Wilson v. Chattin

• Decision Date: 12 June 1934
• Docket Number: 31833
• Citation: 72 S.W.2d 1001,335 Mo. 375
• Parties: Junior Wilson, by Next Friend, Foster Wilson, Appellant, v. Thompson Chattin
• Court: Missouri Supreme Court

72 S.W.2d 1001

335 Mo. 375

Junior Wilson, by Next Friend, Foster Wilson, Appellant, v. Thompson Chattin

No. 31833

Supreme Court of Missouri

June 12, 1934

Appeal from Gentry Circuit Court; Hon. D.D. Reeves, Judge.

Reversed and remanded.

Mytton Parkinson & Norris for appellant.

(1) There is no evidence or even suggestion in the record that the accident complained of occurred as a result of an unknown or unassignable cause, and the giving therefore of the defendant's Instruction D constitutes reversible error. Hogan v. K. C. Pub. Serv. Co., 19 S.W.2d 707; Crowell v. St. Louis Screw Co., 293 S.W. 921; Dietzman v. St. Louis Screw Co., 254 S.W. 59; Sneed v. St. Louis Pub. Serv. Co., 53 S.W.2d 1062. (2) The giving of Instruction E on behalf of the defendant constituted reversible error for the reason that said instruction left to the jury to determine the meaning of "due care;" it gave to the jury a roving commission and permitted the jury to speculate as to the degree of care required by the motor vehicle law; it was confusing and misleading and in conflict with plaintiff's Instruction 1, and it directed a verdict for defendant regardless of the care or speed of defendant's motor vehicle at the time of the accident. 9 C. J. 1288; Cornovski v. Transfer Co., 207 Mo. 279; Dean v. Railroad, 199 Mo 408; Sullivan v. Union Elec. L. & P. Co., 56 S.W.2d 97; Buell v. St. Louis Transfer Co., 45 Mo. 562.

F P. Stapleton for respondent.

(1) The accident complained of in this case occurred as a result of a known cause without human agency or fault and therefore the giving of defendant's Instruction D was not error. Hogan v. K. C. Pub. Serv. Co., 19 S.W.2d 707; Baker v. Railroad Co., 39 S.W.2d 535; Wright v. Quattrochi, 49 S.W.2d 3. Since the verdict in this case was for the defendant the jury found that the defendant was not negligent. Under the law of this State a child seven years of age is not chargeable with contributory negligence and for that reason the court refused defendant's Instruction A. Goodwine v. Eugas, 236 S.W. 50; Hults v. Miller, 299 S.W. 85. (2) It was not error to give defendant's Instruction E. Under the whole charge to the jury the jury was carefully instructed as to the measure of care that rested upon the defendant. The reference to due care in defendant's Instruction E could only refer to the measure of care set out in the plaintiff's instructions. Sullivan v. Union Elec. L. & P. Co., 56 S.W.2d 97; Bales v. K. C. Pub. Serv. Co., 40 S.W.2d 665; Garard v. Coal & Coke Co., 307 Mo. 242.

OPINION

Atwood, P. J.

This is an action for damages laid at $ 10,000 on account of personal injuries alleged to have been sustained by Foster Wilson, a minor child then seven years of age, in a collision with an automobile driven by Thomas Chattin. From a judgment for defendant plaintiff has appealed. The only errors assigned are to the giving of Instructions D and E requested by defendant.

The assignments of negligence submitted by plaintiff were excessive rate of speed, failure to keep a lookout, and failure to check the speed of the automobile or turn the same aside to avoid striking plaintiff.

Instruction D was as follows: "The Court instructs the jury that if you find and believe from the evidence that the plaintiff's injuries, if any, were caused solely by an unavoidable accident then your verdict will be for the defendant. You are further instructed that an accident is such an unavoidable casualty as occurs without anybody being to blame for it, that is, without anybody being guilty of negligence in doing or permitting to be done, or in omitting to do the particular thing that cause such casualty."

Counsel for appellant say that the giving of the above accident instruction was reversible error because there was no "evidence tending to show or even suggest an unknown cause of the casualty," citing Hogan v. Kansas City Public Service Company, 19 S.W.2d 707, 322 Mo. 1103; and Sneed v. St. Louis Public Service Company (Mo. App.), 53 S.W.2d 1062, 1066.

In the Hogan case (l. c. 712, 713) we said that to bring a casualty within the legal meaning of the term accident, an "essential requirement is that the happening be one to which human fault does not contribute;" and "when, as here, the misadventure resulted from known actions of known persons and things, the giving of an accident instruction is error by the great weight of recent authority in this State." The rule there announced and reasoned at length has been approved in Baker v. Chicago, B. & Q. Railroad Co., 39 S.W.2d 535, 541, 327 Mo. 986; Wright v. Quattrochi, 49 S.W.2d 3, 6, 330 Mo. 173; Sneed v. St. Louis Public Service Co. (Mo. App.), 53 S.W.2d 1062, 1066; Mitchell v. Dyer (Mo.), 57 S.W.2d 1082, 1083; Kaley v. Huntley, 333 Mo. 1, 63 S.W.2d 21, 25; Brewer v. Silverstein (Mo.), 64 S.W.2d 289, 292, and other cases.

Counsel for respondent seeks to distinguish the instant case from the above cited cases by suggesting that as the jury in this case found that the casualty was not caused by the negligence of defendant, and as plaintiff, because of his tender years could not under the law have been guilty of contributory negligence,...