Smith v. Ozark Water Mills Co

• Citation: 238 S.W. 573,215 Mo.App. 129
• Parties: F. M. SMITH, Admr., v. OZARK WATER MILLS CO
• Decision Date: 11 March 1922
• Court: Missouri Court of Appeals

238 S.W. 573

215 Mo.App. 129

F. M. SMITH, Admr., v. OZARK WATER MILLS CO

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from the Circuit Court of Stone County.--Hon. Fred Stewart Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. A Pearson and Jno. L. McNatt for appellant.

(1) The peremptory instruction asked by defendant should have been given. (a) Because under the testimony the decedent was himself contributorily negligent, in riding standing outside on the running board though repeatedly solicited to ride inside, where was ample room and security, and riding on the left or outer side of a rapidly moving car around a right curve, in the darkness, over a much traveled public highway and without suggestion or protest at the hazard, knowing the probability of counter-traffic. J. H. Smotherman v. Railway, 29 Mo.App. 265; Carroll v. Transit Co., 107 Mo. 653; Gabriel v. Railway, 135 Mo.App. 222; Fussellman v. Railroad, 139 Mo.App. 198; Knoxville v. R. & L. Co., 178 S.W. 1120, 132 Tenn. 487, L. R. A. 1916A, 111; Smith v. City, 198 S.W. 1120 (4, 3); Leapard v. Railway, 214 S.W. 268; Wagner v. Kloster, 175 N.W. 840; Lauson v. Fond du Lac, 25 L. R. A. (N. S.) 40. (b) There is no evidence the driver ever saw decedent; it was physically impossible. Decedent was riding on the side of the car from the truck. As the lights came in line with the truck decedent was behind them, and the truck driver necessarily blinded by them. This element of knowledge under the last chance rule was not established; and there is entire absence of evidence that the driver negligently failed to stop from the moment he heard and realized decedent beneath the truck. Abbott v. Elevated Ry. Co., 121 Mo.App. 582; Smith v. Railway, 201 S.W. 569; Branstetter v. Railroad Co., 225 S.W. 1035; Shedron v. Light Co., 223 S.W. 760. (c) The petition charges decedent was seen to be in peril. Obviously if the truck driver could have seen decedent behind the car and the lights, decedent could have seen the truck and made himself secure on the car. The element of the last chance theory, that the driver also realized the decedent was oblivious or helpless, is omitted in both petition and instructions, nor is there any evidence of it. Stark v. Bingham, 223 S.W. 946; Knapp v. Denham, 195 S.W. 1062; Albright v. Oil Co., 229 S.W. 829. (2) The evidence is not sufficiently certain or distinct on which to base the verdict, and the finding is excessive. The age and expectancy of the father was not shown, moreover decedent was living at home lodging and boarding there and no net pecuniary probable loss was shown. Decedent was to have been married in three days when, as like the interest of the parent as a minor deceased is approaching his majority, the status and obligation toward the parents ended. The recovery could only be for pecuniary losses to beneficiaries reasonably to be expected. Defendant was entitled to instruction "A" refused by the court. Bagley v. St. Louis, 268 Mo. 259, 186 S.W. 966; Dinan v. Co., 40 N.Y.S. 764; 17 C. J. 1331, sec. 202; and 1342, sec. 227; Texas Railroad Co. v. Mills, 143 S.W. 690; Smith v. Pryor, 195 Mo.App. 259, 190 S.W. 69; Gurley v. Power Co., 90 S.E. 543; Pickett v. Railroad, 117 N.W. 616, 53 Am. St. Rep. 611; Schulz v. Railway, 223 S.W. 757; Schofield v. Railway, 149 F. 601. (3) Plaintiff's instruction No. 1, concludes with direction as to allowing damages, permitting the jury to find in any amount they think proper within $ 7500, with no reference to the necessary injury resulting or compensatory character of the award. Despite defendant's instruction, this was confusing and misleading. D. & R. G. R. Co., 52 P. 211; Philadelphia & R. R. Co. v. Adams, 33 Am. Rep. 725; Nichols v. Winfrey, 79 Mo. 551. (4) The testimony of Dr. Young, "Did he die from the effects of the wounds," was timely and expressly objected to as calling for his conclusion on the ultimate point to be decided, and invading the province of the jury. It was an issue, denied by defendant and the burden of proof being on plaintiff. Taylor v. Railroad, 185 Mo. 256; Market v. Railway Mail Assn., 226 S.W. 301; Johnson v. Trading Co., 163 S.W. 896, 178 Mo.App. 445; Roscoe v. Railway Co., 202 Mo. 594. (5) That the death resulted from the injuries is not shown. Dr. Young testified the cause was pneumonia, "an accumulation of pus due to the broken rib, or pneumonia" he did not know which. There was no attempt to show pneumonia could or did result from his injuries. Beile v. Protec. Assn., 155 Mo.App. 644.

