*1 OF MISSOURI, SUPREME COURT McCarty. Cyc. 507, In 26 the doctrine is summarized thus: appeal proceeding’s ap ill “On or error mandamus pellate weight conflicting court cannot consider the .of evidence, review discretion of the court below in refusing granting appears where it writ, to have lawfully exercised no been and abuse is shown.” bar
In the there no case contention that there abuse of discretion the trial court. And all the Circumstances we feel under the writ was very properly denied. affrmed, of the
Let circuit court be All ordered. It is so concur.
LEMURAL and HORNBUCKLE CORA HORN
BUCKLE v. E.W. McCARTY and BERNARD Appellants. MALUGEN, One, July 27,
Division Injury Jury. Automobile: to 1. NEGLIGENCE: Pedestrian: Case for truck, that the driver a motor Evidence as turned the traffic busy post at the intersection two streets and headed into boy approaching street and before he reached the little cross street, of the sidewalk on the far side of the cross line seen, driving, he looked the direction he was that the approaching path truck, about enter boy, that he could also have seen from his continued attitude, progress, general he was direction and his wholly truck, to the oblivious that he did opposite direction, but had face turned in the look heedless dangers going might he was obstacles or of encounter, where carry .amply sufficient to to the the case of the against employer parents negli- driver and his for killing gently child. Negligence -: -:-: -: of Child: Cause case, seven-year-old negligence such Death. In child involved; truck, if but the driver of the is not motor the ex- care, boy’s ordinary perilous ercise have discovered the TEEM, APEIL Yol. time, by peril, the exer-
position of bis and bis obliviousness him, witb ordinary diligence, tbe a collision avoided bave cise boy’s walking against negligence, and not tbe driver’s *2 juridical death. child’s was the cause Knowledge of Deceased’s -: -: -: Instruction: 3. plaintiff Danger: for An instruction which Omission: Harmless. require expressly the to find that driver of does ordinary “knew, care could have of exercise auto-truck danger known, there- was oblivious deceased was that case, to,” technically of defective; in view the fact in this is but have discovered would the driver conceded that that stands and; dánger he but looked his that deceased was oblivious of harmless, any degree care, the omission of observed with Looking Laterally. duty -: --: -: -: It straight ahead, only of automobile not the driver an to look of laterally laterally ahead, ahead; and if but as his corner, discovered, truck rounded a before the front passed line of the truck of on the street cross the side of that collision between toward them was imminent, defendants are not entitled to an instruction re- straight only. quiring the driver to look ahead Earning Capacity. -: Verdict: Loss of Child: Excessive The by parents negligent killing for the recoverable of their pecuniary child limited to the value of minor are child’s minority, during expense supporting less the of services educating prospec- him. But estimate value of the seven-year-old only upon can of a child tive services reached general character, of the. most considerations much must jury. sense left to the common fairness of therefore be things, and in In the natural order view of the limitations years prohibiting age children under fourteen the statute from employed practically gainful being occupations, all the value age negligi- of a child of the services before reaches during present succeeding value of services ble. seven reasonably years dollars, five cannot thousand exceed and in view things only in this all these case is affirmed plaintiffs $10,000, remit one-half their verdict for condition judgment. the date as of. Court.—Hon. Almon Butler Circuit Ing, Appeal Judge. condition). (upon Affirmed
