Reynolds v. Kinyon

• Decision Date: 02 June 1920
• Docket Number: 21185
• Citation: 222 S.W. 476
• Parties: REYNOLDS et us. v. KINYON
• Court: Missouri Supreme Court

222 S.W. 476

REYNOLDS et us. v. KINYON

No. 21185

Supreme Court of Missouri, First Division

June 2, 1920

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge. Action by James F. Reynolds and wife against Albert S. Kinyon for wrongful death. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Robert H. Merryman, of St. Louis, for appellants.

Conrad Paeben, of St. Louis (James T. Roberts, of St. Louis, of counsel), for respondent.

BROWN C. RAGLAND and SMALL, CC., concur. BLAIR, C. J., and GRAVES J., concur. GOODE, J., concurs in the result. WOODSON, J. absent.

OPINION

BROWN, C.

This is a suit by a father and mother for damages sustained on account of the negligent killing of their child, between two and three years old, by running over it with an automobile while driving over Vista avenue, a street in St. Louis. The sufficiency of the petition for the purposes of the case is not questioned. The answer, in addition to the usual general denial, pleads contributory negligence, in that the child, without warning of any kind, suddenly ran into the path of defendant's automobile in such manner that defendant, in the exercise of due care, could not prevent striking it, and that plaintiffs assigned the care and control of the child to one Grace Gallagher as their agent and servant, and that Grace Gallagher was inexperienced and incompetent in the care and control of children, as was known by plaintiffs; that the child had a tendency to run into the traveled part of the street and off the sidewalk, which was known to the servant, who carelessly and negligently permitted him to run off the sidewalk and into the path of defendant's automobile, which she saw, or by the exercise of ordinary care might have seen, approaching in time to have prevented it; also that the parents were negligent in the selection of an agent competent to care for and control the child. Issue was joined by replication.

There is no conflict with respect to the controlling facts. The plaintiffs were young people, and this boy was their only child. He was two years five months and three days old at the date of his death on July 1, 1915. They were in such circumstances that they kept no servant, the wife alone performing all the domestic services, as well as caring for the baby. Mrs. Grace Gallagher was a friend, whose husband, Frank Gallagher, was a soldier of the Twelfth Engineers, stationed at the Chain of Rocks, and she was going to see him that afternoon. Mrs. Reynolds was going to take a street car ride with her cousin to Meramec Highlands later in the same afternoon. The child wanted to go with Mrs. Gallagher to see the soldiers, which the mother permitted, and they left for the camp [222 S.W. 477] at 2 o'clock, while Mrs. Reynolds and her cousin left at 3 o'clock. Mrs. Gallagher returned about 6:15, and went with the child to the Reynolds house, which was on the north side of Vista avenue, the third house east of Theresa avenue, and sat down on the porch with a book to wait for the return of Mrs. Reynolds. She took a book, and the child played in front of the house with other children for a while. He then went to the next door and played with the children there. After a while she called him, and he started back to her, and she glanced at her book. She says that it was no more than two minutes afterward when she looked up and saw him in the street just an automobile struck him. The child was not large enough to step down from the curb 10 inches high, but would turn his back to the street and slide down.

The defendant himself tells the story of the accident substantially as follows: He was driving east along Vista avenue on the south side of the street, which was 36 feet wide between the curbs at that place. There was no one on the street between the curbs that he saw, and no vehicle in sight. He saw people on both sides, but paid no attention to them, because he was watching the machine. He first saw the child, almost in front of the machine, running across the road. Her turned the machine to the left to miss him, the machine struck him, knocked him down, and ran over him. He stopped the machine within 15 feet. Some man picked the child up and ran with it. He did not see the child at all after it was struck. On cross-examination he said that he started to turn the machine to the right. He did not see the child, because he was not watching for children.

Mrs. Kinyon said she was sitting in the seat with her husband. She testified that when she first saw the child he was pitched forward, right in front of the machine, and her husband was trying to stop the machine. None of the passengers in the machine who testified saw the child in the street until he was in front of the machine. One of them said the child was about 2 1/2 feet high. She saw him on the sidewalk with other children as they approached. The view was clear. She did not see him again until she saw him in front of the machine.

Two witnesses who saw the accident testified for plaintiffs. Mildred Lee lived next door to the Reynolds, and saw it get down from the curb, and run across the street and saw the machine hit it. The boy ran about as fast as one would walk.

Mr. Downey lived on the south side of Vista avenue in the same block. He saw the boy run across the street to the front of the automobile, and saw it strike him. He said the child ran at the rate of about 2 miles an hour. The automobile was moving at a speed of 12 or 15 miles an hour.

On cross-examination Mrs. Gallagher was asked by defendant's counsel whether or not after the accident she told Officer Doerdelman at the Reynolds house that "the machine was not going fast at all, and the accident was unavoidable." She answered that she did not remember saying any such thing.

Officer Doerdelman and Thomas were called up by the defendant. Both testified that they went to the Reynolds house, immediately after the accident to investigate. They found Mrs. Gallagher nervous and crying, and she seemed to be in quite a nervous state. They asked her if the accident "was unavoidable," and against the objection of plaintiffs they were both permitted to testify that she said it was. This ruling was duly excepted to, and is assigned as error by the plaintiffs.

The court of its own motion and against plaintiffs' objection gave the following instruction numbered 15:

"The court instructs the jury that the negligence of the servant or agent is imputable to the master or principal to prevent recovery by him for injuries to which the servant's or agent's negligence contributes, and the master or principal assumes the risk of the negligence of the employe. Therefore, if you find and believe from the evidence that on the day of the injury referred to in the evidence plaintiffs assigned the care and control of their minor son to one Grace Gallagher as their agent and servant, and that she, the said Grace Gallagher, carelessly and negligently suffered said minor child to run off the sidewalk and onto the street unattended when she knew or by the exercise of ordinary care, as defined in these instructions would have known, that automobiles were frequently passing on said street, and that she, the said Grace Gallagher, carelessly and negligently suffered said minor child to run off the sidewalk and onto the street unattended in the path of defendant's automobile, when she saw, or by the exercise of ordinary care as defined in these instructions might have seen, defendant's automobile approaching in time, by the exercise of ordinary care, to have prevented said minor from running into the street and in the path of said automobile, then the carelessness and negligence, if any, of said Grace Gallagher is carelessness and negligence of these plaintiffs, and they cannot recover, unless you find that the defendant is liable under the other instructions given in this case.

"And in determining whether the plaintiffs contributed, by their negligent are and custody, if any of their minor child to its injury and death, you are consider whether or not they or their servant and agent, if any, exercised that degree of caution, care, and watchfulness over their child in keeping him off the street and out of danger which was reasonable and proper for parents in their circumstances of life."

To the giving of this instruction the plaintiffs at the time expected.

1. This action being founded upon section 5426 of the Revised Statutes of 1909, which provides that "whether the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured," the first question which arise in natural sequence is whether the act which caused the death of plaintiffs' child was negligent on the part of defendant. We will consider and dispose of the question apart from the questions relating to the contributory negligence presented by the pleadings. In doing this we will refer only to the undisputed facts.

The child was killed in a street in the residential portion of the city of St. Louis devoted to the public use. The public includes the young and old, without necessary reference for physical or mental ability or their means of locomotion. The right of each to upon the street is subject to the obligation to use it with due regard to the safety and use of all. The law expressly recognizes the dangerous character of the automobile in respect to both its speed and...