Roland v. Anderson

• Decision Date: 02 March 1926
• Docket Number: No. 19282.,19282.
• Citation: 282 S.W. 752
• Parties: ROLAND v. ANDERSON et al.
• Court: Missouri Court of Appeals

282 S.W. 752

ROLAND v. ANDERSON et al.

No. 19282.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Neyseba Roland, by Gus D. Roland, his next friend, against Richard Anderson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Wood & Teasdale, of St. Louis, for appellants.

Bartley & Mayfield, of St. Louis, for respondeat.

DAUBS, P. J.

This is an action by plaintiff, a minor, through his next friend, to recover damages for personal injuries sustained by him on September 21, 1922, when he was struck by an automobile on one of the streets in the city of St. Louis. There was a verdict and judgment in favor of plaintiff and against both defendants in the sum of $1,000, from which defendants have appealed.

The petition counts upon several assignments of negligence, but the case was submitted on but two: First, a violation of the city ordinance as to driving a vehicle as near to the right-hand curb as possible; and, second, a violation of the speed ordinance which limits the speed of vehicles to ten miles per hour.

The answer is a general denial, with a plea of contributory negligence; it being alleged that the boy negligently attempted to cross the street without exercising ordinary care to prevent being struck by passing vehicles. The reply is a general denial.

The record shows that plaintiff, a boy 12 years of age, on the afternoon of the day in question, was injured while attempting to cross Easton avenue from the south side to the north side thereof at a point just west of Warne avenue. Warne avenue enters Easton avenue from the north, but does not extend southwardly beyond that street. There were two sets of street car tracks in Easton avenue, which is brick paved, and practically level at that point. Easton avenue runs in an eastern and western direction, and Warne avenue enters same from the north at right angles. Easton avenue is 60 feet wide from curb to curb, and the distance between the outermost rail of the street car tracks and the curb of Easton avenue is about 18 or 20 feet; the tracks being laid in the center of the street.

The boy testified that he walked out into Easton avenue in an attempt to cross same, and that he had not reached the first car track, but was about half way from the first car track to the sidewalk, and that at that point something happened to him, and he did not know what it was, except that he was knocked unconscious, and he did not become conscious again until he was on the operating table at the hospital, when he discovered that his head, left leg, and right shoulder were severely injured.

Plaintiff introduced other witnesses, who testified that immediately after the accident they saw automobile skid tracks near the north rail of the west-bound car tracks and slightly to the west of the center of Warne avenue, which extended over into the direction towards an automobile which was parked at the north curb along Easton avenue. The defendant Anderson identified these skid marks, according to witnesses, as having been made by his machine, and this defendant at the time also admitted that his machine had struck the boy. This defendant on the witness stand also admitted that the automobile which struck plaintiff had been bought by his mother as a gift for him, and that the other defendant, O'Toole, was his nephew, and the grandson of Anderson's mother. The mother was a very old lady, 89 years old, and had never personally driven the machine, and, in fact, she had died before the trial.

It is in evidence that on the day plaintiff was injured the defendant Anderson had started home on the street car, when he saw the automobile which his mother had bought for him being driven by his nephew on the street. He then left the street car and entered the machine; the defendant O'Toole driving. Both of the defendants lived in the same house and were on their way home when the accident happened; the defendant Anderson sitting in the left rear seat of the automobile, with defendant O'Toole in the front seat at the steering wheel. They drove westwardly on Easton avenue, with their machine, they say, astraddle of the north rail of the west-bound street car track. The evidence is abundant, indeed cumulative, that the machine was being driven at the time the boy was hurt at a rate of speed from 12 to 15 miles per hour. The testimony of the defendants themselves show this. It appears from defendants' testimony that when they approached the point where the boy was struck they encountered a parked truck near the north curb a few feet west of Warne avenue, possibly 5 or 6 feet, and that their automobile was passing out into the street to the left of this truck when the injury occurred. It was defendants' version that the boy was running across the street in a diagonal manner from behind a street ear, and that he was running so rapidly that it was impossible for the defendants to stop and avoid the accident.

The boy testified that he was walking straight across the street, not running with his head down, as the defendants testified, but walking, and that he was struck before he reached the center of the street (60 feet wide between the curbs), walking from south to north; the north side being the right side for vehicles driving west.

That the defendants were violating a city ordinance in traveling in excess of 10 miles per hour at that point is not open to debate. It was shown by the skid marks in the street that defendant's machine skidded quite a distance, between 40 and 50 feet, though it is not clearly shown whether the skidding began some time before striking the boy, or whether the boy was dragged that entire distance before the car was stopped. Witnesses for plaintiff testified that the defendant Anderson admitted the facts with reference to the skid marks and the dragging of the boy in the street. Before the car was stopped it had been guided into the curb. So the question as to whether or not the speed ordinance was violated certainly was one for the jury, as was also the question of the violation of the ordinance requiring defendant to drive his machine "as near the righthand curb as possible," as we will later point out. But further as to the question of contributory negligence, the main point in the case.

No definite rule can be laid down as to whether a child 12 years old may be declared to be guilty of contributory negligence as a matter of law. That depends upon the circumstances attendant. The conduct of a boy 12 years old should not be measured by the standard of care applied to an adult. So much is clear. Mann v. Railroad, 100 S. W. 567, 123 Mo. App. 491. A boy of that age lacks the elements necessary to exercise the discretion, thoughtfulness, and judgment presumed to be attributed to an ordinarily prudent adult person. As was said in the Mann Case:

"Thoughtlessness, impulsiveness, and indifference to all but patent and imminent dangers are natural traits of childhood, and must be taken into account when we come to classify the conduct of a child." Anderson v. Railway, 61 S. W. 874, 161 Mo. 411; Burger v. Railway, 20 S. W. 439, 112 Mo. 238, 34 Am. St. Rep. 379.

This boy testified that he was not going from immediately behind a street car, but that the street car had already passed some distance, and that he was walking across the street, and was struck before he reached the first rail; that is, the nearest rail to him on the left-hand side of the street, considering the direction in which defendants were driving. `The boy testified, and it is not disputed, that he was knocked unconscious by defendant's automobile. It is true, defendant's witnesses say the boy was running diagonally across the street with his head down. That is not plaintiff's proof. Plaintiff's proof is that he was walking to...