364 SUPREME COURT OP MISSOURI, oody appellants.
Hanson & IP developed (1) there case, in this the facts Under as liability part either of the defendants, is no on the been sustained. should have them, arid their demurrer King Railroad, v. 541; 530, 214 Mo. Railroad, v. McGee Burg’e Degonia 595; Railroad, 564, 224 Mo. 1; 211 Mo. v. Guyer 174 Mo. Railroad, 101; Mo. v. 76, v. 244 Railroad, Loring Rail- v. 77; 62, Keele v. 258 Mo. 344; Railroad, S. 225 W. Railroad, Mo. Branstetter v. 349; 128 road, Gray v. Rail- Railroad, 350; v. 186 Mo. 1035; Markowitz Mo. App. 541; Jones, 291, 299; Lee v. 181 Mo. road, 179 Hight Bakery Co., v. 411; S. W. Costello, Shields App. App. 73, Prank 190 Mo. Free, 168 Mo. 431; (2) numbered one Plaintiffs’ instruction S. W. *3 Ry. prejudicially v. Met. Co., Ellis St. erroneous. Co., v. Mo. 593, Transit 190 680; Eckhard 657, 234 Mo. Joplin Albright 229 829; S. Rubick Co.; W. v. Oil 618; Bingham, 223 v. S. W. 219 S. Stark Sandler, 406; v. W. (3) Mo. 62. Defendants’ 258 Railroad, v. 946; Keele nine three, four, six and should instructions numbered prejudicial given, error. and their refusal was have been App. Hight Bakery 458; Prank v. Mo. 433, 168 Co., v. Railway App. Co., v. 178 Mo. Battles 73; 190 Mo. Free, App. App. Gray 541;' 179 Mo. Railroad, v. 628; 596, (4) App. The verdict Mo. 387. Railroad, 46 v. Schmitz only have resulted excessive, Light Dugdale prejudice. & passion v. Power from Higginsville, Kelley App. v. 185 Mo. 243; Mo. 195 Co., App. 344; 22 Mo. Parsons Railroad, v. App. '55; Hickman injury (5) the deceased 286. Mo. 94 Railroad, v. as a result was received death caused which not on truck, account into own act part of the defendants. Battles negligence on (cid:127) (cid:127) McNulty App. 627; Railroad, v. Mo. 178 Railroad, v. Spillane 414; 135 Mo. App. Railroad, v. 439; Mo. 166 v. Railroad, 196 562; Webb 136 Mo. Railroad, Payne v. Gray v. Rail- Murphy Railroad, 56; 228 Mo. v. 86; S. W. App. 541. Mo. 179 road, 165
Yol. APRIL TERM, respondents. Phillips for David Mill and W. Sam M.
(1) under were to recover Plaintiffs entitled 181 Mo. facts shown in App. Eisenman v. Griffith, this case. Bakery Spivack Rowe 214 S. W.
183; 166; v. Co., Young, App. Hopfmger 179 v. 172 Mo. v. Hammond, 203; Whipple, 546; v. Mass. 747; S. W. Rasmussen 211 Nelligan Berry Auto- 329; Fountain, v. 225 Mass. Ky. Ed.) (3 153 Akers v. 468; Fulkerson,
mobiles sec. A. Deputy 51 L. 595, v. R. Kimmell, Va.
228; W. (2) (N. Ayers Ratshesky, S.) 213 Mass. 989; turning suddenly the truck chauffeur in Defendant’s pursuing on northern which it direction, from Broadway, Maple Street, into Fourth west signal sounding giving horn or other without back and while was car, in which he the direction shoulder, over his negligence. Vaughn gross proceeding, an act Nelligan v. Fountaine, & Sons, 783; W. Davis S. (3) The evi- 329; 7593, R. S. 225 Mass. Sec. time defendant’s chauffeur
dence shows Broadway Maple into Street, the truck west turned time struck until deceased, and in fact looking back over his shoulder at a chauffeur was holding already standing in the back end of that was Beyrel At the Hornbuckle had time, a barrel. the south side of Street and
left the sidewalk-on *4 or feet out in the street, nine ten and if was some been in chauffeur direction defendant’s looking’, been that is, have the direction that he should turning, readily he was in have seen which Beyrel, -who then in a north-western looking in across a direction di- western away in direction from the approach is, that a rection, automobile, him of the car, in to have warned time striking entirely, him have avoided in time to for the or testimony easily he could shows that turned Beyrel eight or could have it in car in behind MISSOURI, 166 OP SUPREME COURT v. doing, looking at what lie lie liad been ten feet if or in other some or warned him he could have shouted v. the car. Eisenman of the- manner Poplar App. 184 Bluff, Proctor 183; 181 v. Griffith, Mo. App. 155; 144 Mo. v. Hannibal, 0’Donnell 123; S. W. City, Mo. Sutter v. Kansas 536; Norton 180' Cramer, v. jury App. (4) The verdict of the this 138 Mo. 19; Pacific, Miller v. So. 226 Mo. not excessive. case is Ry. Bright 234 v. 657; Mo. Co., Met. Street Ellis v. App. 4219 allows dam- 202 Mo. Section Thatcher, up ages of cases to the amount of $10,000. kind this Any greater than would be ex- $10,000 for sum verdict a Any law. more than sum is, allowed cessive; be excessive or more than al- would not $10,000 by under way exactly fixing law. There is no lowed damages in of this kind. There is no cases amount question just opinion issue, it is matter of a law might might opinion man of one control and the