Smith Ex Rel. Roth v. Mederacke

MISSOURI, 538 SUPREME COURT OF Smith v. Mederaclce. $3000) provided beneficiary will exceed be aid to id ” certificate.’ this por It will be observed that the court ruled that the which, tion of the certificate undertook to down whittle agreed sum was void under this statute. In $3000, Temperance Taylor 94 v. National Mo. l. c. Union, 40, companies we had ruled that could down the scale by provision limiting the amount to named sum one of the members. In assessment McFarland’s Case we Taylor longer authority, that the Case was no be ruled very by plaintiff in cause of the statute invoked the case In McFarland’s Case the amount could have been nisi. by multiplying the number of mem certain rendered by liability number of dollars of the and the two, bers appear. The for the calculation were as would facts easily as in the instant case. But the ascertainable something statute meant rule was announced liability. to find out the than a mere calculation more meaning, giving the statute a sensible The court paid upon any meaning be that the sum to and that expressed figures. contingency in exact to be portion simply emphasized ruling statute language policy, saying of The statute, that the money promises specify which it exact sum of “shall contingency against.” pay insured To each money’ not mean exact does “specify the sum you kind of cal sum” some the “exact can find out developed. There is no con to be culation facts quashed. opinions writ should and our shown, flict of All It so ordered. concur. 357; 3, 1, 11 2 and 11 C. J. see. 2 C&rtiorari: and 3: Headnotes Insurance, (1926 Anno). Accident C. J. Headnote 4:

C. J. sec. 341 (1926 Anno). sec. Friend, Next SMITH, MABEL FRANK SMITH ME RICHARD ROTH, ELIZABETH ANNA D Appellant. ERACKE, February 11, Banc, 1924. In Right- Wrong of Street: Side Automobile: On NEG-LICKENCE: 1. alighted from a north-bound Ordinance. Deceased Hand Yol.

Smith Mederacke. busy crossing, passed car at a around westward front it, boarding to reach the usual Numer- east-bound cars. going ous south north-and-south automobiles on the halted, passing and after the center of that street a few feet she waiting for a chance to cross over to the west side. One of the suddenly standing, automobiles moved where she was towards thereupon stepped east, and while backward the and towards attempting thus run de- to avoid automobile she was truck, servant, approached fendant’s driven from the his who speed eight south a a of miles an hour. When struck she was foot and a half or two west feet of the center of the north-and- proceeded north, south street. car had The street and there was prevent no vehicle or other obstruction to the driver from driv- ing possible” right-hand the truck as “as near to the east or curb. stop collision, nothing He made no effort to before the there was view, right to obstruct his and the street of the truck was ample pass. vacant and there for his there was room truck to vehicle, except required passing The that “a when a ordinance ahead, keep possible.” right-hand vehicle shall as near the curb as Held, proximate stepping cause of that the her death was not her truck, having passed back after in front of the but of the failure right-hand possible, near the driver to as the and by being his further violation the ordinance of west of the center of the street. Right-Hand Applicable -: -: Ordinance: to

2. Pedestrian. vehicle, requiring except ordinance "a vehicle ahead, “keep right-hand possible,” as near the curb as' protection pedestrians, enacted for benefit and of the as well as persons traveling for the benefit in of vehicles. The owner of an automobile, servant, driven violation of the ordi- part center, the nance drives on the of street left of its and there injures just pedestrian alighted who has from a street car at a . busy passed public crossing right-hand and from the has of side an the to the left of its center effort board another street, damages. is liable for her street car on the cross -: Street-Car Tracks Near -: -: Curb. 3. The fact in the street that street-car tracks are near the curb is no ex- requiring the cuse the violation of ordinance a vehicle to for possible,” “keep near the curb as where there is no as street car track, especially and where the rails of the track are on the broad driving of and do not obstruct the vehicles thereon. and flat Street right public to the use of a cars have no exclusive the the tracks in the has a to drive absence street cars. Arbitrary -: -: Instruction: 4. -: Omission Practicable. defendant’s evidence that Where shows there no COURT OP MISSOURI. 540' Smith Mederacke. prevented the truck fact driver or circumstance driving right-hand the curb on the street as side by driving possible, on and that he violated ordinance requires part center, the driver an left of the possible,” right-hand in- as near drive his “truck jury requiring it drove as near to find that he stead of possible,” “reasonably practically curb as was defendant, rights prejudices is at worst no wise harmless error. Damages: To for Loss of Mother: -: Instruction Minors Specific Minority. Language: Limitation to General An instruction they jury telling the minor if find a verdict will, your “you judg- damages their at such sum as will assess fairly justly compensate opinion, all them for ment and injury losses, any, directly necessary pecuniary mother,” proximately resulting of their them from death specifically erroneous, limit amount does recovery pecuniary plaintiffs during loss of recovery necessary minority. The limited the to the by mother, pecuniary the of loss sustained death their of more, nothing if and and defendant desired authorized the re- covery during limited to loss that would sustained their duty minority specifically it to ask an instruction limiting damages.’ their Damages of -: Excessive Verdict: Loss Mother: to Minors:

