Quinn v. Berberich
| Decision Date | 21 June 1932 |
| Docket Number | No. 21996.,21996. |
| Citation | 51 S.W.2d 153 |
| Court | Missouri Court of Appeals |
| Parties | QUINN v. BERBERICH.<SMALL><SUP>*</SUP></SMALL> |
Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.
"Not to be officially published."
Suit by Mabel Quinn, an infant, by Emma Quinn, her next friend, against William Berberich, doing business as the Berberich Delivery Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Leahy, Saunders & Walther and J. L. London, all of St. Louis, for appellant.
Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.
This is an appeal from a judgment for $5,000 in favor of plaintiff for personal injuries received by being struck by defendant's motorcycle being driven by one of his employees.
The case was tried upon an amended petition which, among other specifications of negligence, charged negligence under the humanitarian doctrine, and the case was submitted solely on this specification. The defendant filed a general denial.
A general statement of the facts is that plaintiff, a colored girl 7 years of age, was crossing Franklin avenue from the south side to the north side somewhere between the west line of Elliott street and the Criterion Theatre located on the south side of Franklin avenue, walking diagonally across toward the northwest corner of the intersection of Elliott street with Franklin avenue, and, as she reached a point about 2 or 3 feet north of the north rail of the west-bound street car track on Franklin avenue and a short distance west of the west side of Elliott street, she was struck by defendant's motorcycle. Franklin avenue is an east and west bound street, and Elliott street is a north and south bound street which runs into Franklin avenue from the north, but does not cross it. According to the evidence, Franklin avenue is 45 feet 6 inches wide and Elliott street is 38 feet wide, measured from curb to curb; that there is a double street car track on Franklin avenue, the north rail of the west-bound track of which is 16 feet from the north curb of Franklin avenue; that the distance between the west and east bound track in 5 feet, and the distance between the rails on each track is 5 feet, and it is 14 feet 6 inches from the south curb of Franklin avenue to the south rail of the east-bound track; that Franklin avenue at this point is paved with asphalt; that on the northwest corner of the intersection of Elliott street with Franklin avenue is the Goodman Pawnshop which extends along Franklin avenue for 50 feet, and that the sidewalk in front of the pawnshop is 11 feet wide; that a chop suey store is 92 feet from the corner, and that the Criterion Theatre on the south side of Franklin avenue is approximately 55 feet west of the west side of Elliott street, measured to the center of the building; that there is a barber shop, cleaning and pressing place on the south side of Franklin avenue directly opposite the intersection of Elliott street; that just west of the barber shop is a restaurant, and next door west of that is a candy store and then the Criterion Theatre. The Criterion Theatre is three doors west of Elliott on the south side of Franklin and it is 60 or 75 feet between Elliott street and the Criterion Theatre.
Such other evidence as is necessary to be stated upon questions raised in this court will be referred to in connection with such questions as they are considered.
