Wulsch v. Inland Valley Coal Co.

• Decision Date: 03 October 1933
• Docket Number: No. 22427.,22427.
• Citation: 63 S.W.2d 423
• Parties: WULSCH v. INLAND VALLEY COAL CO.
• Court: Missouri Court of Appeals

63 S.W.2d 423

WULSCH v. INLAND VALLEY COAL CO.

No. 22427.

St. Louis Court of Appeals. Missouri.

October 3, 1933.

Rehearing Denied October 17, 1933.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be published in State Reports."

Suit by Woodrow Wulsch, an infant, by Charles S. Wulsch, his next friend, against the Inland Valley Coal Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries sustained by plaintiff on the 21st of November, 1930, when he was struck by an automobile truck belonging to defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $15,000. In passing upon defendant's motion for a new trial, the trial court entered an order that if plaintiff, within ten days thereafter, would remit $7,500 from the judgment the motion would be overruled, otherwise it would be sustained. Plaintiff filed such remittitur, a new judgment for $7,500 was entered, and the motion for a new trial was overruled. Defendant brings the case to this court by appeal.

Plaintiff's amended petition contained six separate assignments of negligence, but the case was submitted to the jury for plaintiff solely on the third assignment, which was based on the humanitarian doctrine.

Defendant's answer was a general denial coupled with a plea of contributory negligence in which it was charged that plaintiff failed to exercise ordinary care for his own safety in the operation of the bicycle on which he was riding.

The evidence disclosed that plaintiff, at the time of the accident, was 15 years of age. On the day mentioned, he was riding a bicycle eastwardly on the south side of Chouteau avenue, in the city of St. Louis, near Paul street. The two streets are open public streets and intersect each other. Chouteau avenue runs east and west, and Paul street runs north and south; Chouteau avenue being 56 feet wide, and Paul street 24 feet wide. Immediately prior to the accident, as plaintiff approached Paul street, on his bicycle, he was about 1½ feet from the south curb of Chouteau avenue. There is a slight down grade on Chouteau avenue from the west toward Paul street at that place.

Defendant's automobile coal truck was also being driven eastwardly on the south side of Chouteau avenue toward Paul street, having come from Twelfth street on Chouteau avenue; the driver thereof testifying that he intended to turn south into Paul street to avoid the "Stop" and "Go" signs further on at Chouteau avenue and Broadway. Prior to the time defendant's driver started to make the turn into Paul street, defendant's truck was being driven in such a manner that the south wheels thereof were about 12 to 15 feet north of the south curb of Chouteau avenue.

Plaintiff testified that when he had reached a point about 15 feet west of the intersection of Chouteau avenue with Paul street, he heard defendant's truck coming behind him, and that it was then about 30 feet back of him. Plaintiff proceeded on eastwardly and as he drew nearer to Paul street defendant's truck passed him, and in making the turn into Paul street the truck struck him and caught him between the right rear wheel thereof and the curbing right at the southwest corner of the intersection of the two streets, severely crushing his right leg and also injuring his left leg.

Jack Brown, a chauffeur for the Columbia Terminals Company, testified that he was driving an automobile truck westwardly on Chouteau avenue about one-half a block east of Paul street, and saw the accident. He said that when defendant's truck was even with the boy the truck made a short turn around into Paul street without giving any signal or sounding any horn and knocked the boy off the bicycle; that the wheel caught plaintiff's leg; that the wheel of the truck hit the curb and chipped a piece out of it; that he and another chauffeur picked the boy up, laid him on the sidewalk and called for an ambulance, and also called the police department.

Joe March, another chauffeur, testified that he was driving an automobile coal truck west on Chouteau avenue, and when he was about 75 feet east of Paul street he saw the boy on the bicycle; that when he first saw him the boy was about two lengths ahead of the truck and about a foot and a half north of the south curb of Chouteau avenue; that both the boy and the truck were coming eastwardly; that he saw the driver of the truck make a sudden turn as he got near Paul street.

The driver of defendant's truck testified that he saw plaintiff riding on his bicycle ahead of him in the street; that he passed plaintiff going eastwardly when plaintiff was about 40 feet west of Paul street; that Ralph Hunter, his cousin, was seated on the right-hand side of the driver's seat of the truck, and that he, the driver, was seated on the left-hand side driving; that his cousin gave a signal for the turn into Paul street by extending his right hand to the south, while he, the driver, extended his left hand to the north, indicating that a turn was to be made at that time. He said that after he passed plaintiff he "didn't pay any attention to him any more until I turned the corner at Paul and Chouteau and my cousin said, `stop, you ran over that boy.'"

Ralph Hunter did not testify, it appearing from the evidence that he had died some time after the accident.

Plaintiff's evidence was to the effect that the truck was traveling about 25 miles an hour; that it turned into Paul street without any slackening of speed, crossing the path in which plaintiff was riding on his bicycle as he approached the intersection of the two streets.

Defendant's evidence showed that when the truck had reached a point about 6 feet from the intersection of the two streets, its speed was slackened to 3 or 4 miles per hour; that its speed had never exceeded 12 to 14 miles per hour; that there was a governor attached to the mechanism of the truck which made it impossible for it to be driven at a speed greater than 12 to 14 miles per hour. Defendant's driver testified that he could have stopped the truck within 4 or 5 feet at the time he passed plaintiff, and that at the time he made the turn at the corner of the intersection the truck could have been stopped in 1 foot at the rate of speed it was then going.

Plaintiff was taken to the City Hospital, where he remained for "two going on three months" under treatment for his injuries.

Defendant's counsel earnestly urge a reversal of the judgment on the ground that the court erred in refusing to discharge the jury panel on defendant's motion because of the following statements made by plaintiff's counsel to the jury while they were being examined on their voir dire: "This is a rather peculiar case in this respect; this boy is a feeble-minded boy, that is, he is not entirely feeble-minded but he is not entirely intelligent. He is now seventeen years of age and has the intelligence of about an eight year old boy. His mother is afflicted with some ailment, some mental disability and she was so afflicted when she committed suicide some time ago. The boy has always been in that situation and from the time he was six years of age he has been confined in one reformatory or another."

Counsel for defendant vigorously objected to the above statements and moved the court to discharge the jury on the ground that such statements were highly prejudicial to the rights of defendant and were intended to create sympathy for the plaintiff, or prejudice against defendant. After considerable discussion between counsel and the court out of the hearing and presence of the jury, the court orally...