Winter v. Van Blarcom

• Citation: 167 S.W. 498,258 Mo. 418
• Decision Date: 26 May 1914
• Docket Number: No. 15895.,15895.
• Parties: WINTER v. VAN BLARCOM et al.
• Court: United States State Supreme Court of Missouri

167 S.W. 498

258 Mo. 418

WINTER v. VAN BLARCOM et al.

No. 15895.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. EVIDENCE (§ 200) — ADMISSIONS — ORAL STATEMENTS.

Testimony of the mother of a boy struck by an automobile that the driver "sympathized with me, told me he would do all in his power to help me, and be responsible for all debts in the case, and that I should not worry," was properly stricken out, as the declaration was not an admission of liability, but merely an offer to pay the costs of treatment.

2. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — AUTOMOBILE ACCIDENT — ACTIONS — QUESTIONS FOR JURY.

In an action against the owner and driver of an automobile for negligently running down a boy, a demurrer was properly sustained to plaintiff's evidence, where it failed to show excessive speed or other alleged negligence of defendants, and it appeared that plaintiff's act in suddenly running from behind a street car to the curb in front of the automobile, too close to avoid him, was the proximate cause.

3. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — AUTOMOBILE ACCIDENT — ACTIONS — BURDEN OF PROOF.

The burden was upon a boy suing for being run down by an automobile to show negligence upon the part of defendants, and the mere fact that plaintiff was struck by the automobile was not a sufficient showing of negligence.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Paul Winter, by his next friend, Clara R. Winter, against J. C. Van Blarcom and another. Judgment for defendants, and plaintiff appealed to the St. Louis Court of Appeals, which certifies the case to the Supreme Court on account of a constitutional question involved. Affirmed.

Plaintiff, a minor, sues by next friend to recover $4,500 as damages for personal injuries received by being struck by defendants' automobile, while near the intersection of Maryland and Newstead avenues in the city of St. Louis. Upon the trial of the cause in the circuit court of the city of St. Louis, the court sustained a demurrer to plaintiff's evidence. Plaintiff thereupon took a nonsuit, with leave to move to set the same aside. Later plaintiff's motion to set aside the nonsuit was overruled, and plaintiff perfected an appeal to the St. Louis Court of Appeals. While the appeal was pending in the St. Louis Court of Appeals, defendant J. C. Van Blarcom died. The death of said defendant was suggested to said Court of Appeals, and a request made that a citation be issued to Mary G. Van Blarcom, the duly appointed executrix of the estate of said deceased, to show cause why the cause should not be revived against her as such executrix. The citation was duly issued and served, and as a return thereto said executrix filed demurrer to said order to show cause, alleging as grounds therefor that (1) by the death of said J. C. Van Blarcom "said cause, if any, abated and did not survive"; (2) that section 5438, R. S. 1909 (Laws 1907, p. 252), "which provides for survival of certain causes of action, in so far as it applies to this case, is retroactive and in violation of article 2, § 15, of the Constitution of Missouri."

On account of the constitutional question, thus raised, the St. Louis Court of Appeals properly certified the case to this court for determination.

The injury occurred April 22, 1907; section 5438, R. S. Missouri 1909, became a law June 14, 1907. Said defendant's death occurred after said law had gone into effect, and after the case had been appealed to the St. Louis Court of Appeals.

The negligence of defendants is alleged in the petition, as follows:

"That on said day the defendants were running and operating an automobile westwardly on Maryland avenue at or near the intersection of Newstead avenue with Maryland avenue; that defendant Frederick Van Blarcom was operating said automobile as the chauffeur of defendant J. C. Van Blarcom; that on said day the plaintiff was passing northward over Maryland avenue at or near the west crossing of Maryland and Newstead avenues when defendants' said chauffeur in charge of said automobile, carelessly and without using any care to watch for persons and children on said street, and negligently and without using any care to control said automobile and prevent it from running against and upon the plaintiff, and negligently, without giving any signal to the plaintiff of the approach of said automobile, and without using any care to slow down or stop said automobile and prevent injuring the plaintiff, and while running said automobile at a high and negligent speed, caused and suffered said automobile to strike, run against, and permanently injure the plaintiff."

Plaintiff testified: That he was ten years old, and was on his way to school, going north across Maryland avenue on the west side of Newstead avenue when injured. That four other children were with him on their way to school. When they reached Maryland avenue, three of his companions remained on the south side of said street, and plaintiff and Eddie Bohn, one of his companions, started north across the street. That there was a double street car track on Maryland avenue, and at the time plaintiff and Eddie Bohn were crossing the street a west-bound street car stopped at the west crossing of said streets. That plaintiff was just behind the car when it stopped, and touched the pin on the back of the car and then ran toward the north sidewalk. Eddie Bohn, his companion, was on the car step, and while plaintiff was running to the north side of the street, he did not look to the east for automobiles or vehicles, but was looking west, "watching Eddie Bohn hop off the car." At this time plaintiff was struck by the automobile. The automobile was going west. After he was struck, he pulled himself over to the sidewalk. That he was on the crossing when hit by the automobile, but when he came to his senses "he was 15 feet from the crossing, and the automobile was standing out in the street in front of him." One of defendants placed him in the automobile and took him to the Baptist Sanitarium, where he remained three weeks, suffering from the fractures of three ribs and a punctured lung. On cross-examination he said that he had been going to school three years; "was in the fourth reader," and that during his last two school years he had passed over this crossing on an average of four times a day; that his mother had cautioned him to look out for automobiles and carriages; that the accident happened about 12:30 p. m.,...