Sullivan v. Chauvenet

• Citation: 186 S.W. 1090
• Decision Date: 06 June 1916
• Docket Number: No. 14388.,14388.
• Parties: SULLIVAN v. CHAUVENET.
• Court: Missouri Court of Appeals

186 S.W. 1090

SULLIVAN v. CHAUVENET.

No. 14388.

St. Louis Court of Appeals. Missouri.

June 6, 1916.

Rehearing Denied June 20, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by James Joseph Sullivan, a minor, by his next friend, against Annie L. A. Chauvenet. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

H. W. Allen and Blodgett & Rector, all of St. Louis, for appellant. Walter B. Douglas and Roebke & Clay, all of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, a minor, suing by his next friend, pleading that on the day named there was in force in the city of St. Louis various ordinances relating to the running of motor vehicles along the streets of the city, avers that on October 2nd, 1912, the defendant was operating an automobile on Union avenue, one of the public streets of the city, and driving the machine northwardly toward Cote Brilliante avenue, Union avenue being a north and south street and Cote Brilliante avenue an east and west street, the latter intersecting Union avenue at right angles at two places, it not being a continuous street, and that under the laws of this state, it is the duty of all persons owning or operating automobiles along the public street to use the highest degree of care that a very careful person would use under like circumstances to prevent injury to pedestrians and upon approaching an intersecting highway to slow down and give a timely signal. It is averred that on October 2nd, 1912, plaintiff was a pedestrian and crossing Union avenue westwardly at the intersection of Cote Brilliante with Union avenue, where and when, by the exercise of ordinary care he could and should have been seen by the driver of defendant's automobile in ample time to have avoided all injury to plaintiff, when defendant, in violation of the duty imposed by law and ordinance, negligently and without using the care required by law to prevent injury to plaintiff, ran the automobile at a high and dangerous rate of speed and in excess of ten miles an hour, and without sounding any warning or giving any signal and without slowing down as the automobile approached the intersection of the street, striking plaintiff with great force and violence and seriously and permanently injuring him. Averring that he had been confined to bed for several weeks in consequence of the injury; that he suffered and will continue to suffer great pain and distress of mind and body; that he was injured about the head, neck, back and shoulders, arms, legs and knees, and internally injured in and about his kidneys and compelled to undergo a surgical operation as the result of which his left kidney was removed, and averring that he has been put to great expense for medicines and attendance, damages are claimed in the sum of $20,000.

The answer, after a general denial, pleads contributory negligence, to which latter plea a reply was filed.

The trial was before the court and a jury and resulted in a verdict in favor of plaintiff for $7,500, from which defendant has duly perfected her appeal.

It appears by the evidence in the case that plaintiff, a boy about fourteen years of age at the time of the accident, playing with other boys, was running south on the east side of Union avenue and when about thirty-five or forty feet north of the intersection of Cote Brilliante with Union on the east and about at the intersection of Cote Brilliante avenue with Union avenue on the west, turned to the west and attempted to cross Union avenue and was struck and knocked down by defendant's automobile. Getting up, he went over to the west side of Union avenue north of where Cote Brilliante enters it from the west. The chauffeur driving the automobile came to him and asked him if he was hurt. He said that he was, and said to the chauffeur, "Why didn't you blow your horn? Why didn't you blow your horn? If you had blown your horn I wouldn't have started across the street." The chauffeur admitted he had not blown the horn but told plaintiff to come on to a doctor, and lifting plaintiff up, put him in the machine and carried him to the office of a nearby doctor. Plaintiff was then taken to his home, the doctor not discovering any external signs of serious hurt, but after he had been home about a week unfavorable symptoms developed, and an examination of plaintiff showed that one of his kidneys had been injured. He was taken to a hospital and it being found that his left kidney had been torn, it was removed. Plaintiff was confined to the hospital some time, but at the time of the trial he was apparently in good condition, surgeons who were called testifying that a person could get along with one kidney as well as with two, provided the remaining kidney continued sound. The accident occurred about eight o'clock at night. Plaintiff testified that he had not seen the automobile at all until it struck him; had not looked for anything on the street before or when he attempted to cross; that when he turned to cross Union avenue and was crossing he was still running and only looked in front of him, looking neither to the north or south; that the first he knew of the presence of the machine it was on him and knocked him down.

The testimony of other witnesses was to the effect that after the machine had struck plaintiff it had been stopped in thirty-five or forty feet from where the accident occurred; that the fender over one wheel was bent, and that plaintiff had been struck outside of the east car track along Union avenue, about a foot west of it.

The chauffeur's testimony is that he was running at the rate of about six miles an hour at the time and had not seen the boy until he was within three feet of him; that he applied the emergency brake to his machine and stopped it within a few feet; that he did not then sound his horn; that to have done so, he would have been obliged to take his hand from the brake.

At the conclusion of the testimony of plaintiff and again at the close of all the testimony in the case, defendant asked instructions to the effect that plaintiff could not recover. These were refused.

At the instance of plaintiff the court instructed the jury that if they believed from the evidence that on the day named the defendant was operating the automobile at Union avenue at the intersection of that avenue and Cote Brilliante avenue, "and that the defendant negligently and without using the care required by law to prevent injury to plaintiff ran said automobile without sounding any warning or giving any signal of its approach, or without slowing down as said automobile approached the intersection of said streets, upon and against plaintiff, striking him and injuring him, and if you believe from the evidence that plaintiff's injury was caused by defendant's negligence in one or more of said particulars above mentioned, and that the plaintiff at the time was exercising ordinary care for his own safety, then your verdict will be for the plaintiff." Defining ordinary care as being such care as would be ordinarily used in like circumstances by boys of the age, experience and intelligence of plaintiff, the instruction further proceeded to tell the jury that the law requires all persons operating automobiles in public streets to use the highest degree of care that a very careful person would use in like or similar circumstances to prevent injury to persons on or travelling over, upon, or across public streets, and the failure to use such care is negligence as that word is used in the instructions.

The court gave instructions of its own motion which are not complained of.

At the instance of defendant the court, by instructions, took from the jury the charge that defendant violated the speed ordinance of the city, and also the charge that defendant, by the exercise of ordinary care, could have seen plaintiff in time to have avoided injury to him, and had run the automobile at a high and dangerous rate of speed and at a rate in excess of ten miles per hour.

The court also instructed the jury that plaintiff was not entitled to recover any damages for medical or surgical...