opinion others. The fixed amount at' opinion judgment and This was their what $10,000. right judge in the matter. The would be trial opinion approved their verdict and and overruled the It was his motion for new trial. the ver- living not be disturbed. No man can should tell dict Beyrel’s value of services have been what the parents. The statute leaves this matter to the dis- jury. Even if court this should consider cretion excessive, this case still it verdict should not case that reason, and remand this for reverse because right this court tó order facts has under re- may as it believe of such amount mittitur verdict Printing v. Co., Cook Globe 227 471, to be excessive. Mo. National Bank Davis, v. W. 412; Midwest S. 561; Gaty Railway, Rys. Riggs 878; Co., W. United S. S. 227 W. by this seek
RAGLAND, C.Plaintiffs action to re- Beyrel, son, the death of their minor cover by motor truck, killed was run at the who *5 APRIL Vol. TERM,
crossing Maple Poplar Bluff, in Streets, of Fourth and day on the-12th June, Broadway, ran north
Fourth known Street, also as Maple The former east and west. Street, and-south; rising grade, approached the from the south on latter a Maple . which reached its crest the intersection. descending point proceeded west on a from that Street grade. forty and Fourth was feet wide, twenty-five. paved, at the streets and about Both were there traffic their median lines a was intersection crossing post. in The the business district was particular extensively city, Fourth Street in was and pedestrain and used for traffic of all kinds. travel years eight son months Plaintiffs’ wa.s seven and intelligent respects boy, He in all old. was an and gone healthy. school; He attended normal and had by ridden in around town automobiles himself, knew about them. The with which he collided owned was bottling, McCarty, engaged in who was dis- defendant tributing shipping Coca Cola and other soft drinks. employee, being driven -his and now It his co- was Malugen. The driver’s seat on the defendant, vehicle hack of motor. There was cab were fenders extending hack from wheels, front each over of these was running board, a short which served as a stepping roadway step from the into cab. Im- mediately back the cab was bed of the beyond out the sides of cab extended which some over back the rear inches and wheels. On the five six question it was loaded with cases of Coca occasion rear there also a in the end barrel Cola; weighing pounds. beverage, the entire load about 2500 equipped with hard-rubber tires, truck was The but paved street at rate five or six length noise. an hour made considerable miles except longer shown, vehicle than ordinary touring distance from the car. The short MISSOURI, SUPREME COURT OP *6 McCarty. Hornbuckle v. running step, approxi- or board, to the rear wheei was mately six feet. day
On the afternoon the heretofore mentioned, of plaintiffs’ boy age son and another of about the same walking Maple were north across Their line Street. of progress was coincident with that of the sidewalk on the Beyrel approximately left of side Fourth Street, or so. eating ice, was ahead, and both were cream cones. On opposite the side street from them the truck Malugen proceeding driven north at rate of from six to ten miles an It hour. turned at the traffic post, Maple and headed west on the north of side turning Street. At the time the truck was around the post safety boy point the Hornbuclde had reached a way walking half about across street. He continued slackening speed proceeded north, and the truck without progress brought together; on west. Their lines of them boy came into contact with board near front of the truck on the left side, was thrown down, passed killing and the left rear wheel over head, his him instantly. passed, body After the truck had of boy lying little with head toward the west, about six feet line of Fourth west west Street, and eight seven and one-half or feet south of north line Maple. Prior to collision the deceased seemed to entirely oblivious the truck and its movements. along going As he walked north had head turned and was to the west, and so continued until he Malugen contact into with the machine. came there Besides was another or man the truck—in the rear on or near the barrel of Coca Cola. Just as the turning post go around the traffic vehicle was west, to right turned head to the driver and looked back the load the man on toward the rear end and con- tinued so to look until the collision. After the machine proceeded along it near the turned curb on the north passed side Street. As front end the west of Fourth Street line deceased was north APRIL 1922.' TERM, Vol.