Moore, Barrett & Moore for respondent.

(1) Plaintiff's petition states a cause of action, and same was properly brought by the Administrator of the Estate of Herbert D. Smith. Johnson, Adm., v. Dixie Mining Co., 171 Mo.App. 134, same case 187 S.W. 1; Smelser v. Railroad, 262 Mo. 25. (2) Appellant's fifth assignment of error cannot stand. The age of the father and mother were shown as was the younger brother and sister and life tables are only persuasive evidence, not conclusive. Bright v. Thacher, 202 Mo.App. 301, 318. (3) Appellant's Instruction "A" was properly refused for if same is the law, marriage of decedent at any time in the future would be a cloak for wrongful and unlawful acts. Authority cited above, local citation, 314 R. S. of Missouri, sec. 4217, Art. 1, Vol. 1; R. S. of Mo., sec. 4219; Vol. 1. (4) Granting that a marriage contract was in existence and that the marriage was to be had the Wednesday following the injury, this court cannot say as a matter of law, that such marriage would have taken place, for ofttimes in the course of human experience, marriage does not always follow an agreement to marry and if such instruction had been given, the jury would have been allowed to deal in the probabilities of the future. (5) In the face of the father and mother's testimony that they know nothing about the day as testified to by Mrs. Morrisett, nor of any showers being given. Plaintiff's instruction 2 was in proper form as an instruction of like character has been approved. Bagly v. St. Louis, 186 S.W. 966, 967, par. 1; Troll v. Gas Light Co., 182 Mo.App. 600, 169 S.W. 337. (6) Plaintiff's instruction No. 3 was proper, under the facts shown, as the petition nor the instruction, need not submit the question of deceased being oblivious to such peril and the driver aware of such fact, as deceased was imperiled under the truck and unable to extricate himself. Knapp v. Dunham, 195 S.W. 1062, l. c. 1063, cited by appellant; 229 S.W. 829, in point; Newton v. Harvey, 202 S.W. 251. (7) The contention of appellant as to testimony of Dr. Young and father to establish the death of deceased is answered very appropriately in the following authorities. Johnson v. Traction Co., 178 Mo.App. 452; Bragg v. Street Ry. Co., 192 Mo. 331-333. (8) As to the question of having lights burning on the truck, and keeping vigilant watch, sounding horn, etc., which stands admitted in this case was not done, convicting appellant with gross negligence that in respondent's judgment amounts to a wilful wrong, see 2 R. S., secs. 7577-7576-7585. (9) And on driving a motor vehicle, the highest degree of care is required. Bongneer v. Zeigenhein, 165 Mo.App. 328; Hodges v. Chambers, 171 Mo.App. 563. (10) In a personal injury case unless the court can say, under all the evidence that no reasonably prudent man would have done as plaintiff did, the question is for the jury. Osborne v. Wells, 211 S.W. 887, 890; Kean v. Schoening, 103 Mo.App. 77; Becker v. Kortop Jew. Co., 175 Mo.App. 279; Aiken v. Sidney Steele Scraper Co., 197 Mo.App. 673, 676. (11) And on contributory negligence and where same is for the jury, see 259 Mo. 654; 186 Mo.App. 83-123; 187 Mo.App. 318. (12) Contributory negligence will not bar recovery under humanitarian or lastchance doctrine. Albright v. Joplin Oil Co., 229 S.W. 829. (13) Where there is a flagrant violation of law or ordinance resulting in injury contributory negligence must be clearly shown. Yonkers v. Railroad, 182 Mo.App. 558; 178 Mo.App. 718; 244 Mo. 1.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--The plaintiff, administrator in this case, obtained a judgment against the defendant, appellant, on account of the death of Herbert Smith, alleged to have been the result of defendant's negligence. It is alleged in the petition and shown by the evidence that the deceased, Herbert Smith, was a young man about twenty-six years of age and lived at his father's home about a mile or so north of Ozark, Missouri. That he had contributed out of his earnings to the support of his father and mother, and was single and unmarried. He started out from Ozark one night on foot going to his home, traveling along the public road. After crossing Finley Creek, over which there is a bridge, he was overtaken by a friend driving an automobile who lived several miles beyond deceased's home on the same road. He stopped and asked the deceased to ride in the car with him but that the deceased stood on the running board and refused to take a seat in the back of the car where it was offered to him by the driver and owner of the car and by another passenger who was in the back seat. After he got on the car, the road he was traveling ran west for quite a distance where it then turned on a curve up a long hill. The evidence shows that while the road was about forty feet wide, the traveled roadway was all on the west side of the road, or the outer rim of the curve going up the hill, and that the east half of the road was not in good condition for traffic. After the deceased took his stand on the running board or step of the automobile, he held a possum out in his left hand which he was taking home, and leaned or sat against the side of the car and held on by...