123 S.W.2d 158 | Mo. | 1938
Lead Opinion
This action was brought by plaintiffs, Clarence and Vera Gardner, to recover damages for the death of their minor son, Eugene, aged eleven years, who it is claimed was struck and killed by defendant's automobile, driven by himself. There was a verdict and judgment for defendant, from which plaintiffs appealed. The questions presented by the appeal relate to the giving of certain instructions on behalf of defendant and the refusal of one requested by plaintiffs.
The petition alleges two specifications of negligence, viz.: Negligence under the humanitarian doctrine, in that defendant saw or by the exercise of the highest degree of care could and would have seen the deceased in a position of imminent peril in time thereafter to have avoided striking him; and that defendant negligently drove his car at a speed of more than twenty-five miles an hour in violation of an ordinance of Springfield, the city in which the accident occurred. The answer is a general denial coupled with a plea of contributory negligence. By plaintiffs' instructions both of their pleaded specifications of negligence were submitted to the jury.
Plaintiffs' evidence tended to show the following:
The Gardners lived at No. 1412 South Campbell Avenue, a north and south street in Springfield. Several blocks north of their residence said avenue intersects Delmar Street, an east and west street State Street, an east and west street, is north of Delmar. The accident happened on Campbell Avenue south of Delmar. Thelocus in quo is in the residential section of the city. At the time in question *905 Campbell Avenue was surfaced with "black top" or some such material and was much used by automobiles, also by pedestrians since, at the place in question, there were no sidewalks on either side and the ground was rough. A witness for plaintiffs testified "It (the pavement) is much used by both automobiles and pedestrians day and night. Most people walk on the pavement. Quite a number of people live south of Delmar on Campbell Avenue." There was other testimony to the same effect.
On the evening of October 10, 1934, about seven o'clock, Eugene and his older brother, Leonard, aged thirteen, left their parents' home with the knowledge and consent of the parents, to go to a picture show. Their natural course was to go north on Campbell Avenue past the Delmar Street intersection. They started together but their plan, known to the parents, was to separate at a point some distance south of Delmar, whence Leonard was to go east on his paper route and Eugene was to go on north on Campbell Avenue to its intersection with State Street, where the boys were to meet and from there go on to the theater. They separated as per agreement. When Leonard reached the appointed meeting place and Eugene failed to appear he went on to the show alone. After his return home unavailing search was made for Eugene that night. His body was found next morning in the ditch along the east side of the Campbell Avenue pavement, a short distance south of the Delmar Street intersection. One witness who saw the body in the ditch said it was about ten feet south of Delmar. Wounds on the body indicated he had been struck and killed by an automobile. No witness for plaintiffs saw the accident but there was circumstantial evidence tending to show that it was defendant's car which struck Eugene, that defendant was driving it and that he had stopped hurriedly — as shown by skid marks on the pavement — and had got out of his car and looked about as though searching for something. A police officer, Brown, testified also that defendant came to the police station that night and reported that "he thought he had had an accident on South Campbell and wanted me to go back there with him." They went and defendant pointed out the place where he had "felt the impact or jar, or whatever it was," which place was 177 feet south of Delmar. These distances are referred to because there was evidence that there was a street light at the Campbell-Delmar intersection. Mrs. Gardner testified she had instructed Eugene to walk on the left side of the pavement. Mr. Gardner testified he had given his son no instructions on that subject.
Plaintiffs introduced Section 53 of an ordinance of Springfield, governing the speed of automobiles, which so far as pertinent is as follows: *906
"Section 53. Restrictions as to Speed.
"(a) Basic Rule.
"No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazards at intersections and any other conditions then existing.
"Nor shall any person drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance upon or entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care, provided that this provision shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as to the proximate cause of an accident.
"Any person violating the above basic rules shall be guilty of a misdemeanor.
"(b) Application of Indicated Speeds.