along eight north from the that line and was about feet space Maple. the truck line of There.was sufficient passed immediately in him instead behind given, warning front of him. No horn sounded speed until was the slackened after nor equipped The was not horn, collision. with a (cid:127) working. it if it was not With the load so, moving the rate feet, if have been within six per eight hour; ten feet, within from six miles eight going if rate or' ten an hour. at the miles plain- are those which the facts narrated establish. The essential con- tiffs’ evidence tended to *7 ’ by evidence that both were, introduced defendants flicts boys running and that the deceased ran into the were looking truck; all times that the driver was at ahead moving; the which he was and that the direction stopped space within not have been the truck could Malugen, driver, to ten feet. the from six testified: hoy driving day got killed; “I the truck the the was making the turn of Fourth and at the corner remember hoy got Maple; I the before to the I Hid see crossing; the when saw him he on south I first was side running right my at the side hoard; running short; was within one or two board was he feet going immediately I west; when saw car; I was out on at him look and throwed him, I hollered thing truck run next I knew the over brakes, and the right running hoard, was hood him. He step one-half feet, or four and was about four engine; right he about even with hack of the where sitting do not him; I first saw I recall I was when what just moment or two him, a after I saw him; I said to way, that; other around the I did saw to me and I his shoulder turned he had saw didn’t at him the truck and I and throwed on the hollored see (cid:127) I as soon as could after I did that I saw brakes. him.
. . . stopped have the truck <£I could not after the prevented into it m time hind walked wheel 170' MISSOURI, SUPREME COURT OP my my running on him; best; over throwed I tried going brakes, but car down hill there; the ear some ten or feet from run fifteen where ’’ him. jury hu-
The case submitted to “the was based question manitarian doctrine. No to the raised as sufficiency petition. denying The answer, after generally allegations petition, alleged that the a death of the deceased “came as direct result of his against moving being’ act in own operated by not on defendants, and. account of care- part of defendants, lessness on or either of them.” plaintiffs, returned verdict in a favor of assessing $10',000. their Prom a appeal. entered accordance therewith defendants seeking judgment, appellants In reversal (1) upon: rely refusal of the trial court to di- (2) giving a verdict for them; rect of an in- by plaintiffs struction asked and the refusal of others (3) offered defendants; excessiveness of the verdict. Appellants they
I. contend that were entitled to directed verdict because it was shown that the death plaintiffs’ son “came as a direct result of his own *8 running against moving in truck, act . . . and part on account of carelessness on the of defendants." ample The re evidence to take Case for question the case to the on the of the Jury. negligence. driver's As he turned the traffic post Maple and headed west Street and before he pedestrian crossing reached the of Fourth Street Maple, he could have he seen, had looked in the di going, ap in rection which he was proaching path and about to enter the of truck. He boy, would also have seen that the from his continued progress, looking in the direction which was and his general wholly approach attitude, was oblivious of the plainly him the machine. of With this situation before TEEM, APBIL Yol. boy, upon have was incumbent him to warned passed truck.
or or to have him, behind precautions doubtlessly have And one of these opposite di taken he not had face turned in the of the back toward the rear rection and been going of he was truck, heedless where and dangers might in front obstacles encountered of him. any, negligence, not in of the deceased is if in' show,
volved as the evidence tended to If, case. ordinary of driver of in the exercise care the truck boy’s position perilous and would have discovered peril by in time, of the exercise his obliviousness such diligence, ordinary collision, of have avoided the negligence boy’s walking (or’run driver’s and not juridical ning) against was the cause of the machine App. the latter’s death. Mo. [Aronson Ricker, 533.] 528, 532, plaintiffs’ portion principal
II. The material instruction as follows: “ you . find . . ... if that deceased was walking north before said collision across Broadway, on the toward the west side of course in of, imminent Oblivious of danger being by struck said automobile Peril: Driver's Kuowle~ge. truck, and that said deceased was at said danger, oblivious own time presence ignorant and that truck, of defendant’s byor the exercise of ordi- saw, driver of said might so nary seen, the said deceased care Broadway, approaching side of on said west north point peril position of imminent collision, and you believe from the if find and evi- from said position peril, of imminent he was such dence ordinary the exercise care on his thereafter, time appliances part, hand, means with occupants safety to the contents said reasonable *9 deceased, or to have have warned said truck, to MISSOURI, SUPREME OF COURT thereby changed truck, or the thereof and to have course negligently averted the with failed deceased, collision by direct result there- to do and that reason and as a so, against and was auto-truck, deceased walked of, said thereby killed,” run etc. knocked down and Appellants’ that is, criticism of the instruction it require Malugen, jury the did not find that driver, to ordinary “knew, exercise care could have danger known, that the deceased was in and was ob- technically livious thereto.” The instruction was de- requiring express finding in not an fective that driver ordinary in the exercise of care have seen that peril. deceased was oblivious of his However, fact Malugen that would have discovered the deceased’s un- danger, awareness of his had' he but looked and observed degree him with on care, stands conceded the evi- apparent eye- dence. His obliviousness was to position witnesses who were to see and note his Malugen actions attitude. himself testified that finally hoy, saw the when board an in- collision, stant before the “he around the was. way . other . . and I he didn’t saw see the truck.” require jury expressly The omission, to therefore, find that driver saw, would seen had he been exercising proper that the care, deceased was not con- scious harmless. ground
The instruction further criticized on the walking. that assumes deceased language gives color this construction is phrase, walking “so north on said west side Broad- way.” But this should read in connection with the preceding part explicitly of the instruction which re- quired jury to find “that deceased was . . . north across the west side of ’’ Broadway, There is no etc. merit the contention. in. Defendants their instruction numbered 3 re- quested court to instruct as follows: you . .
