Wright v. Osborn

• Decision Date: 21 April 1947
• Docket Number: 40079
• Parties: .O. Wright and Evilina Wright v. Donald Roderick Osborn and Norwich Pharmacal Company, a Corporation, Appellants
• Court: Missouri Supreme Court

201 S.W.2d 935

356 Mo. 382

.O. Wright and Evilina Wright v. Donald Roderick Osborn and Norwich Pharmacal Company, a Corporation, Appellants

No. 40079

Supreme Court of Missouri

April 21, 1947

Rehearing Denied May 12, 1947.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Richard H. Beeson and David P. Dabbs for appellants.

(1) There was no evidence that defendant Osborn, operating the automobile, could have avoided striking deceased (1) by slackening the speed of his automobile, or (2) by turning the automobile aside, or (3) by warning deceased, after deceased was in a position of inescapable peril. Gosney v. May Lumber & Coal Co., 352 Mo. 693, 179 S.W.2d 51. (2) When plaintiffs voluntarily abandoned their charges of primary negligence, said charges and all evidence supporting them went out of the case, so far as plaintiffs are concerned, as effectively as if said evidence had never been offered. Weinel v. Hesse, 174 S.W.2d 903; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809. (3) Moreover, deceased was guilty of contributory negligence, as a matter of law, in running into the immediate path of the automobile, which negligence would bar recovery on primary negligence. Gosney v. May Lumber & Coal Co., 352 Mo. 693, 179 S.W.2d 51. (4) The court erred in giving plaintiffs' Instruction 1, because each of the three disjunctive grounds of negligence, that Mr. Osborn could have avoided striking deceased (1) by slackening the speed of the automobile, or (2) by turning aside, or (3) by a warning to deceased, after he was in a position of inescapable peril, was not supported by evidence. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Hutchison v. Thompson, 175 S.W.2d 903; Crawford v. Byers Transportation Co., 186 S.W.2d 756; Miller v. K.C. Public Service Co., 178 S.W.2d 824. (5) The court also erred in giving plaintiff's Instruction No. 1, because it directed a verdict for plaintiffs if an aggregate number of jurors sufficient to return a verdict believed some one of the three alternatives, even though not as many as nine jurors agreed on any one of said alternatives. State v. Pruitt, 202 Mo. 49, 100 S.W. 431. (6) The court erred in giving plaintiffs' Instruction 2, because it injected antecedent negligence into a case submitted solely under the humanitarian doctrine. Said antecedent negligence being driving the automobile at an excessive speed and failure to keep a lookout. Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6; Todd v. St. Louis-S.F. Ry. Co., 37 S.W.2d 557; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Robinson v. K.C. Public Service Co., 345 Mo. 764, 137 S.W.2d 548; Wholf v. Kansas City, C.C. & St. J. Ry. Co., 335 Mo. 520, 73 S.W.2d 195. (7) The verdict and judgment in the amount of $ 8,695 are excessive. Sec. 9616, R.S. 1939 (Prohibiting children under 14 years of age from engaging in gainful employment). Sec. 10587, R.S. 1939 (Compulsory school attendance by children under 16 years of age). Marx v. Parks, 39 S.W. 570; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401.

Hook & Thomas, Inghram D. Hook and Harry L. Thomas for respondents.

(1) A motion for directed verdict and motions upon similar grounds are properly denied when substantial evidence supports submission. (2) Where testimony is, beyond reasonable doubt, contrary to physical laws and facts of common knowledge, it cannot be accepted as substantial evidence. State ex rel. Kansas City So. Ry. Co. v. Shain, 105 S.W.2d 915, 340 Mo. 195; Morris v. E.I. Du Pont de Nemours & Co., 109 S.W.2d 1222, 341 Mo. 821; Murphy v. Fred Wolferman, Inc., 148 S.W.2d 481, 347 Mo. 634. (3) The court is not required to accord probative force to evidence of speed of automobile where this was contrary to physical facts. McGrew v. Thompson, 184 S.W.2d 994, 353 Mo. 864. (4) The elements hypothesized in Instruction No. 1, each being supported by substantial evidence, were properly submitted. (5) The assignment of contradictory instructions is not for review. Supreme Court Rule 3.21. (6) The giving of Instruction 2 was not erroneous because of injection of antecedent negligence. Any possible ambiguity was removed by defendants' given Instruction A. Keyes v. C., B. & Q.R. Co., 326 Mo. 236, 31 S.W.2d 192; Kamer v. M.-K.-T.R.R. Co., 326 Mo. 792, 32 S.W.2d 1075; Garnett v. S.S. Kresge Co., 85 S.W.2d 157, 340 Mo. 145. (7) All instructions, being read and considered together, give a complete exposition of the law. McDonald v. Kansas City Gas Co., 59 S.W.2d 37, 332 Mo. 356; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104; Owens v. K.C., St. J. & C.B. Ry. Co., 95 Mo. 169, 8 S.W. 350. (8) The judgment was not excessive and the assignment now made is not for review, not having been presented to the trial court in the motion for a new trial. Supreme Court Rule 3.23. (9) The court will consider the present value of the dollar. Talbert v. Chicago, R.I. & P. Ry. Co., 321 Mo. 1080, 15 S.W.2d 762. (10) As evidence of legislative opinion, the penalty for wrongful death has been increased. House Bill 389, 63rd General Assembly.