6. minors, boy boy girl thirteen, $10,000. and Two eleven a the good health, damages for sued caused loss of not their negligently mother, run an down automobile and years, two Their father had been dead and their mother killed. healthy, strong, thirty-fiv'e years age, willing able and children, sup- support to herself her and their sole work to and school, port. employed open-air where She was an she worked room, regularly dining receiving per and $52 in the kitchen cigar little flat with the children over a month. She lived school, store, early mornings to the where she received went breakfast, returning three and four between afternoon her day children, devoting doing to her the rest their keeping washing sewing Held, them in school. it money spent children, she earned and for her was not them, training the mental and moral hut home she furnished them, as have bestowed that constitute she would mother especially pecuniary pecuniary loss, to value unhealthy boy been mother’s care and serv- would have little ice, not a verdict for ten thousand dollars was excessive. Yol. 1923.

Smith v. Mederacke. City Appeal Frank- St. Louis Court.—Hon. from Circuit Judge. Miller, lin Affirmed. appellant. for A. and Thomas J. Cole Houts

Charles (1) giving 1 on be- Instruction court erred in The jury that plaintiffs. instruction told the This half of the driving de- they not defendant’s if found chauffeur possible, to close truck as fendant’s proximate they cause failure was found jury ver- return a should of Mrs. Smith, the death defendant, (a) question against whether as to dict right- close or not chauffeur was defendant’s possible been submitted should have hand curb as right- jury, failed drive as close to he certainly possible not the such failure hand Majors proximate Ozark v. Mrs. Smith’s death. cause of Baker, 222 W. Switzer v. Co., 501; Power & Water S. Thompson pp. Negligence, 1372; N. sec. 160 W. Wall.) Company (10 U. S. 61-62; Reeves, Railroad MeClary v. 532; St. 176; Ballantine, Daniels Ohio Ry. (b) The ordinance 3 Neb. had no Co., prevent designed its this pedestrians as was makers to regu- but struck, from was intended by causing well “vehicles to late traffic, approaching other vehicles side so that pass crossing rear will have room to without being no instruction The above true, the left side.” given. on been Mans- based the ordinance should have Mfg. Wagner v. 242 field Elec. Glaser Co., 400; W. v. S. Rutledge Ry. 180; 221 110 Rothchild, v. Mo. Pac. Co., Mo. (c) proper 312. a Mo. Even if on ordi- applicable nance was to instruc- facts given clearly improper, tion an instruction and such approval any other has never received this or Waterbury App. 380; court. v. 207 Railroad, 111. Western App. Co. v. Harris, Union Tel. 6 General 263; Ga. Stack v. OF MISSOURI, COURT 542 y. Mederacke. Baking 342,167 Bullís 98 92; Ball, 223 v. Wash. S. W. Co., (2) Berry Instruc- 272. Automobiles, on sec. 942; Pac. incomplete damages it in that is tion 3 on measure the. recovery only loss should not direct does minority during’ does nor children, of the sustained any give determin- to consider in it ing as to what directions Ry. Pac. Co., v. Mo. the loss to the children. Goss App. McPher- 509; 91 Mo. Railroad, Mo. Stoher v. 614; Sedgwick Ry. Dam- 259; son St. 97 Mo. Co., v. Louis (18 ages Ed.) it been held sec. 577. know has We request re- non-direction in the mere absence of is applied this rule been the situa- error, versible has to we tion Morton Tel. But Co., here. 217 S. W. 831. v. show submit the first cited and the instruction cases itself given incompleteness, that, its it in such a state it amounted but to mis-direo non-direction, tion. In event it one exces- of the of the causes (3) clearly sive verdict. verdict excessive, passion prejudice part the result of on the jury. City, William v. 783; Kansas 177 S. W. Nelson Ry. Ry. Co., 104 Mich. Co., Babaccio v. 582; 53 Atl. (4) Plaintiffs did not state constitute facts sufficient to specification negligence of action cause under requiring with reference to the violation of the ordinance keep right-hand a driver of a vehicle to “as near possible.” Bakery In Stack Co., S. 89,W. court declared that the ordinance have referred to would literally. to be held unconstitutional if taken In order “ holding avoid it unconstitutional, the court ‘Us- said: ually,’ practicable’ import ‘when or words similar ‘keep language qualifying must be understood as ” near this, the curb.’ Under the ordinance as construed duty court, was not driver defendant keep right-hand pos- his truck “as curb as only duty sible.” His keep was to as near reasonably possible. al- There is no legation right- that he did not his truck as near the possible. reasonably hand curb as was Plaintiffs, failing allege a violation of the ordinance, failed 543 Yol. y. Smith Mederacke. respect violation, action with such a cause of to

