234 S.W.2d 783 | Mo. | 1950
Lead Opinion
[ 783] Mr. and Mrs. Victor Lee Pearson instituted this action against the Kansas City Ice Company and its driver to recover damages for the wrongful death of their son,’Victor, Junior. Upon the trial of the action a jury returned a verdict for the defendants and the plaintiffs have appealed and assign as error the giving of the defendants’ sole cause instruction. The defendants contend, however, that there is no evidence to support the hypothesis of the plaintiffs’ humanitarian submission and, therefore, any error in their instruction is immaterial.
The circumstances of the fatality, in general, were these: On August 7th, 1947, Victor who was then twelve years old, and his playmate, George Pearson, also twelve years old, were riding their bicycles north on Broadway, in Kansas City, between 25th and 26th Streets. They had left a filling station at 2543 Broadway and Victor was riding ahead of George, ten to fifteen feet. Four or five ear lengths north of the filling station, near 2529 Broadway, automobiles were parked along the east curb of Broadway and Victor was riding • about three feet out from the line of parked cars. The ice truck, a 1926 American-La France, driven by Mr. Hyle. who was then more than seventy years old, and as we understand, who had driven the truck since 1926, turned on Broadway
The plaintiffs’ humanitarian case was submitted upon the hypothesis of Victor’s imminent peril and specifically that Mr. Hyle thereafter could “have turned said vehicle to the left and to have stopped the [784] same and thereby have prevented the truck from striking and injuring Victor.” The defendants say, as is the fact, that the time which must be considered in determining whether the truck could have been stopped or so swerved as to avoid the casualty “is limited to the period between the time when the bicycle struck the parked automobile and the moment at which the boy contacted the -truck.” And, the defendants point to certain evidence and urge that even under the most favorable view a finding that the truck could.have stopped or sufficiently swerved in that period would be based on mere conjecture and speculation. It is insisted that there is no evidence as to how far the truck could have been swerved and nothing to show how far west on Broadway Victor was thrown. It is also argued that the plaintiffs’ case as to certain distances, if accepted, is based upon split seconds, and in any event, it is urged that Mr. Hyle did all that was possible in the circumstances and that there is no substantial evidence that the truck could have been stopped or swerved so as to avoid the fatality after Victor’s imminent peril arose. It was the defendants’ contention that the true facts of the occurrence were, and their evidence supported the contention, that Victor was not ahead of the truck but was even with the right side of the truck’s cab when the bicycle hit the parked automobile, that he was not hit by the front wheel of the truck but was thrown under the truck and run over by the rear wheél only. And, of course, under that version of the occurrence there was not time and space in which to stop or swerve the truck and avoid hitting the boy. Likewise, even if Victor was ahead of the truck and was hit by the front wheel, there could be no humanitarian case if he was then so close to it that there was neither time nor space in which to stop or swerve after Victor’s bicycle hit the parked car and he was thrown into the path of the truck. That was, in effect, the situation in Dipaoli v. Langemann, (Mo. App.) 192 S. W. (2) 35, in which there was a defendant’s verdict. There a boy stopped at a street intersection astride his bicycle and, after looking, proceeded across the
In the first place, there were other general facts bearing upon the specific question. Broadway is forty-two feet wide and, according to the plaintiffs’ evidence, there was no southbound traffic and no traffic from the north near the truck. The parked Willys automobile was six to seven feet wide and Victor was traveling about three feet out from the parked car and was thrown about five and one half feet into the street from the parked car. A policeman measured the distancé from the east curb of Broadway to the right-hand wheels of the truck and he said that the distance was twelve feet seven inches. Since the parked Willys was six to seven feet wide and Victor was thrown about five and one half ■ feet into the street from the Willys, it is a reasonable inference that' he was thrown into the path of the truck. The [785] truck left skid marks upon the pavement and the policeman said that these marks did not swerve or turn but ran in a straight line for a distance of ten feet.
The boys had been in the filling station at 2543 Broadway to get a drink and had been playing with -the water fountain. Donald Krampe, who operated the filling station, said that he was. ¡standing in the island of his gasoline pumps and watched the boys as they proceeded north down the street. Because his evidence is the crux of the plaintiffs’ case, the salient parts of it follow. He said that the boys stopped at the end of the filling station driveway, "got in a little powwow there and started on down the street” north,
On cross-examination these pertinent questions were asked and these relevant answers given: ‘‘Q. Now, can you tell us from that place on the island how far north of you did the accident happen? * * * A. Roughly 300 feet. * * * The boy that was killed was in front on his bicycle, the other boy I would say was about ten or fifteen feet behind him. * * * Q. How near were they to the parked cars parked at the east curb? * * * A. Well, they were, I would say, three feet away' from the cars on the outside of the street side of the cars. * * * Q. Those parked cars began about five car lengths north of your driveway? That is' right? A. Yes, sir, as near as I can judge by that, they were that far, yes, sir. * * * Q. Will yoii tell the jury how you saw the accident when you were standing fifteen feet in from the curb line? A. I took specific interest in these two boys as they went down the street, from my island you could see practically to the Phillips 66 station without getting off of my island right on