Defendant's first contention is that instruction No. 1, given at the instance of plaintiff, is erroneous because it submitted the question of the ability of the driver to have stopped his motorcycle after he saw the child in a position of peril because there is no evidence upon which to submit that question. We think this contention of the defendant is without merit for the following reasons: George Harris testified that at the time of the accident he was standing on the curb at Franklin avenue on the north side of the street, about 15 feet from Elliott on Franklin west of Elliott; that he saw the motorcycle before it struck the plaintiff; that there was a machine right east of Elliott and the motorcycle passed around that machine on Franklin at the east side of Elliott; that plaintiff and other children were crossing the street, and plaintiff was about 3 feet from the north-bound tracks; that the speed of the motorcycle was between 30 and 35 miles an hour; that he did not see any traffic going east, and that no horn was sounded; that the plaintiff was looking straight in front of her; that the motorcycle did not slacken speed before it hit plaintiff, and did not swerve in either direction, but that it almost upset when it hit her; that she was the last one of the group of children crossing the street. Josephine Turner testified that, when she first saw plaintiff, the latter was nearly ready to enter the eastbound street car track, while the motorcycle at that time was about at the east side of Elliott street; that from the time she observed the motorcycle it did not slacken its speed; that there was no traffic on either the south or north side of the street; that plaintiff was 2 or 3 feet from the north rail of the west-bound track and was about opposite the center of Goodman's Pawnshop; that she thought the motorcycle went 5 or 10 feet before it stopped after striking the plaintiff, so that, according to this witness, the plaintiff was in plain view for the distance of the width of Elliott street, 38 feet from curb to curb, 11 feet across the sidewalk, and 25 feet to the point along the Goodman building where she says plaintiff was struck, a total distance of 74 feet. Another witness, Claude Benton, places the motorcycle when he first saw it and at which time the driver had a plain view of plaintiff, at some 60 or 75 feet east of Elliott street on Franklin avenue, which would place the motorcycle at a distance of some 130 feet east of where plaintiff was struck. Police Officer Eugene Ellsperman heard the screech of the brakes and observed the motorcycle about 30 or 40 feet west of the curb line of Elliott street. The driver of the motorcycle testified that the accident occurred 40 feet west of Elliott street, and that he was 20 or 25 feet west of Elliott street when he first saw the child; that he first saw plaintiff when he was 10 or 15 feet from her; that he stopped in about 2 feet after he struck the plaintiff, so that by defendant's own witness it was shown that the driver was able to stop the motorcycle in from 12 to 17 feet; that he traveled 10 or 15 feet after he saw the plaintiff until he stopped.
The evidence shows that plaintiff was one of a group of children crossing the street, she being the last one of the number, and that she was looking in front of her, and that the other children were just far enough ahead of her to get out of the way.
Accordingly, there seems to be ample evidence, although the evidence of Claude Benton be entirely disregarded, that the driver of the motorcycle had every opportunity to discover plaintiff's position before he says he actually saw her, and therefore the court was warranted in including in the instruction the question of the driver's ability to have stopped after he saw, or by the exercise of the highest degree of care could have seen, plaintiff in imminent peril of being struck.
The driver of the motorcycle is chargeable with having seen what he might have seen [Rodgers v. Railway Co. (Mo. App.) 31 S.W.(2d) 546, loc. cit. 549 and cases cited], and therefore we are unable to see upon what theory it can be said that the would not have seen a group of children at a distance sufficiently ahead of him to have given him every opportunity to have stopped before striking the plaintiff.
The next insistence of defendant against this instruction is that it injected the issue of contributory negligence, although such negligence was not pleaded in either the petition or the answer. Defendant relies for this insistence upon cases where the jury was instructed that, if the plaintiff was guilty of contributory negligence, he could not recover when such contributory negligence was not pleaded by the defendant. Of course those cases have reference to those instances in which the plaintiff has not shown in his effort to make out his own case that he has been guilty of negligence that contributed to his injuries, but counsel have not pointed out to us and we know of no case where an instruction in a humanitarian doctrine case has been held to constitute reversible error because of the inclusion in plaintiff's instruction of such reference to contributory negligence. Under the circumstances of this case, while the inclusion of that issue was improper and ought not to have appeared therein, yet it was not so prejudicial as to warrant a reversal of the judgment. Both of defendant's contentions as to this instruction must therefore be overruled.
The defendant next complains that the court erred in giving instruction No. 2 in behalf of the plaintiff. That instruction told the jury that a person operating a motorcycle in the city of St. Louis is required to exercise the highest degree of care while so doing, and then the court defined what was meant by highest degree of care. The instruction does not include any direction for a verdict, and certainly cannot be erroneous because of the definition contained therein, and no objection is made to the definition given. It is true that it is error to state to the jury a mere abstract proposition of law coupled with a direction for a verdict, and a refusal to give such an instruction is warranted [Baker v. Scott County Milling Co. (Mo. App.) 43 S.W.(2d) 441, loc. cit. 447], and it is also erroneous to give an abstract proposition of law when there is no evidence upon which to base it, but our attention is called to no case where the giving of such an instruction as was here given constitutes reversible error. Even the cases cited by the defendant in support...
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