OPINION

Conkling, J.

Respondents, plaintiffs below, recovered judgment in the Circuit Court of Jackson County for $ 8,695.00 for the death of their minor son, Lawrence Wright, 8 years of age, which resulted instantly when he was struck by an automobile on June 11, 1945. The automobile being operated north on Highway 169 by appellant Osborn, then 72 years of age, for and upon the business of his employer, the appellant Norwich Pharmacal Company. Their motion for new trial being overruled appellants lodged their appeal here.

Respondents pleaded primary negligence in that the automobile was operated at an excessive rate of speed and also pleaded humanitarian negligence in that appellants, after peril arose, could have avoided striking and killing their son by slackening the speed, or turning aside or giving a warning. Defendants' answer pleaded contributory negligence of the boy in that he suddenly ran from an obscured position east on the concrete highway onto the highway in front of appellants' automobile. Upon the submission of the case primary negligence was abandoned and the submission instruction was upon the humanitarian allegation in the above alternatives.

The contention of appellants in this court that the facts of record, and proper inferences therefrom, did not make a case which could have been submitted to the jury requires a full statement of the facts. It is axiomatic that under these circumstances we state and consider the instant facts and the reasonable inferences therefrom in the light most favorable to the verdict below, and give respondents the benefit of every favorable inference which the evidence tends to support.

Osborn, on the day in question, was driving alone in his 1941 Ford sedan north on the east half of Highway 169 just north of Smithville, Missouri. The day was clear, the highway was straight, level and dry. The concrete pavement was 20 feet wide and constructed on a fill with shoulders on each side of the highway some 6 to 8 inches higher than the concrete. The shoulders were level out from each side of the concrete for about 12 feet, then dipped for 4 or 5 feet before starting down the steeply inclined bank of the fill. There was no obstruction to Osborn's view ahead as he approached from the south. The boy was 4' 3 i/2" tall. The vegetation on the shoulder of the highway was only ankle deep to the boy. Osborn testified he was driving only 40 miles per hour. In view of other facts and circumstances hereinafter set out, the jury had a right to conclude that Osborn was mistaken in that estimate of his speed. There were no other cars on the highway moving in either direction, and appellant Osborn was the only surviving eyewitness. After the accident a number of persons quickly gathered there. Osborn was a salesman, travelled by automobile, had been over that highway many times and was fully familiar with it. The accident occurred at high noon and nothing appears of record which would have distracted Osborn's attention from his duty to keep a lookout for persons on or about to go onto the highway.

From the evidence the jury could reasonably find that Lawrence had come up a path on the east side of the fill or embankment had crossed the twelve foot shoulder in plain view of Osborn, and had come onto the pavement with an apparent intention of continuing on across the concrete paving. Osborn testified Lawrence ran straight west across the concrete highway with his head down and did not look either north or south, and was struck while so running west when at a point about 2 feet west of the center line of the highway. He was struck by the front of the hood or radiator just to the left of the center of the front of the automobile. At some point, which the record does not clearly disclose, Osborn turned the automobile to the left (northwest). It ran northwest onto and across the left and west side of the highway and out onto the left and west shoulder thereof, where it came to a stop, headed northwest, against and over a highway marker sign which was 8 feet west of the concrete highway, bending the marker down. The body of the boy then lay at the west edge of the concrete pavement and was 28 feet further north than the front of the automobile. He was dead when Osborn reached him. The highway marker was 100 feet north of where Lawrence was struck. Osborn testified that he put his foot on the brake and turned the automobile to the left but that he did not sound the horn. After the accident there were skid marks 81 feet in length leading up to the back of Osborn's car. These skid marks started very close...