This is the essential part of Krampe’s evidence and in some phases of it he is corroborated by the fair inferences of the defendants’ evidence, even by Mr. ITyle’s testimony. Mr. Hyle said that his speed was ten to twelve miles an hour, not over fifteen. He had seen the boys earlier in the day and after he turned onto Broadway he saw the parked cars and he saw the boys on their bicycles going north on Broadway and they were ahead of him, even though it is his testimony that he overtook them and that Victor did not wave and fall until he was about even with the fender. When asked by this counsel in what distance he stopped’ the truck he said: “Oh, I judge twenty-eight or thirty feet.” On cross-examination the following questions were asked and these answers given: “Q. Well, now, from the time you started to stop until the time you brought your truck to a stop, understand me, from the time your mind said to your foot let’s stop until you brought your truck to a full stop you, traveled only about ten feet, didn’t you? A. Well, skidded ten feet.' * * * Q. Mr. Hyle, you did
• He says he did not read the statement and it may be. disregarded for the purposes of .this opinion but nevertheless the fair inferences, favorable to the plaintiffs, from the quoted evidence demonstrate a submissible humanitarian case. The only testimony as to the length of the truck was that of Krampe who said it was twenty-one feet long. If the bicycle was two truck lengths ahead of the truck when it hit the parked car and Victor fell five and one half feet to the left of the seven foot parked Willys into the street, the truck was then forty-two feet away. If the bicycle was but a truck’s length and a half ahead of the truck the distance was at least thirty-one feet. In either case Mr. Hyle admitted that he actually stopped the [787] truck “in twenty-eight or thirty feet from start to finish” and there is and can be no doubt that he saw the boy and the bicycle before and at the moment it hit the parked car. As to his ability to swerve the truck the situation is epitomized in Steger v. Meehan, (Mo.) 63 S. W. (2) 109, 110, “If an automobile can be driven (at 25 miles per hour) 75 feet in two seconds, surely it can be swerved 3 or 4 feet to one side in that time to avoid striking a pedestrian 2 feet from the curb. If it can be brought to a complete stop in 20 feet, surely it can be slowed down enough in much less than that distance to allow a pedestrian, in such a position, to escape it.” See also Webb v. Cox, (Mo. App.) 53 S. W. (2) 1057, a bicycle-automobile case. It is demonstrable mathematically, from the evidence favorable to the plaintiffs, that the truck could have stopped if the circumstances of the occurrence were as the plaintiffs’ witnesses described them. By way of illustration that a humanitarian case was made and to contrast the cases upon which the defendants rely see Radabaugh v. Williford, 342 Mo. 528, 116 S. W. (2) 118; Levins v. Vigne, (Mo.) 98 S. W. (2) 737 and Dickens v. Heitzman, (Mo. App.) 141 S. W. (2) 183. In the Badabaugh case a father and his eight year old son came from between angle parked cars and the boy was hit by an automobile. The court summarized the case in this language, 116 S. W. (2), l. c. 119: “Defendant stopped his automobile within a distance of 15 feet. It traveled approximately 40 feet (at a speed óf 15 miles an hour) without changing its course or stopping after Loren was within defendant’s range of vision.
Against the plaintiffs’ hypothesis of the defendants’ liability under the humanitarian doctrine the court gave, on behalf of the defendants, the following sole cause instruction:
“The Court instructs the jury that if you find and believe from the evidence in this case that the defendants or either of them were not negligent in any respect set forth in Instruction #1, which directly caused-or directly contributed to cause the injuries in evidence sustained by Victor Lee Pearson, Jr. mentioned in evidence, .and if you find and believe from the evidence that the said Victor Lee Pearson, Jr. mentioned in evidence failed to keep a reasonably careful or vigilant lookout for traffic and the parked automobile mentioned in evidence and was thereby negligent, if you so find, and if you find and believe from all the evidence that the aforesubmitted failure, if any, of the said Victor Lee Pearson, Jr. to keep a reasonably careful or vigilant lookout, if so, was the direct and sole cause of the collision in evidence, if so, and the injuries sustained by the said Victor Lee Pearson, Jr., if so, then your verdict must be in favor of the defendants.”
The appellant-plaintiffs insist that'the instruction is prejudicially erroneous iii that there is no evidentiary basis for it, that it does not sufficiently and properly hypothesize the facts, fails to negative negligence on the part of the defendants and injects into consideration antecedent negligence of the deceased. Under the defendants ’ version of the occurrence there was air evidentiary basis for the instruction (Dipaoli v. Langemann, (Mo. App.) 192 S. W. (2) 35) and in our view, the only question necessary to a determination of the appeal is whether the instruction sufficiently and properly hypothesized the factual situation. It will be observed that the only facts hypothesized are that “said Victor Lee Pearson, Jr. mentioned in evidence failed to keep a reasonably careful or vigilant lookout for traffic and the parked automobile mentioned in evidence.” As the defendants urge a similar instruction was approved in Bashkow v. McBride, (Mo. App.) 177 S. W. (2) 637. However, the instruction in the Bashkow case did refer to “the time and place mentioned in the evidence” [788] as this one does not. Likewise, the approved instruction in Jants v. St. Louis Public Service Co., 356 Mo. 985, 204
The foregoing opinion by Barrett, C., is adopted as the opinion of the court.
Concurrence Opinion
[ 789] I am doubtful on the holding of the principal opinion that plaintiffs made a case for the jury on the issue whether the truck driver could have saved the boy after the latter’s bicycle suddenly struck a parked automobile and threw him into the street in the path of the approaching truck. One witness estimated the truck was then about l-% or 2 truck lengths away, an estimated distance of 31 to 42 feet. This witness said the 'truck was traveling 10-15 miles per hour. The truck driver said the same. And he said he stopped the truck in 28-30 feet. Before he fell the boy was waving at the truck driver, whom he knew, thus diverting the latter’s attention. Certainly it is a case where reaction time was a very important element. I concur in the ruling of the opinion on the sole cause instruction.