“. if find and believe the evidence Beyrel in this case that the deceased, Lemural Horn- *10 TERM, APRIL Yol. v.
buckle, operated by ran into the side of the truck defendants lly part passed after the front thereof had Looking point, you plaintiffs that then cannot find for Latera though you may defendant, even find that Mat- ugen, back or to one side and on that account did not see the deceased before he ran into his truck." theory
This instruction was asked on the that duty requires of a driver of an automobile him to look going only in the direction in which he is and not be- anything happens hind nor to one side to see if after the part passed. Generally front of his machine has speaking true, only hut the driver must look not straight laterally Ricker, [Aronson ahead but~ ahead. supra; Railroad, 149, 163.] Holmes v. 207 Mo. Had Malugen done that he would no doubt have discovered boy that a collision between the truck and the was im~ minent, passed before the front of his machine the line progress-that highly probable of. the latter's it was against boy, that wittingly against the truck would run or the un- the truck. At least there was evidence tending ignored to show such facts. The instruction phase case, prop- this essential and was therefore erly refused. assignments
There are other of error based on the by defendants, ap-' refusal of instructions offered but pellants press they do not them. In event are in disposed already effect what has been said. $10,000
III. .Was the of excessiveservices The ex penses attending injury and burial f the deceased were not shown. Plaintiffs' recoverable are pecuniary limited therefore to the value of their son's during minority expeiise sup services porting his less the educating him. An estimate of the value prospective young services of a child too to have developed any particular aptitudes talents or can be only general reached On considerations of the most character. In such case much must be left to the corn jury. mon sense and fairness of the That the services ¡MISSOURI, OP SUPREME COURT Roth. Lehner minority during $10,000 would his be worth their son improbable. Up plaintiffs wholly to the however, is, negligible. age earnings been have of fourteen only because he would had small This so not minority, capacity during period earning but imposed limitations the statute which because years age prohibits fourteen under children *11 gainful occupations. practically being employed in all present 184.] value of services [Laws 1921, p. expense years, during remaining less the of seven reasonably support, not exceed his education and of sum $5000. judgment Accordingly the affirmed the con- days plaintiffs within ten from this date dition en- judgment; $5,000 of as of the date ter a remittitur of otherwise, the will reversed and the cause C., absent. Small, C., concurs; Brown, remanded. foregoing opinion by Rag-
PER CURIAM:—The opinion adopted hereby as of court. laND, C., judges concur. All of Appellant, et ux. ROTH v. JOHN LEHNER,
MICHAEL One, July 27, Division Pay. writing ACTION- ON No WRITING: Promise If the sued language stating obligation expressly- .pay on contains no an expresses obligation no facts an arises such as from which money, implication' law, payment an it is one for the majority [Approving the holder cause thereon. has no of action 833, Roth, opinion Appeals W. in Lehner 227 S. Court 232.] 229 S. W. purchase -: Limitations. In consideration for the
-:2. advanced, plaintiff’s price saloon and hundred dollars one de- plaintiff writing signed and delivered to of which the fendant Louis, Mo., September 1, English “$834.00. was: St. translation thirty-four dollars, pay Eight hundred to the order of thirty-four eight hundred and Lehner dollars value re- Mike per per Held, cent annum.” at the rate six the in- ceived exchange anything else, a bill of more than resembles strument