Scoggins v. Miller

• Decision Date: 02 April 1935
• Docket Number: No. 22884.,22884.
• Parties: SCOGGINS v. MILLER.
• Court: Missouri Court of Appeals

80 S.W.2d 724

SCOGGINS v. MILLER.

No. 22884.

St. Louis Court of Appeals. Missouri.

April 2, 1935.

Appeal from St. Louis Circuit Court, Division No. 18; M. Hartmann, Judge.

"Not to be published in State Reports."

Action by Frank Scoggins against Frederick Miller, guardian ad litem of Edward Miller, an infant, and Frederick Miller individually. From a judgment in favor of plaintiff, the first-named defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was instituted in the circuit court of the city of St. Louis on the 24th day of August, 1931. It is an action for damages resulting from personal injuries received by plaintiff when he was struck by an automobile driven by defendant, Edward Miller. The automobile was the property of Frederick Miller, father of Edward Miller. The accident occurred about 8 o'clock p. m. on May 16, 1931, on South Twelfth street, a north and south street in the city of St. Louis, at a point about ten or twelve feet south of its intersection with Calhoun street, an east and west street in said city.

The amended petition, upon which the case was tried, charged negligence in eight particulars:

1. Excessive speed.

2. Failure to warn.

3. Failure to stop, slow down or swerve.

4. A failure of duty under the humanitarian doctrine.

5. Failure to keep a watch ahead and laterally ahead.

6. Failure to keep a vigilant watch for persons on the street there.

7. Failure to operate the automobile in a careful and prudent manner.

8. Operating the automobile at a rate of speed which prevented defendant from avoiding striking plaintiff.

The amended answer contained the following defenses:

1. A general denial.

2. A plea of contributory negligence that plaintiff, without any attention to where he was going or what he was doing, left a place of safety and started across the street at a point not usually used by pedestrians and in front of automobiles obstructing defendant's view and permitted himself to come in contact with defendant's automobile.

The cause was tried on the 6th and 7th days of February 1933. At the close of plaintiff's testimony the court sustained a demurrer as to defendant, Frederick Miller, father of Edward Miller, and refused a similar instruction as to Edward Miller, and also refused a similar instruction as to Edward Miller offered at the close of all the testimony. The plaintiff then abandoned all of his charges of negligence, contained in his amended petition, except the charge of negligence under the humanitarian doctrine, on which the case was submitted to the jury.

The court, at the request of defendant, Edward Miller, gave his instructions Nos. 5 and 6. A verdict for $4,000 was returned by the jury in favor of the plaintiff, on which a judgment was rendered, and, after an ineffective motion for a new trial, the defendant, Edward Miller, brings the cause to this court by appeal for review.

The appealing defendant makes only two assignments of error: First, that there was no case made under the humanitarian rule; and, second, that plaintiff's instruction No. 1 was erroneous in that it permitted a verdict to be given in favor of the plaintiff under the humanitarian doctrine for failure of defendant to give a warning of the approach of his automobile, and that it did not require the jury to find that plaintiff was oblivious to the approach of said automobile, or that he did not know of its approach. No complaint is made as to the size of the verdict.

Only two witnesses testified as to the facts relating to the accident — the plaintiff and the defendant — so that the issues are narrowed down solely to the question of liability.

Plaintiff's version of the accident is as follows: That the accident happened about 8 o'clock on the evening of May 16, 1931, on South Twelfth street, a north and south street in the city of St. Louis, at a point about ten or twelve feet south of its intersection with Calhoun street, an east and west street in said city; that in plaintiff's estimation Twelfth street there is about sixty or sixty-five feet wide and there are two sets of street car tracks on it; that these two street car tracks are more on the east side than on the west side of Twelfth street; that on that evening he, with his brother driving, had driven down Twelfth street; that his purpose was to see a friend who lived on the east side of Twelfth street in the second house from the corner of Twelfth and Calhoun; that his brother drove the car and parked it right up to the curb on the west side of Twelfth street, probably ten or twelve feet from the corner of Twelfth and Calhoun; that he walked around back of the parked car, stopped on the curb there and saw two or three machines pass, going south, and waited until the track got clear, then, not seeing any more traffic coming from the north, had started across the street; that when he had gotten a few steps out into the street he noticed a machine about a block to the north coming south and thought he would have plenty of time to get across the street and started across; that when he had gotten to a point between the north and south-bound street car tracks he looked up and saw the other machine (defendant's); that by this time he had gotten to the middle of the northbound street car tracks and defendant's machine was right on top of him, about twenty-five feet from him; that when he had gotten to this point in the street the car which he had seen about a block away had passed him and that defendant's car was fifteen or twenty feet behind that car and to the side of it; that he couldn't estimate the rate of speed that defendant's car was going; it was a medium rate of speed and was not going at a high speed; that it appeared that defendant's car kept coming straight on; that it did not slacken in its speed so far as he could tell; that defendant did not stop his automobile and had not sounded any warning at all; that at the time he was struck he was at a point a little beyond the middle of the north-bound car track; that he was hit by the left front part of the machine, like the left front fender; that he did not think there was any traffic coming from the south going north there at that time.

On cross-examination plaintiff testified that it was not yet dark when the accident happened; that he could see north on Twelfth street about two blocks, all the way up to Lafayette, from where he stood on the curb; that while standing there he saw two, three, or four cars coming from the north, and that he remained on the sidewalk until they all got past; that when he saw these machines some of them were just a few feet away and some in the next block approaching the corner, that is, all the way from fifteen to one hundred feet away from him; that he waited until all these cars passed him; that after that, while standing on the sidewalk, he looked north and saw the one south-bound machine which was then in the next block, that is, between Calhoun and Emmett streets; that it was about a block, about two hundred feet distant from him; that this car which he saw was traveling practically on the southbound street car track, not right in the tracks, but practically there; that he did not know whether the lights were lit; that he only saw this one machine then; that he was still on the curb; that he then proceeded to walk eastwardly across the street; that he looked northward again before the accident; that when he looked the second time he was better than halfway across the street; that he did not remember whether he looked northward at any other time after he had left the curb until he had gotten past the center of the street, but he kept watching the northbound tracks; that just one machine was all that he saw coming at the time; that he would not say that he never looked northward but the one time, but he kept his eyes on the north-bound track; that he first saw the automobile that hit him when it was about twenty-five feet from him and had not seen it before; that he did not know if the lights on the car were lit or not; that the front part, the left-hand side of the car struck him; that he did not know what part, the fender or bumper, as it happened so quick; that as he crossed the south-bound car tracks the automobile which he had seen driving in the south-bound street car tracks was approaching the corner and kept on going; that this car was going practically straight and he did not see defendant's car at that time and did not know where it was; that when he had gotten to the middle of the street the car which he had seen passed him on the west or rear of him and it was then that he saw defendant's car, which was then about twenty-five feet away and at that time was going practically southeast with its wheels not over two or three inches of being in the north-bound street car tracks; that he did not see any other traffic except these two automobiles going south after he left the curb on the west side of the street; that there were no other cars parked at the curb on the west side of the street except the car he had gotten out of; that Twelfth street was an exceptionally wide street there; that he was in the middle of the north-bound (east) car track when he saw defendant's automobile; that he did not think he was more than twelve feet or something like that from the (east) curb when he was struck; that the street car tracks were over on the east side of the street.

Defendant, Edward Miller, gave the following version of the accident in his testimony: That he was driving the automobile at the time of the accident, which happened about 8 o'clock; that it was a nice clear summer evening and that he was driving alone, going no place, just driving around; that he was driving south on South Twelfth street and just before he got to Calhoun street there was...