Phillips v. Prugh

• Decision Date: 17 February 1953
• Docket Number: No. 28428,28428
• Parties: PHILLIPS et al. v. PRUGH.
• Court: Missouri Court of Appeals

Page 84

255 S.W.2d 84

PHILLIPS et al. v. PRUGH.

No. 28428.

St. Louis Court of Appeals, Missouri.

Feb. 17, 1953.

Rehearing Denied March 13, 1953.

Warren H. May, of Louisiana, and Evans & Dixon, John F. Evans and Wm. W. Evans, all of St. Louis, for appellant.

James D. Clemens, of Bowling Green (Haley & McGinnis, of St. Louis, of counsel), for respondents.

WEBER, Special Judge.

This is an appeal from the Circuit Court of Pike County, Missouri, wherein the plaintiff Paula Ruth Phillips, fourteen years of age, recovered judgment for her personal injuries and her mother, the plaintiff Laura R. Phillips, recovered judgment for medical expenses, hospital bill, nursing care and future expenses for and loss of services of her minor child, as the result of a collision between a sled upon which the child was riding and an automobile driven by the defendant.

The collision occurred in Ashburn, Missouri, a village of 156 population, at the intersection of Main Street with the County Road from Louisiana, Missouri, on Saturday, December 9, 1950 at about 10:30 a. m. Both streets were gravel surfaced and twenty feet wide with Main Street running east and west and the county road north and south. The weather was clear and cold and it had snowed a week before and about three or four inches of snow and ice had packed on the surface of the streets.

Main Street sloped down eastwardly toward and across the county road, but the intersection itself was more or less level. Paula Ruth and two girl friends of about the same age had gone out to sled ride on the Main Street hill which had been used for that purpose for many years and of which use defendant had notice.

The children had started their ride at the top of the hill about three hundred feet from the intersection. They rode one on top of the other, or, as it was more aptly expressed in my coasting days, 'belly buster' style. They coasted about two hundred feet to a 'leveling off' place where ashes that had been thrown on the street stopped them. One little girl got off and pushed the other two through the ashes, gave another push, jumped back on top and they continued down the hill, traveling on the south side, or their right-hand lane, of the street. Witnesses estimated speed of sleds on that hill at fifteen to twenty miles per hour.

The defendant and his wife were traveling south on the county road in their 1941 Ford Sedan at a speed of ten miles per hour and as the defendant testified, 'might have slowed a little as I went into the intersection'.

The testimony further disclosed that the northwest corner of the intersection was a weeded vacant lot and was part of the same hill Main Street traversed at this point. A driver of an auto proceeding south had to be at the intersection to see the top of the hill, but from a point thirty to forty feet north of the intersection one could see forty feet up the hill and from twenty feet back could see one hundred feet up the hill.

The sled struck the auto at the juncture of the right front fender and running board and the collision occurred in the southwest quadrant of the intersection. Paula Ruth was seriously injured but the amount of the judgment is not in dispute on this appeal.

Plaintiff introduced defendant's deposition and upon his motion for directed verdict being overruled at the close of plaintiffs' case, defendant went to the jury without offering any testimony. The deposition revealed the additional facts that defendant never saw the children but that his wife did and she screamed immediately before the impact; that under all of the conditions prevalent at the time he could have stopped his car in ten to twelve feet.

Only four assignments of error are raised and they are: (1) the court's sustaining plaintiff Laura Phillips' motion to strike a part of defendant's answer (in which he raised the issue of contributory negligence on the part of the mother in permitting the child to sled ride on Main Street when she knew it crossed the County Road; (2) admission of exhibits 1, 2 and 3; (3) the giving of Instruction 2 for the plaintiffs; and (4) overruling defendant's motion for directed verdict.

As to assignment (1), the motion to strike, let it be pointed out that plaintiffs' petition is based solely on the humanitarian doctrine. Defendant contends that while the defense of contributory negligence would not be available to him as against the child he nevertheless should be entitled to plead and prove th contributory negligence of the mother. He cites no authorities but contends that should be the law.

Such a contention is repugnant to the theory of humanitarian cases, because the humanitarian case pre-supposes the negligence of plaintiff, and in spite of it, puts a duty on anyone who does or should see the peril, in time thereafter to stop, swerve, slacken speed or warn, to do so and thus avoid the injury and it has been repeatedly held that contributory negligence is not a defense in humanitarian cases. Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298; Harrow v. Kansas City P.S. Co., 361 Mo. 42, 233 S.W.2d 644; and for further citations on the point see 22 Missouri Digest, Negligence, k83.2(b).

If the injured party's contributory negligence is not a ground of defense it stands to reason that any person responsible for such party could likewise not be charged with negligence, as the basis of the claim is liability in the face of negligence because of the greater duty owing on the part of defendant. Therefore defendant's contention is without merit and we hold the trial court properly sustained the motion to strike the allegation of contributory negligence. Cooper v. Kansas City Public Service Co., 233 Mo.App. 229, 116 S.W.2d 212, loc. cit. 215(5).

As to assignment number (2) the exhibits complained about were photographs of the intersection and they were taken in March after the accident in December. The only difference in the scenes shown in the photographs to that on the date of the accident was the absence of snow. All witnesses testified that the pictures were a fair representation of the scene as of the day of the accident except for the absence of snow and this difference was clearly disclosed to the jury.

The fact that there have been changes in conditions, including even substantial changes, will not necessarily exclude a photograph where the changes can be and are explained so that the photograph as explained, will give a correct understanding of the conditions existing at the time and whether the exhibits are a proper representation and practically instructive is a preliminary question to be determined by the trial judge. 32 C.J.S., Evidence, Sec. 725; Johnson v. Kansas City, Mo.App., 272 S.W. 703; Reed v. Coleman, Mo.App., 167 S.W.2d 125.

Under the explanations made in the testimony, the exhibit in question served as a help to the jury in giving them a view of the scene of the accident, a view of the surrounding territory and the distances involved and were properly admitted into evidence.

Assignments of error numbered (3) and (4) can be considered together. The question then to determine is, do the facts make this a properly submissible humanitarian case, and if so, was Instruction 2 a correct direction to the jury?

We can say without dispute that a sled is not the type of conveyance which can be stopped at will. It must run its course in order to come to a safe stop and the only control that can be exercised over it is the ability to guide and that ability is limited. Its speed is determined by the elements, gravity, the load and the push to start.

A sled coming down a hill at fifteen to twenty miles per hour and...