Wright v. Osborn, 40079.

Citation201 S.W.2d 935
Decision Date21 April 1947
Docket NumberNo. 40079.,40079.
PartiesR.O. WRIGHT and EVILINA WRIGHT v. DONALD RODERICK OSBORN and NORWICH PHARMACAL COMPANY, a Corporation, Appellants.
CourtUnited States State Supreme Court of Missouri
201 S.W.2d 935
R.O. WRIGHT and EVILINA WRIGHT
v.
DONALD RODERICK OSBORN and NORWICH PHARMACAL COMPANY, a Corporation, Appellants.
No. 40079.
Supreme Court of Missouri.
Division One, April 21, 1947.
Rehearing Denied, May 12, 1947.

[201 S.W.2d 936]

Appeal from Jackson Circuit Court. — Hon. Thomas J. Scchorn, 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 plaintiff's 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.

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...

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