statS question jury submission of such and the 550; wholly Matthieson 219 erroneous. v. Mo. Railroad, Railroad, v. 103 Mo. Barker Railroad, 131; McIntosh (5) 91 86.Mo. Even if the driver of truck defendant’s question, ordinance in violation violated proximate injury. cause causal There was no position connection between the defendant’s testimony Mrs. Smith All who was killed. shows not in the line of travel of the truck until she sud- path. stepped denly backward into This she was its through approach fright to caused do at auto- anof coming opposite mobile direction. There dis- is no pute whatever fact. If defendant was liable keep vigi- all, he liable because the driver did not stop lant watch and because he after failed the truck discovering peril. Mrs. re- Smith’s The accident did not sult from where he had no business be. If he had been ten feet further or left to the west, clearly hand side the street, which would have been wrong of the street for him to side he would have on, violating been ordinance, but Mrs. would have hit Smith. This shows that the mere violation ordi- nance did not him cause hit to Mrs. Smith. Rutledge respondents. Lashly

Holland, & (1) ap- requiring The traffic ordinance the driver of pellant’s keep upon truck to side properly (a) jury, submitted Whether so, driver violated the traffic ordinance whether and, proximate such violation was the cause of the collision, questions jury Baillargeon for the determine. Myers, Baking 504,182 37; Cal. Pac. Stack v. General (b) providing Co., 223 S. W. 89. An ordinance “a except vehicle, a vehicle shall ahead, possible” as near the is a valid traffic regulation persons lawfully using for the benefit all Ely-Walker the streets. v.Ward D. G. 348; Mo. Co., MISSOURI, OF COURT y.

