Radabaugh v. Williford

• Decision Date: 03 May 1938
• Docket Number: 35013
• Citation: 116 S.W.2d 118,342 Mo. 528
• Parties: Loren Radabaugh, a Minor, by His Guardian and Curator, Jess Radabaugh, Appellant, v. J. S. Williford
• Court: Missouri Supreme Court

116 S.W.2d 118

342 Mo. 528

Loren Radabaugh, a Minor, by His Guardian and Curator, Jess Radabaugh, Appellant, v. J. S. Williford

No. 35013

Supreme Court of Missouri

May 3, 1938

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded.

John W. Noble and Alletha B. Noble for appellant.

(1) The court erred in modifying plaintiff's Instruction 1P by the insertion of the words as a fact in the 15th line of the instruction as it appears in the abstract and by inserting the statement having in fact either of said opportunities as before stated, as appears in the 26th and 27th lines of the instruction as it appears in the printed abstract, which complained of insertions we have italicized or emphasized in the instruction as it appears in the abstract. (a) To require any finding as a fact, or to require that defendant had in fact either of said opportunities (stopping or swerving to the left) as the modified instruction required, is stronger than the law justifies. The requirement should be "find" or "believe and find." The situation is similar, we think, to an instruction which tells the jury that if a charge of negligence remains in doubt after fairly considering the evidence, they should return a verdict for defendant. Such a direction in an instruction is error because the direction is stronger than the law justifies in civil cases, and we think the same is true of the requirement to find as a fact. Valence v. Rosegrant, 80 S.W.2d 708; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 48; Werminghaus v. Eberle, 81 S.W.2d 607; Finn v United Rys. Co., 267 S.W. 421. (2) The court erred in giving defendant's Instruction 1D (a) By the expression 1P given herein in the 10th line of said instruction as it appears in the printed abstract, the jury was again told everything had to be found as a fact and that defendant had to have as a fact either of said opportunities of stopping or swerving to the left. (b) Instruction 1D is further erroneous because of the use of the word must where it tells the jury that before plaintiff can recover he must show by the preponderance or greater weight of the evidence in the case etc., "as set out in Instruction 1P given herein in this case." The use of the word must in an instruction is not to be commended and it ought to be held reversible error in this case, and this because of the instructions emphasizing the importance and absolute necessity of everything being found as a fact, except when the fact finding requirement would have been favorable to the plaintiff as appears in the last sentence of defendant's Instruction 4D. The use of the word must, we think, was wholly unjustifiable here. Privitt v. Jewett, 225 S.W. 129; Klaber v. Chicago, R. I. & P. Railroad Co., 225 Mo.App. 940, 33 S.W.2d 154; Pabst v. Armbruster, 91 S.W.2d 658. (c) The use of the word wholly in defendant's Instruction 1D is undoubtedly reversible error. King v. Rieth, 341 Mo. 467; Newcomb v. Ry. Co., 169 Mo. 409, 69 S.W. 348; Brown v. Wheelock, 83 S.W.2d 912.

Ward & Reeves for respondent.

(1) Respondent contends that the appellant did not make a case for the jury under the humanitarian doctrine. Respondent offered a demurrer at the close of the plaintiff's case and again at the close of the whole case, and duly saved his exceptions on refusal of the court to give them. Plaintiff's theory and evidence do show as a matter of law that this nine year old boy was facing and looking towards the approaching automobile while it traveled twenty-five to forty feet, and he could have instantly stepped back as did his father out of the path of the automobile, as one step would have been sufficient. The plaintiff therefore did not make a case under the humanitarian doctrine, and appellant's authorities cited have no application to the facts relied upon by him in this case. Worth v. Railroad Co., 334 Mo. 1025, 69 S.W.2d 672; Clark v. Railroad Co., 319 Mo. 865, 6 S.W.2d 954; Stanton v. Jones, 59 S.W.2d 654. (2) Under Points I and II, Paragraph 1 of appellant's brief it is contended that the amendment of the plaintiff's Instruction 1P so as to require the jury to find the matters hypothecated "as a fact" and the giving of defendant's Instruction 1D which required in effect the same finding as a predicate of recovery as plaintiff's instruction 1P as modified by the court constitute reversible error. The authorities cited by appellant do not support his contention, and the point raised has been definitely decided against their contention by this court en banc. Mo. Egg & Poultry Co. v. Mo. Pac. Ry. Co., 257 S.W. 477. (3) Under Paragraph 2, Point II, error is claimed in defendant's Instruction 1D on account of the use of the word "must" instead of "should." The cases cited do not support appellants contention, but the last two cases cited on this point in appellant's brief, page 12, specifically hold that the use of the word "must" instead of "should," after hypothecating the requisite facts as the instruction does in the case at bar, is not reversible error. Pabst v. Armbruster, 91 S.W.2d 652. (4) The word "wholly" in the sense in which it was used when considered in connection with plaintiff's Instruction 1P, could mean no more than the words "directly and proximately." There was no evidence in the case from which the jury could have inferred that an act of God or some inanimate cause might have contributed or concurred to cause plaintiff's injury. The jury could not have been misled in view of Instruction 1P and the reference to it in the instruction complained of. If there was error it was harmless error. Alexander v. Railroad Co., 38 S.W.2d 550; McDonald v. Kansas City Gas Co., 332 Mo. 364; Aronovitz v. Arky, 219 S.W. 620.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Loren Radabaugh, a minor, by his guardian and curator, Jess Radabaugh, his father, seeks a judgment of $ 25,000 against J. S. Williford for personal injuries occasioned by Mr. Williford's automobile striking said minor. The appeal is prosecuted from a judgment, after verdict, for defendant.

