sooner than he did. Plaintiff cites Petty v. Henroid, Mo., 313 S.W.2d 688; Scaggs v. Uetrecht, Mo., 244 S.W.2d 17; Hildreth v. Key, Mo.App., 341 S.W.2d 601; and Edwards v. Dixon, Mo.App., 298 S.W.2d 466, ......