Putnam v. Unionville Granite Works, 19202.

• Decision Date: 05 December 1938
• Docket Number: No. 19202.,19202.
• Parties: PUTNAM v. UNIONVILLE GRANITE WORKS et al.
• Court: Missouri Court of Appeals

122 S.W.2d 389

PUTNAM v. UNIONVILLE GRANITE WORKS et al.

No. 19202.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Circuit Court, Mercer County; Rex Moore, Judge.

"Not to be published in State Reports."

Action by Charles Putnam, by his natural guardians, Floyd Putnam and Bessie Putnam, against the Unionville Granite Works and others for injuries sustained by plaintiff when struck by an automobile driven by Frank Roseberry. From an adverse judgment, Frank Roseberry appeals.

Reversed and remanded.

Wilder Lintner, of Milan, for appellant.

Scott J. Miller, of Chillicothe, for respondent.

SPERRY, Commissioner.

Plaintiff, a boy aged eleven, by his guardians, his father and mother, sued for damages sustained by him when struck by an automobile driven by defendant Roseberry. Trial to a jury resulted in verdict for plaintiff and against all defendants. Defendants filed motion for new trial, which motion was sustained as to Unionville Granite Works, A. R. Gibson and Wesley Fletcher. While plaintiff filed affidavit for appeal, and an appeal was granted him, because of the action of the court in sustaining the motion for new trial as to the three above named defendants, said appeal is not here prosecuted. The court overruled the motion as to Roseberry, hereinafter referred to as defendant, and rendered judgment against him, from which action he has appealed.

The first assignment of error urged is that the court should have given defendant's instruction in the nature of a demurrer requested at the close of all of the evidence. This necessitates a review of the evidence. In considering the action of the court in this connection we shall be guided by the well known rule that we will consider all of plaintiff's evidence, and that of his witness, together with all reasonable inferences to be drawn therefrom, in its most favorable light to plaintiff, Benson v. Smith, Mo.App., 38 S.W.2d 743, loc. cit. 745; and that plaintiff may also have the benefit of facts favorable to him, developed by defendant's evidence, which his own statements do not contradict and which are not contrary to the fundamental theory of his case, Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, loc. cit. 50.

The petition charges humanitarian negligence alone, and the cause was submitted on that theory. Plaintiff's evidence showed that he was crossing the street on the east side of the court house in Unionville, Missouri, when the accident complained of occurred. The street runs north and south, and plaintiff had reached the east side of the center portion thereof, which is reserved for the parking of automobiles, and was on the point of entering the eastern traffic lane which carries north bound traffic. He paused before entering the traffic way and looked up and down the street to determine if any vehicle was approaching. None was in sight between that point and the corner and he proceeded eastward, walking in a six foot lane running east and west across the street at this point for the use of pedestrians. When he had taken three or four steps out into the traffic lane, defendant's automobile struck him, knocked him down and caused the injuries of which he complains, and the car proceeded on down the street without stopping. There were no other cars, either immediately ahead of defendant or behind him; and defendant's car at the time was traveling at a speed of about 25 miles per hour.

Defendant testified that at about the time the accident occurred he drove his car from the west, around the corner south of the point where plaintiff was injured, turned north in this traffic lane and drove past where the accident occurred; that he did not see plaintiff and did not strike plaintiff or anyone else; and that he was driving immediately behind an "old model" car, at rate of speed of about 10 miles per hour.

No evidence was introduced from any quarter as to the condition of the street, whether wet or dry; as to the visibility of objects (the accident occurred at about 9 P. M.); as to the distance southward from plaintiff, (the direction from which defendant's car approached), at which a person driving an automobile under the condition then existing, could have seen plaintiff in a position of imminent peril; or as to the space in which defendant's car could have been slowed down sufficiently, or stopped, or swerved, so as to have avoided striking plaintiff. Plaintiff wholly failed to submit evidence as to any of the above matters and conditions; and there is none to be gleaned from evidence submitted by defendant.

We think plaintiff failed to make a submissible case under the humanitarian rule, the only theory pleaded and submitted. "The driver's duty under the humanitarian rule began when he saw, or by the exercise of the highest degree of care could have seen, plaintiff...