Thornton v. Stewart

• Decision Date: 03 April 1922
• Docket Number: No. 14128.,14128.
• Citation: 240 S.W. 502
• Parties: THORNTON v. STEWART.
• Court: Missouri Court of Appeals

240 S.W. 502

THORNTON v. STEWART.

No. 14128.

Kansas City Court of Appeals. Missouri.

April 3, 1922.

Rehearing Denied May 1, 1922.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by Eugene Thornton, by next friend, Osha Thornton, against J. H. Stewart. Judgment for plaintiff, and defendant appeals. Affirmed.

Randolph & Randolph, of St. Joseph, for appellant.

O. E. Shultz and Leonard Johnson, both of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $500, and defendant has appealed. The case was submitted to the jury on the humanitarian or last chance doctrine.

Defendant insists that his instruction in the nature of a demurrer to the evidence, offered at the close of all the evidence, should have been given. The facts show that plaintiff, a boy 9 years of age, resided at the northwest corner of Seventeenth and Francis streets, in St. Joseph, Mo. Francis street runs east and west, and Seventeenth street north and south; the two streets were each 30 feet in width. Plaintiff, on the 4th day of November, 1920, in the daytime, came out of his house intending to go to school. In order to get there, it was necessary for him, to cross to the south side of Francis street. He ran from the door of his house to the northwest corner of the intersecting streets, and there hesitated for a moment to permit an automobile, proceeding east on Francis street, to pass him. He then ran directly across Francis street toward the south, but was struck by an automobile being driven by defendant as plaintiff neared the south side of Francis street.

At the time plaintiff left the sidewalk, a companion, seeing defendant's car approaching, told plaintiff to wait a minute but did not tell him the reason for the warning. Plaintiff did not wait, but immediately attempted to cross the street without looking toward the east from whence defendant's car came. At the time plaintiff left the sidewalk, defendant's car was 50 feet to the east, being driven toward the west on Francis street, and going at the rate of about 10 or 12 miles per hour. There was evidence that defendant could have stopped his car in 20 feet, going at that rate. There was nothing to obscure defendant's view; he could have seen the actions of plaintiff, that plaintiff was not looking and was oblivious to his peril. Defendant gave no warning of the approach of his automobile by horn or otherwise.

Defendant testified that plaintiff emerged from behind an automobile, standing at the north curb of Francis street, a short distance west of the northwest corner of the intersection of the two streets, and ran in front of his automobile so close that defendant had no opportunity to avoid the collision. Defendant testified that he slowed his car when he reached the intersection, and that he attempted to avoid the collision by first turning his car toward the south side of Francis street, thinking that plaintiff would stop, but, seeing that plaintiff was not going to stop, he swerved the car toward the north, thinking that he would be able to pass behind plaintiff, but the left front fender of his car struck plaintiff. The jury heard the evidence and decided that that adduced on behalf of plaintiff was to be believed, and, as there was ample evidence to show that defendant, by the exercise of ordinary care, could have avoided the collision after he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of peril and oblivious thereof, the demurrer to the evidence was properly overruled.

It is insisted that the questions asked jurors Liechti and Black on their voir dire were improper, and "had a tendency to prepare the minds of the jury for a sympathetic reception of the evidence on the part of plaintiff." As to the questions asked by plaintiff's counsel of the juror Liechti, no objection was made until after the examination was completed and the questions answered; as to the juror Black, he testified that he operated an automobile, and, when asked if he had had experience with children in the streets in connection with the operation of his car and if that experience would prejudice him in a suit such as one "by a little boy being injured by an automobile operator," this juror was permitted to state that he thought that it might; that "children are mighty careless in the streets and so many times it is not the driver's fault." Then he was asked if the evidence should show that the child was careless "but, if the man operating the car had been exercising the degree of care that an ordinarily prudent person would have exercised he would have avoided it, would you still think that it was the child's fault?" This was objected to, and the following question was then asked: "Even though you think that children are careless, yet you would hold the man operating the car to proper care to take care of them? A. Yes, sir, certainly." The case was tried and submitted on the humanitarian doctrine, and we see nothing improper in reference to the questioning of this juror. The juror had manifested a prejudice against a case such as was first described, and counsel for plaintiff was attempting to obtain information from the juror as to his feeling toward a case of this kind.

It is insisted that the court erred in permitting the witness Sive, a 13-year old boy, to give an opinion as to the speed of defendant's car. This boy showed ample qualification to testify as to the speed at which defendant's car was being operated. He testified that his father owned a car, and that he had driven it "in the country"; that he had at times ridden in the car when his father was driving it, and had watched the speedometer, and that he had ridden in automobiles sufficiently to have an idea of the speed with which defendant's car was being driven.

It is insisted, in the motion for a new trial, that the jury took with it to the jury room plaintiff's refused instructions as well as those given. An affidavit...