"Any person who drives a vehicle upon a street or highway at a speed in excess of that indicated as follows for the particular district or location and who, while so driving, violates the basic rule set forth in Subdivision (a) shall, upon a first conviction be punished by imprisonment in the county or municipal jail for a period of not less than five days nor more than sixty days, or by a fine of not less than $1.00 nor more than $300.00 and costs, or by both such fine and imprisonment."
The "indicated speed" for "any residential district" is twenty-five miles per hour.
Plaintiffs pleaded that defendant negligently drove in excess of twenty-five miles per hour in violation of the ordinance, the place in question being in the residential section of the city, but without otherwise stating facts to bring that alleged negligence within the "basic rule" prescribed by subdivision (a) of the ordinance and their instruction on that specification told the jury that if defendant drove his car in excess of twenty-five miles an hour and the place was in a residential section such operation of the car was negligence.
Defendant testified on direct examination:
"I was driving north on Campbell Avenue on the night of October 10, 1934. Somewhere south of Delmar Street I felt a jolt or shock to my car. A car was approaching from the north. Its headlights blinded me. When I felt a shock, I applied my brakes and then released them and came to a gradual stop. I then backed up south of the intersection of Delmar. I got out of my car and looked up *907 and down the ditch. I started on to town, but turned around, drove back, parked on the west side of Campbell Avenue, headed south, and looked farther south than I had before. I did not have a flashlight. I then went to the police station and got Officer Brown and we looked along Campbell Avenue south of Delmar with a flashlight."
He further testified in effect that he did not see the object he struck or that struck his car and did not know whether "it came in from the side or front, or how." On cross-examination he said that he estimated his speed, prior to and at the time he felt the "jolt or shock," at about thirty-five miles per hour; that he had good brakes and good lights. He could not give the time or distance in which his car, going at thirty-five miles an hour, could have been stopped. There was no evidence on that subject.
Plaintiffs' Instruction No. 1 submitted the issue of negligence under the humanitarian doctrine; their Instruction No. 2 submitted the issue of primary negligence, viz., violation of the speed ordinance and death of deceased as a direct result thereof. Instruction No. 1 contained no reference to defendant's speed or to the ordinance. Plaintiffs' Instruction No. 3 was on the measure of damages, and No. 5 defined "highest degree of care."
"Negligence is not in law presumed, but must be established by proof as explained in other instructions.
"Neither are you permitted to base a verdict entirely and exclusively on mere surmise, guesswork and speculation; and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant Turk is liable without resorting to surmise, guesswork and speculation outside of and beyond the scope of the evidence, and the reasonable inferences deductible therefrom, then it is your duty to and you must return a verdict for defendant Turk."
Appellants say that said instruction was erroneous because: 1st, it was a lecture to the jury on its duty to the defendant and failed "to cover the duty of the jury on the whole case;" 2nd, the closing words "you must return a verdict for the defendant" are objectionable; 3rd, there was no ground or need for the jury to resort to surmise or speculation in order to find negligence on the part of defendant.