The accident occurred on the afternoon of June 17, 1934, about the middle of the first block east of the square in Kennett, Missouri, on First Street, an east and west concrete street, forty-two feet in width at the scene of the accident. The day was fair; the street, dry. At the time of the accident a number of automobiles, having tops, were parked at an angle of approximately forty-five degrees, headed northwest, along the north curb; there was no vehicular traffic moving along the street other than defendant's automobile, and one or two automobiles were parked parallel with the curb along the south curb of said First street.

Testimony on behalf of plaintiff was to the effect that Mr. Radabaugh, and his son Loren, who was eight years and seven months old, were proceeding south across First Street over a vacant space between the automobiles parked along the north curb; that when the father and Loren, who was approximately three feet west of his father, reached a point of approximately two feet south of an imaginary east and west line projected by the rear of the automobiles parked along the north curb, defendant's automobile was at a distance of between twenty-five and forty feet east, approaching at a speed of about fifteen miles an hour; that Mr. Radabaugh looked east, saw defendant's automobile, jumped back, grabbed for but missed Loren; that Loren threw up his hands; that defendants automobile continued on its course without slackening its speed or swerving and struck Loren; and that it was swerved a little to the south before it came to a stop between eight and ten feet west of the point of impact. There was testimony that defendant was looking south across the street at the moment of impact.

On behalf of defendant the testimony was to the effect that defendant's automobile was proceeding west about two feet south of the automobiles parked along the north curb; that Loren, proceeding southeastwardly, ran into the traffic way from the side of the parked automobiles and about five or six feet west of defendant's automobile; that defendant turned his automobile a little to the left and applied the brakes; that the bumper of defendant's car did not strike Loren but Loren, not stopping, struck his head against the right front fender; that defendant did not see Loren until he came out into the street from the side of the parked automobiles; that defendant was looking straight ahead and that he stopped his car as soon as possible, within a distance of about fifteen feet, after he first saw Loren.

Plaintiff's case was submitted under the humanitarian doctrine on defendant's alleged negligent failure to stop, to reduce the speed of or swerve his automobile.

A reading of the authorities infra, as well as others, will demonstrate the nonapplicability of defendant's authorities [Worth v. St. Louis-S. F. Ry. Co., 334 Mo. 1025, 1028(1), 69 S.W.2d 672, 673(1), and cases there cited] to his contention that plaintiff failed to make a submissible case. The law does not exact of a child of less than nine years that exercise of care exacted of an adult [Holmes v. Missouri Pac. Ry. Co. (Banc), 190 Mo. 98 105, 88 S.W. 623, 624, 207 Mo. 149, 164, 105 S.W. 624, 628; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1090, 1113, 49 S.W.2d 183, 187(6). Consult 3 Berry on Automobiles, p. 520, sec. 3.342.] This is not a case of a sudden and undiscoverable peril under the testimony favorable to plaintiff. Defendant stopped his automobile within a distance of fifteen feet. It traveled approximately forty feet without changing its course or stopping after Loren was within defendant's range of vision. Defendant could or should have observed Mr. Radabaugh's unsuccessful...