Smith, Mederacke. Hayes Railroad, v. S. W. 879; 187 Crawford, v. Meenach App. 365. Mo. 184 Heffner, v. 241; 111 U. Grouch S. given this (c) instruction form of the The proper. The following ordinance, the language which an instruction is for the time modification Supreme general in the trial is in the court, terms appellant thought (2) measure If counsel for Court. misleading, incomplete, damages con- might language any fusing lead contained give they astray, jury court should have asked the embodying they proper, their deemed an instruction as Having subject. relating to of the law this own ideas they precluded complaining of so, failed to are do respondents. given v. the one Railway Hoover behalf of Browning 124 77; Co., 227 Railroad Co., S. W. v. v. Co., Mo. Minter v. Bradstreet Mo. 71; 492; 174 Fordyce, 18; 30; 190 Mo. v. 213 Railroad, Waddell Mo. King v. 239 250 717; Mo. v. St. Railroad, Norris Louis, rel. Powell 514; Railroad, 453; Mo. v. 255 Mo. State .ex Rys. Reynolds, Sang 38; v. Mo. 262 Co. 257 v. St. .Louis, App. v. Mo. 463; Lusk, Winston 186 Mo. 381; v. Carter (3) App. 193 Mo. 223. ex- Wabash, The verdict was not precise jury cessive. The confined to calcu- lation as to the amount but loss, were entitled physical, training consider the mental and moral estimating pecuniary they children in sus- loss which through tained the death of their mother. widowed Gen- try App. v. Railway, Railroad 172 Mo. Co., Stoher 652; v. 91 507; Mo. Omaha Water v. 502; Co. Fed. Schamel, 147 Ry. Ry. Butte Elec. Co. 164 Jones, 308; v. Fed. Mo. Pac. Tilley Ry. Co. v. 37 Baier, Neb. 235; Co., v. Hudson River (4) 29 N. Y. 86 252, Am. Dec. 297. The humanitarian unchallenged doctrine recovery stands a basis for Upon apparent case. the whole record it respondents ought judgment ought, win and the there- Railway fore, be affirmed. Shinn v. 181; Mo. Co., 248 Peterson Schnepback v. Transit 199 Mo. Co., 344; Gas v. Co., 232 Mo. v. 611; Fox Winder, v. 127 Mo. 514; Noble Railway Blount, 77 Mo. Hoehl 239; 344; 119 Co., Mo. Yol. TEEM, OCTOBEE Smith v. Mederacke. Eailroad

McFarland v. Mo. Sherwood Heim, 335; Co., Mo. 346. damages C. Suit for for the

SMALL, death of the plaintiffs, mother of the who were minors, their next years friend. The father of the died about two May 1920, before Johanna mother, Smith, was run over and killed at or near the intersection of city Grand Avenue and Market Street in the of St. Louis, operated by a truck owned defendant, engaged chauffeur while in said business. defendant’s charges negligence petition are, operated negligent speed, the truck was at a rate of to-wit, negligently failing vigilant fifteen miles an hour, a persons upon crossing, neg- highway watch for ligently turning said and upon highway truck

said cross- said ing, negligently turning body said truck said prox- negligently operating said truck in close deceased, imity going car in the same direction, behind a street failing negligently truck motionless until to hold said negligently failing could cross said street, said deceased stop said chauffeur ob- aside said truck after or turn deceased, position danger in a on the street served said ordinary would have observed or in the exercise of care stopped truck, or turned aside said her in time to have par- operating negligently in the middle and said truck tially of as instead middle of said street, to the left of the pos- Avenue as of said Grand near the city. an ordinance of said violation-of sible, pleaded general con- denial, a The answer, besides part tributory negligence the deceased walk- on paying without immediately truck ing in front of said going. a Holland was John she was to where attention negligently alleged, party petition, it was who, her to force deceased as near automobile drove his position exposed middle of the in an to stand the street over to cross able and before she safety, and killed over run she was a attain A demurrer of defendant Mederacke. Sup Mo. — MISSOURI, OF COURT y. Mederacke. presum- Holland, as to defendant sustained evidence was ably ground it was not shown that he was which ran so near the de- of said automobile the owner ceased. Jo- deceased, that the

The evidence tended show died the widow of John Smith, hanna Smith, years That after she, she killed. about two before support her minor' the sole chil- widowhood, her plaintiffs in Smith, and Mabel dren, Frank Smith years age and Mabel Frank about nine years two older when died, their father eleven when death, At and before their mother killed. Open employed Louis, Air School St. mother was dining room. She worked in the kitchen and where she in a flat on the second floor little lived with her children Broadway. cigar She was 4049 North a store at thirty-five years of her death. earned old at the time She having day, pay been for her last $52 about two dollars morning for went to the school month. She between three and four relieved and was breakfast, go could home and devote her afternoon, always well and She was her own household. time to hard-working, strong, woman, industrious and was everything steadily regularly. She did worked sewing. washing including At children, her completed one and Mabel had time of death high years Frank was in work, school one-half attending Open grade Air School. His school, right, not all the trial was but he the time of health át Open discharged Air School. from been had May returning 1920, from On the afternoon Open home, direction of her Air she School car traveled north to Mar- Avenue boarded Grand point, to continue her nearest transfer Street, ket ran north on Grand journey The cars Ave- homeward. just Avenue, a viaduct on Grand south There was nue. Street, Market railroad with intersection its yards. be- instead tracks railroad, VoL y.

