Wapelhorst v. Lindner, 44055
| Decision Date | 12 July 1954 |
| Docket Number | No. 1,No. 44055,44055,1 |
| Citation | 269 S.W.2d 865 |
| Parties | WAPELHORST et ux. v. LINDNER |
| Court | Missouri Supreme Court |
Francis R. Stout, Richard M. Stout, St. Louis, for appellants.
W. H. S. O'Brien, Dearing & Matters, Will B. Dearing, Hillsboro, for respondent.
LOZIER, Commissioner.
Plaintiffs-appellants (herein called plaintiffs) sued defendant-respondent (herein called defendant) for $15,000 damages for the alleged wrongful death of plaintiffs' son, Robert Wapelhorst. The verdict and judgment were for defendant and plaintiffs appealed.
Nine-year-old Robert died immediately after the bicycle he was riding was struck by defendant's automobile, driven by defendant. Plaintiffs went to the jury upon defendant's primary negligence in failing to see Robert 'approaching and upon said highway' and 'to sound a horn or other warning of the approach of his said automobile.' Plaintiffs now allege error: In the refusal of their requested Instructions A and B, the only instructions they offered submitting defendant's humanitarian negligence; in the rejection of evidence and in improper argument of defendant's counsel. Plaintiffs also contend that the verdict was 'against the facts admitted by defendant's own testimony.' Defendant contends that, as plaintiffs failed to make a submissible humanitarian case, Instructions A and B were properly refused.
The collision occurred in the south lane of U. S. Highway 50 or Manchester Road in St. Louis County, a short distance west of the driveway or entrance to the Dreamland Tourist Court (on the south side of the highway). The pavement is 40 feet wide. The two 10 foot north lanes are for westbound traffic and the two 10 foot south lanes for eastbound traffic. About a half block east of the tourist court, the highway intersects Barrett Station Road. On the southeast corner of that intersection is the Witte 'drive-in' store property, the store building itself being some distance east of the intersection. Robert lived with his parents (instant plaintiffs) in their home and automobile repair garage on the south side of the highway about a block and a half west of the Witte store property.
In the late afternoon of October 7, 1952, Robert's father sent him to the store to get some notebook paper. Sometime later, a few minutes sfter 6 p. m., the father (then working outside the garage) heard It took him about two minutes to get there. Robert was lying on the highway shoulder east of the tourist court driveway, about 6 feet from the pavement edge. The father saw the front wheel of Robert's bicycle in the south highway lane, west of the driveway. He looked for but saw no skid marks on the pavement. He heard defendant say that he 'never did see the boy.' The bicycle was a '28 inch' one. Robert could ride it without blocks on the pedals; the father had 'had the seat lowered * * * as far as it could go'; it was Robert's second bicycle and he had had it for more than two months; his other one was 'much smaller, a 24 inch.' Robert helped around the 6-acre home place--washed dishes, worked in the garden, drove the tractor in 'getting the hay in,' and helped in the garage. Robert had been in good health and was a good student at school.
Charles Witte, Jr., testified that around 6 p. m. Robert was in the store and bought some notebook paper. He left the store on his bicycle going west Witte's driveway was 'right past (east of) that sign about 75 to 90 feet.'
Sidney Ayres and Charles Koch were loading rock on the north side of the highway opposite the tourist court. The evening was clear and Prior to the collision, Ayres and Koch did not see or hear defendant's car. Neither saw Robert but Ayres 'heard the boy whistling' and Koch 'heard a child, or boy whistling and heard the rattle of a bicycle, noise a bicycle makes.' The noise came from 'back' (south) of him.
Both Ayres and Koch 'heard the crash.' Ayres looked up and saw the car 'about even with the (tourist court) driveway.' According to Koch, the car was a few feet east of the driveway. Ayres 'saw sparks flying from under the automobile' and 'that lasted until the car stopped.' Ayres and Koch ran across the highway. The boy was lying in the tourist court driveway about 2 feet from the pavement. The car was stopped about 60 or 70 feet east of the driveway. Its lights were on. The bicycle's handlebars and front wheel were lying on the highway shoulder, close to the pavement 'a little less than half way between the driveway and this spillway' on the photographs (that distance is not in the record) according to Ayres, and 35 or 40 feet west of the driveway according to Koch. The car's front wheels were off the pavement; the right front fender was bent and the right headlight was broken; 'half of the bicycle, the back part, the hind wheels,' was hung under the car.
Robert's mother testified that, when she arrived at the scene, she talked to defendant who said, 'I will swear that I never saw that boy.'
Deputy Constable Joseph H. Baker, Jr., who arrived at the scene after the collision, said that the car was east of the tourist court driveway with parts of the bicycle caught in the car's undercarriage; the car was on the highway shoulder 'between the driveway and the car.' Baker heard defendant say he 'didn't see the boy and didn't know where he came from or nothing; he was so worked up about it.'
Roy Dietsch, a bicycle expert, testified that the bicycle weighed about 55-60 pounds. Over objection, Dietsch testified that, in his opinion, Robert's speed, on the pavement between the tourist court driveway and a point on the pavement north of where the bicycle's handlebars and front wheel were found (35-40 feet), would not have exceeded 15 m.p.h. 'and it is possible he couldn't have gone that fast in that short a distance.'
Plaintiffs closed their case by introducing these portions of defendant's deposition: Defendant first saw Robert when the boy was 'about ten feet in front of my car'; the boy was then 'crossways on the slab, crossing * * * about ten feet in front of me on my right-hand side * * * out in the highway about four feet * * * somewhere in the vicinity of the right-hand lane of traffic'; defendant was going 50 m. p. h.; he did not apply his brakes 'at any time before the accident'; he 'was unable to sound a horn at any time before the accident'; it was after dark and his car lights were on; defendant told the police, 'I didn't see the boy until he was right in front of me'; under the then conditions, defendant could have made an emergency stop in 110 feet, including reaction time and 'the resistance of the brake'; there was no car on the highway to the left of his car at the time; he applied the brakes, but not sufficiently to cause the car to skid.
Defendant's testimony at the trial was substantially the same as that just summarized, with one exception. He was not so sure that the bicycle was 'crosswise' on the pavement. According to his 'closest recollection, it was coming across, to my left.' When he first saw the boy 10 feet in front of him and 'right in front of the driveway,' he was 'unable to get his brakes on.' He swerved to his left and stopped 'as fast as he could'--in about 70 feet after the collision, he estimated. There was nothing to obstruct his 'vision there or on the road, on the shoulder of the road'; the highway was 'fairly level, with a gradual upgrade and there were shoulders on both sides of the pavement.' Objection to this question was sustained: 'Now, was there any reason why you didn't see the boy before he was right in front of your car?' There was a little 'bump' in the car's right front fender, its right headlight was broken, and its hood was 'buckled.'
Upon cross-examination, defendant admitted that, in his deposition, he had stated that he did not know 'which way he (Robert) was heading, toward his (defendant's) right or left,' when he first saw the boy. At trial time, he 'didn't know where the boy came from.' He was 'not positive that the boy was crossways of the road,' but was sure that Robert was 'in motion, about four feet out on the slab and in front of the right front of the car.' He knew the boy was moving but didn't know which way. Defendant did not know how far ahead his headlights would 'show, light up,' but thought it was 'pretty far, they were good, normal operating headlights; they were on bright, not dim.' There was nothing 'to obstruct his vision there or on the road, on the...
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