On the proposition that said instruction is a lecturing instruction *908
appellants cite Unterlachner v. Wells (Mo.), 278 S.W. 79. That decision does not sustain said contention. The instruction there criticized on that ground is so unlike the one before us as to make that decision inapplicable. The first paragraph of Instruction A was in the nature of a cautionary instruction. The giving or refusal of cautionary instructions is usually largely within the discretion of the trial court. It has been said that they should be used with caution. [Wolfson v. Cohen (Mo.), 55 S.W.2d 677, 681.] The latter case also quotes and discusses an instruction there claimed to be a "lecturing instruction" and distinguishes Unterlachner v. Wells, supra. In the instant case the fact of itself that decedent lost his life could not have thrown any light on the question of defendant's alleged negligence. [See Wolfson case, supra; Sharp v. City of Carthage,
That the closing words of the instruction did not render it erroneous and the reason for so holding, see King v. Rieth,
Appellants' third criticism of Instruction A we think is sufficiently answered, adversely to them, in Griffith v. Continental Casualty Co.,
II. Appellants say the court erred in giving defendant's Instruction C which told the jury that no allowance of damages could be made for "bereavement, grief or any mental anguish or suffering on the part of the boy or the relatives of the deceased" and that the recovery, if any, should be limited to the actual pecuniary loss sustained by the parents "as set forth in these instructions." Plaintiffs' instructions limited recovery to their pecuniary loss and set forth the elements to be considered in determining same. In their brief they say that the law in cases like this does not authorize recovery for bereavement, grief, etc., and they were not asking therefor, hence defendant's instruction was unnecessary and should not have been given. They cite Koebel v. Tieman Coal Material Co.,
In the instant case, the jury found for defendant, which means they *910
found defendant was not liable at all. They had no occasion to consider the measure or amount of damages to be awarded. The error, if any, in giving Instruction C was harmless under the circumstances. See Bennette v. Hader,
Appellants' contention as to this instruction is that it in effect tells the jury that plaintiffs must prove defendant's negligence beyond a reasonable doubt and thus puts upon them a greater burden of proof than the law requires. The point is not further explained or elaborated, but from the cases cited we think it must have reference to the concluding portion of the instruction, that if the evidence as to defendant's negligence is evenly balanced or preponderates in his favor the verdict must be for him. Appellants cite Aly v. Term. Railroad Assn.,
Appellants further contend that said Instruction D places upon *911
plaintiffs the entire burden of proof without stating that the burden of proof on the issue of contributory negligence rested on defendant. This contention likewise must be denied. The instruction clearly deals only with the question of defendant's
negligence and is specifically limited to that issue. It does not refer to contributory negligence nor purport to place upon plaintiffs the burden of proof as to all issues in the case. Of course if plaintiffs failed to establish by a preponderance of the evidence that defendant had been negligent their case failed because that burden rested upon them and, as we have said, absent negligence on the part of defendant there could be no recovery. But that is not saying that the burden of disproving contributory negligence rested on plaintiffs. A similar instruction was approved in Linders v. People's Motorbus Co.,
IV. It is claimed that the court erred in giving defendant's Instruction E, which reads:
The criticism of this instruction is that it says defendant cannot be held negligent on account of excessive speed before he saw or should have seen deceased in peril; that defendant testified he had not slackened his speed of about thirty-five miles an hour until he felt the shock to his car and the instruction therefore was not in accord with the evidence and was misleading.
Said instruction specifically referred to and dealt only with negligence under the humanitarian doctrine, as submitted by plaintiffs' Instruction No. 1. Plaintiffs by their instructions submitted both that and primary negligence, viz., excessive speed. Defendant was *912
entitled to have the law as to both issues defined. As to negligence under the humanitarian rule defendant's antecedent negligence, if any, was not to be considered, as we have pointed out, and under the evidence and in the circumstances of this case the court did not err in so informing the jury. We think this conclusion is sustained by the reasoning and the principle stated in Pence v. Kansas City Laundry Service Co.,
V. Defendant's Instruction F is complained of. It is rather long and we deem it unnecessary to take space to quote it. It is an instruction on contributory negligence applicable and by its terms specifically limited to the issue of primary negligence as submitted by plaintiffs' Instruction No. 2. Appellants make two complaints of this instruction: a, that it placed too great a burden of care on them in that it required that both parents should have exercised ordinary care; and b, that there was no evidence of contributory negligence.
As to a, the instruction submitted contributory negligence on the part of the deceased, hypothesizing the facts that would constitute it (of which part of the instruction there is no complaint), and further hypothesized the facts which would constitute contributory negligence on the part of the "parents" (using the term in the plural), and concluded thus: "and that they thereby failed to use ordinary care for the safety of their son, if you so find, and that the above failures on the part of said parents and the aforesaid negligence, if any, on the part of the decedent, Eugene Gardner, directly contributed to and directly caused his death, then you cannot find for plaintiffs under Instruction No. 2, referring to speed, and the ordinance."
