Troll v. Ehrler Drayage Co.

• Decision Date: 03 January 1914
• Citation: 254 Mo. 332,162 S.W. 185
• Parties: TROLL v. EHRLER DRAYAGE CO.
• Court: Missouri Supreme Court

162 S.W. 185

254 Mo. 332

TROLL v. EHRLER DRAYAGE CO.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

1. MUNICIPAL CORPORATIONS (§ 706)—ALLEYS —RUNNING OVER CHILD—NEGLIGENCE—NOTICE —EVIDENCE.

Evidence of the shouting to the driver of a team in an alley by a little girl, and of her action and demeanor, and of his seeing her, held sufficient to go to the jury on the question of sufficiency of notice to him of danger to be apprehended if he started up, as regards his negligence in so doing, and running over a child.

2. MUNICIPAL CORPORATIONS (§ 705)—INJURIES TO CHILD — USE OF ALLEYS — NEGLIGENCE.

The driver of a team in an alley, starting it with notice that danger to some one or something was to be apprehended if he did so, was guilty of negligence, making his master liable for his running over a baby playing by one of the wagon wheels, though he did not and could not foresee the actual consequence.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Harry Troll, curator of the estate of Joseph Kozlowski, a minor, against the Ehrler Drayage Company Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Leahy, Saunders & Barth, of St. Louis, for appellant. Ellerbe & Brokaw, of St. Louis, for respondent.

BLAIR, C.

One of respondent's wagons was driven over appellant, crushing off his left arm, and this action was instituted in the circuit court of the city of St. Louis to recover damages therefor. This appeal is from a judgment on a verdict the court directed for defendant at the close of plaintiff's evidence.

At the time he was injured, Joseph Kozlowski was 18 month old. About 2:30 p. m., August 17, 1908, this child was in charge of his (then) 10 or 11 year old sister, and the two had been in a yard from which a covered passage 3 feet wide, 10 feet high, and 20 feet long led eastwardly into the alley running north and south through the block between Ninth and Tenth streets and south of O'Fallon street. Respondent's wagon, in charge of a negro driver, was standing on the east side of the alley, across from the entrance to the passageway described; the horses' heads being to the south. There was evidence tending to show that the sister of the injured child momentarily left him, and when, on re-entering the yard she saw he had gone into the alley, she ran through the passageway and on approaching the alley entrance saw the child near the rear wheel of respondent's wagon and saw the driver getting on the wagon and getting ready to start the horses. She testified she ran through the passageway and as she ran out into the alley she "hollered at" the driver, "Hey, mister, stop;" that he turned around and looked at her but "didn't notice" and "didn't listen" and did not stop but struck the horses with his whip, driving on and over the little boy who was playing by the wheel of the wagon.

The children had entered the yard they were in from the alley, coming straight up the alley but a minute or two before the little boy re-entered it, and it is a fair inference the wagon was then in the alley, but there is no evidence whether the driver was in a position to see the children at that time. As the little girl entered the alley and cried to the driver to stop, she was greatly agitated and was running at the top of her speed toward the child near the rear wagon wheel. There is evidence she was quite beside herself with excitement. The wagon was 14 feet long and 7 feet wide, and the load upon it was higher than the driver's head when he was seated, but the evidence tends to show he was standing on a step or footrest on the front of the wagon when the little girl shouted to him to stop. There was also evidence he could have easily glanced along the side of the wagon and would then have seen the child near the wheel, and evidence the child was seen a few moments before "wandering around in the alley." After injuring the child, the driver did not stop his team until arrested a block or so away from the scene.

There was other evidence on other matters, but that stated is all that relates to the question whether there was sufficient evidence of negligence to take the case to the jury, and this is the question presented by the appeal.

It was the duty of the trial court, in...