Wilson v. Washington Flour Mill Co.

• Decision Date: 07 November 1922
• Docket Number: No. 17041.,17041.
• Citation: 245 S.W. 205
• Parties: WILSON v. WASHINGTON FLOUR MILL CO.
• Court: Missouri Court of Appeals

245 S.W. 205

WILSON v. WASHINGTON FLOUR MILL CO.

No. 17041.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Rehearing Denied November 21, 1922.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Minnie Wilson against the Washington Flour Mill Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John W. Booth, of Union, James Booth, of Pacific, and Jesse H. Schaper, of Washington, Mo., for appellant.

Irwin & Haley, of Jefferson City, and F. H. Hasmann, of Union, for respondent.

NIPPER, C.

This action was brought by plaintiff against defendant to recover damages by reason of plaintiff's 14 year old son, Ralph Wilson, being killed in an accident, which occurred near the intersection of Jefferson and Second streets, in the city of Washington, Franklin county, Mo., on April 16, 1919, as the result of a collision between a bicycle, which plaintiff's son was riding, and a motor truck belonging to defendant which was being driven at the time by Paul Backer, an employé of defendant. The negligence counted upon in the petition is: (a) Negligent rate of speed; (b) failure to sound any warning of the approach of said truck; and (c) the humanitarian doctrine. The answer was a general denial and a plea of contributory negligence. Plaintiff recovered judgment for $2,500, and defendant appeals.

On the morning that plaintiff's son received the injuries from which he died, he was sent to the butcher shop by his mother, and, upon his return, as he was riding the bicycle eastward on Second street, he was either struck by defendant's truck, or ran into the side of it, and received injuries from which he died four days later.

The evidence offered on the part, of plaintiff shows that the collision took place while deceased was riding eastward on Second street, while that offered on the part of defendant shows that deceased, upon reaching Jefferson street, and when he had proceeded partly across same, made a sharp turn to the right, and ran into defendant's truck, when the truck was about 3 feet south of a point where Jefferson intersects with Second street. Second street extends from east to west, and Jefferson street, from north to south. The streets are nearly level at the point where the accident occurred. There is a vacant lot, 31 feet wide, on the southwest corner of Jefferson and Second streets. There is evidence that the boy could have been seen more than 60 feet before reaching the intersection, from a point 75 feet south on Jefferson.

Miss Myrtle Pehle testified that at the time of the accident she was walking north on the west side of Jefferson street, south of where the accident occurred. Her attention was attracted to a truck traveling northward, and she saw young Backer was driving the truck. She did not estimate the rate of speed at which the truck was going, except to say that it was going "fast," and "a great deal faster" than the ordinary rate of traveling. Within a very few moments after the truck passed she heard the crash, and, looking, saw Ralph Wilson had fallen. She says that deceased was traveling east on Second street, and was struck while in Second street. Each of these streets was something like 34 feet wide. There was another boy, Edgar Lefman, who was riding in the seat with Backer at the time of the accident. Both of the boys got out of the truck after it was stopped, came back, and took the injured boy to a doctor's office near by.

Plaintiff then introduced evidence, over the objections of defendant, that a car, operated on an incline slightly down grade, running at a rate of 10 miles an hour, could be stopped within a distance of from 8 to 10 feet. This same witness testified that a heavy car could be stopped within a shorter distance than a light one. The evidence on the pan; of plaintiff also showed that no warning sound wad given, nor was any...