Smith Mederacke. ing located the center of they viaduct, places at other in the street, were located next to the bridge sidewalks on each side of the and about four bridge, feet on the curbs the distance between bridge approach two tracks on the seven- eight teen converged feet and inches. But the tracks leaving bridge approach, again after so as to run happened near the center of the street. The accident regular crossing at the over Grand Avenue on the north approach of the usually where the street cars viaduct, stopped discharge passengers to receive and for Market point, Street. At this the street-car tracks had not yet converged to the center of Avenue, Grand but were still about four crossing, feet from the curb. At this thirty-six the street was feet and five inches wide from curb to curb. The rails of the street-car tracks were roadway, flat and mortised into the so as to afford but space little obstruction for the use of the track occupied by them next to the curb other vehicles, crossing busy not used the street cars. The awas crossing. stopped "Whenthe Grand Avenue car the de- persons alighted. ceased with a number of other She got off at the front end of the car and walked around in go stopping front of the car to west towards the usual passengers on the west side of Grand Avenue, who to take desired the east-bound cars Market Street. going There were a number of automobiles south on the west side of Grand Avenue at the and she time, halted after the center of the street few feet, wait- ing for a chance to cross over to the west side. ofOne apparently suddenly said automobiles moved towards standing, step where she which caused her to back avoiding the east. thus towards While this au- tomobile she was run over the driver of the truck of approached the defendant, Mederacke, from the plaintiffs’ south. The evidence tended to show, she of a half a foot and or two feet west of the center when she run Avenue, Grand was the left front wheel said said truck, truck had been driven MISSOURI, OF COURT v. Mederacke. going south over viaduct and was north.

from the eight going miles an hour, It about when killed the was Shortly alighted after the deceased from the deceased. proceeded the street car had collision, car before the street journey there no vehicles or other north, on its prevent driver to from obstructions truck possible” driving or near to the east “as driving instead of where he Avenue of Grand partly west the center of 'said center and struck and killed the deceased. where he also tended to show that Plaintiffs’ evidence stop to before the col- made no effort truck driver nothing vision; to obstruct his that there lision; or of the truck was vacant that the street turned; empty, truck driver of the could have that the stopped have been in five feet; truck could that the pulled away car had accident, before the empty; that there was no the track cupying automobile oc- car track on the east the street side of the not blow or the driver did a horn shout street; warning to deceased. Michael E. Ehrenreich,

The testified for chauffeur, accident occurred between 2:30' and defendant: traveling He Grand Ave three o’clock. across eight Bridge six an about miles and as- 'nue hour, approached go Street “there were machines he Market ing and there were machines cut south, north me my right and cut me off turn off the back —and my turning right again, ing my I left and lady stepping of on it, I seen out—kind came near somebody’s maybe get out machine’s side, tried to (way) south, it, and as soon seen that came I eight maybe I between six feet when was about really stepped when I first had back, her. She noticed put emergency on, All brake seen her. didI my stepped the truck with and turned on the foot-brake lady and knocked left and the fender struck hand, her.” front went over When wheel down, stopped, inches from about two it was Yol.