Appellants cite on this point Howard v. Scarritt Estate Co.,
"If both parents were negligent in performing the duty of guarding the child, then no recovery should be had; but one parent at a time ought to be all the guard a four year old child needs in order to ride safely in a passenger elevator."
It is apparent that said case does not sustain appellants' contention. In the instant case Instruction F required a finding that both parents were negligent.
Winters v. K.C. Cable Co., supra, is clearly distinguishable. The facts and issues there presented are too dissimilar from the case before us to make that case authority for appellants' contention.
As to b, we do not agree with appellants that there was no evidence to justify submission of contributory negligence on the part of the parents. Eugene was only eleven years old. The parents knew the traffic conditions and surroundings on Campbell Avenue, its extensive use by automobiles by night as well as by day, knew that in Eugene's journey to the theater he would travel over that street, part of the way alone, and would likely walk on the pavement, as most people did, since there were no sidewalks and the ground on either side of the pavement was rough. It was nighttime. Knowing these things they permitted him to go. He was struck while so traveling along on that street, as his parents knew in advance he intended to do.
In Payne v. Chicago Alton Railroad Co.,
That was an action brought by the child for his own injury. We refer to it as showing that the law does not regard an eleven year old child as possessed of the judgment and discretion and ability to look out for his own safety that an adult person is presumed to have. *914
The same thought is expressed in Roland v. Anderson (Mo. App.), 282 S.W. 752, wherein the court says that a boy twelve years of age lacks the elements necessary to exercise the discretion, thoughtfulness and judgment presumed to be attributed to an ordinarily prudent adult person, and quotes from Mann v. M.K.
T. Ry. Co.,
If, then, a child is not capable of anticipating, appreciating and guarding against danger as would be a person of more mature years, judgment and experience, it would seem by parity of reasoning that those having custody of and authority over such child and whose duty it is to care for and safeguard him should, so far as reasonably possible, prevent him from going into a danger known to them but which, because of his immaturity, he may not fully know and appreciate. In this case the evidence does not disclose that Eugene was other than a normal boy of eleven years, with the judgment and discretion to be expected in a boy of that age.
VI. Appellants complain of the refusal of their Instruction No. 4. The first part of that instruction stated merely an abstract proposition of law as to the duty of persons operating motor vehicles. The trial court will not be convicted of error for refusing an instruction which states merely an abstract legal proposition. [State ex rel. State Highway Commission v. Hartman,
VII. Lastly, prejudicial error is charged in that defendant, in the courtroom, during an intermission of court, conversed with two of the jurors. Affidavits of plaintiff Clarence Gardner and one of plaintiffs' attorneys were filed in support of this complaint, which first appeared in the motion for new trial. Gardner's affidavit says the conversation lasted fifteen minutes. Both of said affiants stated that they witnessed the occurrence. Those affidavits are silent as to the subject of the conversation or as to any complaint having been made to the court at the time, nor was there any showing otherwise made by plaintiffs as to the subject of said conversation. There is no showing anywhere in the record that said episode was observed by the court or called to its attention, and no exceptions are shown to have been taken to any action or nonaction of the court at the time. Defendant filed counter-affidavits of himself and both the *915 named jurors, to the effect that the conversation lasted but three or four minutes, was concerning the Boy Scout band which was then practicing on an upper floor of the court house, and that there was no mention of the case on trial or anything pertaining thereto.
The conversation having been explained to the satisfaction of the court, Boyle v. Bunting Hardware Co. (Mo. App.), 238 S.W. 155, and there appearing to have been nothing in the nature of a corrupt act or act pointing to turpitude, said episode would not be ground for setting aside the verdict. [Feary v. Met. St. Ry. Co.,
We have considered all the points made in appellants' brief and find no prejudicial error. Respondent, in connection with his brief on the merits, presents a motion to dismiss the appeal for alleged noncompliance with our rules. We think the motion not well grounded and it is overruled, but since we are affirming the case on the merits it is needless to discuss the reasons for denying the motion. The judgment of the circuit court is affirmed. Westhues, C., concurs; Bohling, C., absent.
Addendum
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.