Tupman's Adm'r v. Schmidt

• Decision Date: 11 May 1923
• Citation: 200 Ky. 88,254 S.W. 199
• Parties: TUPMAN'S ADM'R v. SCHMIDT ET AL.
• Court: Kentucky Court of Appeals

254 S.W. 199

200 Ky. 88

TUPMAN'S ADM'R v. SCHMIDT ET AL.

Court of Appeals of Kentucky.

May 11, 1923

Rehearing Denied Sept. 25, 1923.

Appeal from Circuit Court, Kenton County, Common-Law and Equity Division.

Action by Woodrow Tupman's Administrator against George Schmidt and others. Judgment for defendants on directed verdict, and plaintiff appeals. Reversed, with directions to grant a new trial.

Robert C. Simmons and T. J. Edmonds, both of Covington, for appellant.

H. A Nieberding, of Cincinnati, Ohio, for appellees.

TURNER C.

On the 10th of January, 1921, Woodrow Tupman, an infant then six years one month and ten days old, was run over and killed by a one-ton Ford truck operated by an employé of appellees.

This is an action by the administrator of the infant seeking damages for his death because, as alleged, of the negligence of appellees, through their employé, in the operation of the truck.

On the trial below, at the conclusion of all the evidence, the lower court directed a verdict for the defendants, and the correctness of that ruling is the only question presented.

The essential facts are undisputed, although as to minor details there is some difference in the statements of the witnesses.

Decedent together with a companion, 10 years of age, was sent from his home in Covington on an errand to Silverman's grocery, on Fifth street in that city. The two boys took with them the toy wagon of the smaller one, and when they reached the grocery appellees' truck was standing at or near the entrance to it parked at the curbing. The employé was engaged in delivering for his employers, who are wholesale grocers supplies to retailers, and was at the time delivering a consignment to Silverman. When the two children reached the grocery appellees' employé was delivering the goods to Silverman and had the tailgate of his truck down for that purpose. The body of the truck extended three feet and nine inches beyond the rear axle.

The older boy took his bucket and went into the grocery to purchase the article they had come for and left the younger one out in front with his wagon. Appellee's employé had finished delivering the groceries before the older boy returned from the inside of the building, and came out and went to the rear of his truck to close the tailgate preparatory to leaving. He found the Tupman child with his little wagon just at the rear of the truck and picked him and his wagon up and placed them on the sidewalk and told the child to stay there, that he (the driver) was going to back up. There was parked just about three feet in front of the truck another machine or automobile, and this made it necessary for the driver, in order to get his truck out into the street, to first back it. After placing the boy and his wagon on the sidewalk, the driver went to the front of the truck, and, it being cold weather, he had some difficulty in getting the engine started, it being necessary for him to crank it four or five times, and in this operation he must have consumed only a short time. He then stepped to the sidewalk and looked back, but did not see the child or his wagon, but did see some other boys playing a short distance away, but did not see decedent among them. He then got in the truck, threw the machinery in reverse, and began to back right away, and in doing so backed the rear outside wheel over the infant, and, before he was notified by persons on the street, had backed far enough to cause the front outside wheel to also run over the boy. While he was backing the Ford engine was making a great deal of noise, and it is probable he did not hear for that reason the several screams and warnings that persons on the street undertook to give him but promptly stopped when first apprised of them. as our conclusion on this appeal rests very largely on the evidence of the driver, we will quote freely from it, as the question of law involved must be applied chiefly on the facts as stated by him.

The driver, after stating he was a married man and employed by appellees, and that he had had four years' experience in operating Ford trucks, on his main examination said:

"A. I delivered the groceries in the store and handed Mrs. Silverman the bill, and come out and closed up my tailgate, and a little boy was standing there with his wagon, out in the street, and I picked him up and put him on the sidewalk and told him to stay there, that I was going to back up.

Q. What then? A. Then I went up in front and started the machine, it was cold, and I had to crank it four or five times. After I started it I stepped to the side and looked back. Everything was clear. I got in the cab, blowed the horn, looked back, and started up.

Q. Did you see the boy at that time? A. No; I never seen him after I put him on the sidewalk until he lay a corpse."

On cross-examination, upon being asked how long he had been at the grocery before starting to leave, he said:

"A. I had been there maybe 10 or 15 minutes--something like that.

Q. When did you first notice these boys; where did you first see them? A. Kids are always playing there, and this little fellow was standing back of my machine when I went to close my tailgate.

Q. Is that the first time you noticed him? A. Yes, sir.

Q. Then when you closed up the tailgate what did you do? A. I picked the little boy up and put his wagon and put him on the sidewalk.

Q. Was there other children there? A. None but this little fellow in back of the machine; others were on the sidewalk, playing.

Q. Then what did you do? A. I went then to crank the engine. I looked down the sidewalk and everything was clear, and I got up in the cab.

Q. Where was the little boy then? A. I did not see him then, after I put him on the sidewalk.

Q. Did you see the little wagon then? A. No, boys were playing up above, but I didn't see him.

Q. You did not see what became of this little boy? A. No, sir; there were so many there.

Q. You did not see the one that had been behind there with the wagon? A. No, sir; not after I put him on the sidewalk. * * *

Q. How long after you cranked the engine was it before you started to back? A. Well, right away as soon as I got in the cab and throwed it in reverse.

Q. Then how far did you back? A. I just backed far enough to make my swing out in the street to make my turn.

Q. How far would that be? A. That is about six or eight feet--something like that."

Further along in the cross-examination, in referring to the notice given to him by a man on the street, he said:

"Q. You heard him without any difficulty? A. Yes; when he hallooed.

Q. That was the first thing you heard? A. Yes, sir.

Q. Then how soon after that did you stop? A. Just as soon as he hallooed I stopped.

Q. You had already backed about eight feet and then started to go forward when he hallooed? A. I was just going to start forward.

Q. Had not you moved forward at all? A. Not that I remember."

Under this evidence, if the driver had been dealing with a normal adult in full possession of his faculties and senses, it appears to be indisputable that he was free from negligence. But he was dealing with an infant of tender years. As a normal man of reasonable intelligence he knew from the size and appearance of the infant he had not reached the age of discretion, and that one of such age is ordinarily incapable of understanding the force or effect of a warning of danger and incapable of appreciating any danger which he might incur by disregarding such warning. His childish instinct, and possibly his...