Smith Mederacke. body of a street car that afterwards came lady stepped side. track on the east When in front only away. the truck was five or six feet truck, stop tried to the truck and After he turned the wheel yards. right it ran two or three to the driving he was When looking straight he Market Street was towards crossing just bridge, and as he was be ahead, Market a car came from Street, fore he reached behind nothing of him. There and cut front was he could stop have done that he did not do the truck. The left passed body. entirely her front over Cross-exam wheel experienced an made He driver. He ination: trips many and Market Avenue Street, Grand always busy a comer. The cars were found it con had discharging passengers, stantly stopping there and crossing passengers constantly the street. were He prior to the accident. He familiar with that saw no going until after the when accident, car north street up. he first Mrs. Smith, car came When saw street in the middle of the street. She was like she looked people track. There were other street-car just walking first saw Mrs. Smith street. He appeared stepping him, It Mrs. back. she was just facing at that instant he northwest, Smith was away six feet not more than her. She was struck might six have been less than feet. her, he first saw standing before she took the there had not seen He £ £ driving pretty coming step. south the machines He saw proximity each other. He They close were in fast. ’’ crossing people would have to these who knew that woman came close to stop, machine if a and knew that back. That is stopped to draw have she would had step he would do the way back, do—he would he would thing said he did not did. He have Mrs. Smith same step one saw her take He his horn. time to blow passed bridge him on the back. The automobile yards, thirty the scene of twenty back to twelve Smith ten feet Mrs. he struck That accident. OF MISSOURI, SUPREME COURT Smith Mederacke. regular south of the and east of the cross-walk, center approached At the time of Grand Avenue. he the scene right. there was no machine accident, There car “Q. there. Mr. at the Ehrenreich, you up step time drove saw Mrs. Smith hack into your path there machine, was machine to the you? A. Not that I know of. Q. Was there anything your right-hand between machine and the curb? A. Not that I know of.” “ Right- introduced in evidence the city, provided Curb said which hand Ordinance” except “A vehicle, follows: a vehicle possi- shall as near the ahead, ’’ ble. regained ac- Mrs. never after Smith consciousness hospital. and died as soon as she reached the cident, Among gave other the court instructions, the fol- lowing plaintiff: for jury, you court

“1. The instructs the that if be- lieve and find the evidence this case that on or May, day of the 29th Mrs. about Johanna 1920, Smith, was the natural mother of Frank deceased, now Smith Mabel and that said Frank Smith, and Smith and Mabel ages said time minor children Smith were at years years respectively, and thirteen and eleven that of said children and husband of said the father Johanna prior leaving deceased, was said date said Jo- a and that said widow, hanna Smith Johanna Smith employed wages upon prior to said date and and was supporting maintaining and her said minor children earnings, that said Johanna on Smith was and upon May, passenger day a about said 29th approaching Avenue car north-bound Grand the inter- with of Grand Avenue Market Street and that section open public city streets both of said streets you if time; at the and further Louis, (cid:127)of Missouri, St. and find from the street car believe .evidence passenger stopped upon said Johanna Smith purpose Market Street for the side of south Vol.

Smith v. Mederacke. allowing passengers to dismount at said intersection, alighted and that said Johanna Smith therefrom at said alighting place, after and that undertook to cross by walking from the east side to the west side of said upon and that while she was Avenue, Grand crossing act she was run in the struck truck of defendant Richard the automobile Mederacke thereupon knocked to the street and killed; you find from if believe and the evidence further operated being at the time said driven truck employ of defendant a chauffeur for and Richard operating chauffeur said Mederacke, scope employment said at the time; your if and find from the further believe evidence immediately preceding that at time of and the col- and the lision said truck deceased Johanna between operated being you truck was find, the said Smith, northwardly over said Avenue near center Grand kept by was not and that said truck thereof, near the hand curb on said driver thereof as Grand possible, in it was not then the act Avenue and that you in that if ahead, event, a vehicle then, operate any, if said driver to said failure, so find, possible under those truck you so was a of the find, if violation ordi- circumstances, city in St. read Louis, Missouri, evidence; nance of you and find from the and if further believe evidence said between the truck and said Jo- that collision directly proximately and hanna Smith, deceased, any, if ordinance, violation of said and caused such exercising at all times that said Smith was said Johanna safety; ordinary in that her own and then, event, care for you plaintiff is entitled if and to re- believe, find your you in in and will find verdict favor cover this case, plaintiff against Mederacke. Richard of the and defendant jury if, “3. under the The court instructs you this case, in evidence the other instructions and you plaintiffs, your of the should in favor find verdict your damages inwill, sum as will assess MISSOURI, OF COURT Mederacke. Smith V. compensate fairly justly opinion, judgment them and injury pecuniary if necessary and losses, for all proximately resulting any, directly to them from Smith; the whole said Johanna mother, the death of their your should not event however, verdict, amount ten thousand dollars.” the sum of exceed plaintiff given Other instructions were assigned as hut no error is defendant, also for the any given except refused, or as to other instruction, above set forth. those jury returned a verdict for the against judgment entered

sum of on which $10,000, appealed duly said from which he Mederacke, defendant to this court. proximate

I. It is said that the cause of the death negligence, any, of Mrs. Smith was not the of the running driver but it was down, stepping „ act of Mrs. herself in back ° , , Proximate passed having of his truck after once front cause. support in front him. of this In contention, 160 N. l. c. In cited. Baker, Switzer W. driving driver of the automobile was not case, the wrong nor into a crowded cross street, side expect pedestrian ing, to turn no reason had passed having him. Here back after once front of pedestrians crossing were crowded with street and chauffeur was on automobiles and the defendant’s wrong required him and due care side of the irregular anticipate or less there be more would pedestrians in both and vehicles avoid run movements ning run over others. Furthermore, impeding progress of the de -others endeavoring street, in to cross the and defend ceased injured right in a had a ant’s servant her while right no to be. We rule this be and where he had point appellant. against the “Right-hand objected, Curb

II. It that the also is application no introduced in has Ordinance,” evidence, Vol. 302J

Smith V. Mederacke. pedestrians passed for was not street, benefit, persons but for the benefit of in right-hand vehicles traveling upon the street. Stack v. by Divi- decision Baking 223 W. 89, Co., S. support con- of this cited court,

sion of this is Two also was whether said ordinance case, In that tention. street pedestrians protection on the for the intended question there The collision the court. was not before wagon. It a baker’s an automobile was between page says inten- at 94: “The case, court true, the keep well requirement cause vehicles to tion of ap- other vehicles so that the street to proaching side of pass have without room the rear would nothing crossing said left side.” But opinion for effect that it not intended the protection to the upon crossing pedestrians the street. judicial notice fact that This court will take railways generally located of street are tracks all cities center of the streets St. Louis and other crossings stop on the street cars State; passengers taking purpose letting for on and off center from the sidewalk to the must cross to and travel. If vehicles line street of vehicle across pos- always right-hand travel.along the near as endanger they passengers sible, will interfere with and especially getting getting off cars, and off street much the street less cars, sidewalks, they promiscuously center than travel on or any or on side of the street. In it is clear this enough, that the defendant have the chauffeur of could easily obeyed ordinance and driven near although occupied on the side of the the tracks of the street there cars, because no car or other kind of a vehicle on such tracks prevented doing. judgment, him from so In said our passed pedestrians, ordinance for benefit of they vehicles, would know where to watch out persons traveling well as for drivers and in vehicles the street. SUPREME COURT OF MISSOURI,

Smith v. Mecleracke. suggestion apply Tlie that the not ordinance did part happened, injury the of the street where the because the street-car side tracks were next to the each curb on required and the “off driver would have been to drive again” and on street tenable. avoid Street cars, is right cars have no exclusive to the use the street public right lias a to and use and does drive tracks case absence cars, and this there was no street car on defendant’s the tracks while bridge only crossing (which chauffeur was was the place the street), tracks were on the sides of the along none came until after the accident. on The tracks bridge approach with the broad, and flat surface that no there would little or driving obstruction in other vehicles thereon. Indeed, street car tracks were so constructed as to invite on travel portion occupied by of the street such tracks. point against appellant. We rule this ap- III. It is also contended learned counsel for pellant plaintiffs’ that instruction er- numbered roneoils) required because it un the chauffeur operate der said ordinance to “said possible,” near the hand curb as time unless the accident he “in the act of a vehicle ’’ ahead; was decided said case Stack Gen Baking supra, eral Co., 223 S. 89,W. that said ordinance given could not be a literal construction, and meant keep right-hand must vehicles as near the curb as rea sonably practically possible, or and that in a whether given case the driver did his vehicle as near right-hand practically reasonably possible, or un question der all the circumstances of the jury. We think the decision referred to announced proper construing rule for ordinance. said But, this case, the defendant’s evidence shows that there no vehicle ahead of the chauffeur defendant’s right-hand on the going side of Grand Avenue north, but, as he himself admitted testified for there defendant Vol.

Smith v. Mederacke. prevented him from whatever were no circumstances driving right-hand and as side the street possible. practically possible, pretends that chauffeur The vehicle which the path driv- any way with in interfered crossed his ing, or him front cut in of was an which across automobile place yards thirty bridge, twenty from or the back Olathe happened. shown And not where the accident it is driving any way prevented in him this automobile point even at on the street next to the curb the car'track certainly it in where crossed front of him. It did acci- of afterwards, nor when he was near the the In evidence shows ease, dent. the defendant’s own that said ordinance violated omitting in therefore the error if in said instruction “reasonably” “practically” the word word before the “possible” in in said was harmless error. It instruction, way prejudiced rights no defendant. the point against appellant.

We must rule this the objected IV. instruction 3 Defendant’s numbered is ground general to the that it limit is too and does not pecuniary recovery the amount of the the loss suffered to by period during the the of minority. Railroad, The ease of Goss v. damage App. 623, support 50 Mo. is cited in of this proposition. In that case, the general than in case the the before in us, was more damages to the the financial of restricted loss jury plaintiff, but the as in this were told to allow damages jury plaintiff “may fair as deem just in under the evidence with case reference necessary injury resulting to her from the of death This case her father.” was afterwards overruled Appeals Haymaker & Court of learned case of App. v. & Mo. Son, Crookshanks Adams where 585, per says: exception court, J., “Defendants took Ellison instruction, plaintiffs’ giving relating first objection damages. urged is it measure MISSOURI, OF COURT y. Mederacke. thereby jury with- general left terms, too its is properly limit guide, speaking, without more or, out a damage them to be considered as to the causes general, estimating the instruction is the amount. While particularizes the elements while it in nowise as to and damage yet proper enough what it considered, is Being defend- it states and directs. devolved so, might possibly limiting ants ask an instruction what jury. rule announced be its result with is This Supreme Browning v. recent Court case Railroad, 124 Mo. 55. The Schaub Railroad, cases of 106 Mo. McGowan 109 Mo. 93, Co., 531, v. Ore Mo. Railroad, were followed App. of Goss v. cases Carpenter App. 623, and 53 Mo. un- McDavitt, ruling der the over- referred must be considered to, Judge pronouncement ruled.” The above Ellison good generality law. The mere the an instruction on good damages, goes, not measure of if it is as far it is remedy party complaining error, reversible but the of the express proper containing to ask an qualifications. limitations or plaintiffs

Whether these to recover for entitled pecuniary majority, loss after their heed sustained, we not determine not because the defendant did request any ages. plaintiffs’ limiting instruction so dam- given

The instruction this case was limited damage necessary pecuniary sus-' would tain the death of their mother. It did not authorize them damage to recover for element of for or time they damages, were not entitled to recover but strictly recovery legal their limited to their and loss, legal definitely defendant desired their to be more loss jury, requested detailed he should have de- more finite and detailed instructions on the measure dam- ages. point against appellant. We must rule this As

Y. to the amount of the The verdict. verdict was plaintiffs. for ten thousand for Their dollars both the dead, support. sole Their mother father was 557 1923. Vol. OCTOBER TERM, Smith Mederacke. boy girl The thirteen. eleven and the young oniy thirty-five mother was a woman

exessive strong age&emdash;healthy and years and’able support She children. her willing herself and to work per Open employed Air School $52 was then regularly. But it was which she received month, spent money children, she eained furnished pecuniary home she but the them, benefit physical training care moral the mental and to them, were also them, bestow mother, as a would, plaintiffs. Especially valuable pecuniary -value to the standpoint pecuniary were the life mother’s from a good boy appears not to been in who have services age children, and condition of In health. view of jury .indicates sum we not think the awarded do fairly they and the evidence. consider did law fixing it. verdict. cannot disturb "We amount judgment Finding below record, error in the no Lindsay, ordered. con- It is G., should affirmed. curs. CURIAM:&emdash;The opinion foregoing PER Small, All adopted by en Banc. Court in Division

C., isOne, dis- except Graves, J., concur, Woodson, G. J., sent. 3, 38; Cyc. 1, 26 2 and Motor 28 Headnotes and 3: Vehicles:

Cyc. Appeal Error, Headnote 3013. 4: J. sec. 37. Hea'dnote C. Cyc. Peath, 235. Trial, J. sec. 5: 6: 17 C. Headnote

Case Details

Case Name: Smith Ex Rel. Roth v. Mederacke

Court Name: Supreme Court of Missouri

Date Published: Feb 11, 1924

Citation: 259 S.W. 83

Court Abbreviation: Mo.