Hornbuckle v. McCarty , 295 Mo. 162 ( 1922 )

Plaintiffs by this action seek to recover damages for the death of their minor son, Beyrel, who was run over and killed by a motor truck, at the crossing of Fourth and Maple Streets, in Poplar Bluff, on the 12th day of June, 1920.

Fourth Street, also known as Broadway, ran north and south; Maple Street, east and west. The former approached the latter from the south on a rising grade, which reached its crest at the intersection. Maple Street from that point proceeded west on a descending grade. Fourth Street was forty feet wide, and Maple about twenty-five. Both streets were paved, and at the intersection of their median lines there was a traffic post. The crossing was in the business district of the city, and Fourth Street in particular was extensively used for pedestrain travel and traffic of all kinds.

Plaintiffs' son was seven years and eight months old. He was an intelligent boy, and in all respects normal and healthy. He had attended school; gone around town by himself, and had ridden in automobiles and knew about them.

The truck with which he collided was owned by defendant McCarty, who was engaged in bottling, distributing and shipping Coca Cola and other soft drinks. It was being driven by his employee, and now his co-defendant, Malugen. The driver's seat on the vehicle was in a cab just back of the motor. There were fenders over the front wheels, and extending back from each of these was a short running board, which served as a step for stepping from the roadway into the cab. Immediately back of the cab was the bed of the truck, which extended out beyond the sides of the cab some five or six inches and back over the rear wheels. On the occasion in question it was loaded with cases of Coca Cola; in the rear end there was also a barrel of the beverage, the entire load weighing about 2500 pounds. The truck was equipped with hard-rubber tires, but in running over a paved street at the rate of five or six miles an hour made considerable noise. The length of the vehicle was not shown, except that it was longer than the ordinary touring car. The distance from the short running board, or step, to the rear wheel was approximately six feet.

On the afternoon of the day heretofore mentioned, plaintiffs' son and another boy of about the same age were walking north across Maple Street. Their line of progress was coincident with that of the sidewalk on the left side of Fourth Street, or approximately so. Beyrel was ahead, and both were eating ice cream cones. On the opposite side of the street from them the truck driven by Malugen was proceeding north at the rate of from six to ten miles an hour. It turned at the traffic post, and headed west on the north side of Maple Street. At the time the truck was turning around the safety post the Hornbuckle boy had reached a point about half way across the street. He continued walking north, and the truck without slackening speed proceeded on west. Their lines of progress brought them together; the boy came into contact with the running board near the front of the truck on the left side, was thrown down, and the left rear wheel passed over his head, killing him instantly. After the truck had passed, the body of the little boy was lying with the head toward the west, about six feet west of the west line of Fourth Street, and seven and one-half or eight feet south of the north line of Maple. Prior to the collision the deceased seemed to be entirely oblivious of the truck and its movements. As he walked along going north he had his head turned and was looking to the west, and so continued until he came into contact with the machine. Besides Malugen there was another boy or man on the truck — in the rear on or near the barrel of Coca Cola. Just as the vehicle was turning around the traffic post to go west, the driver turned his head to the right and looked back over the load toward the man on the rear end and continued so to look until the collision. After the machine turned it proceeded along and near the curb on the north side of Maple Street. As the front end passed the west line of Fourth Street the deceased was walking north along that line and was about eight feet from the north line of Maple. There was sufficient space for the truck to have passed behind him instead of immediately in front of him. No horn was sounded or warning given, nor was the speed of the truck slackened until after the collision. The truck was not equipped with a horn, or if so, it was not working. With the load it had it could have been stopped within six feet, if moving at the rate of six miles per hour; and within from eight to ten feet, if going at the rate of eight or ten miles an hour.

The facts just narrated are those which the plaintiffs' evidence tended to establish. The essential conflicts introduced by defendants' evidence were, that both boys were running and that the deceased ran into the truck; that the driver was at all times looking ahead in the direction in which he was moving; and that the truck could not have been stopped within the space of from six to ten feet. Malugen, the driver, testified:

"I was driving the truck the day the boy got killed; remember making the turn at the corner of Fourth and Maple; I did not see the boy before I got to the crossing; when I first saw him he was on the south side of my truck, right at the side of the running board; the running board was short; he was within one or two feet of the car; I was going west; immediately when I saw him, I hollered at him to look out and throwed on the brakes, and the next thing I knew the truck run over him. He was right by the running board, the hood is about four or four and one-half feet, and the step was right back of the engine; he was about even with where I was sitting when I first saw him; I do not recall what I said to him; just a moment or two after I saw him, saw he was looking around the other way, I did that; he had his shoulder turned to me and I saw he didn't see the truck and I hollored at him and throwed on the brakes. I did that as soon as I could after I saw him. . . .

"I could not have stopped the truck after the boy walked into it in time to have prevented the hind wheel from running over him: I tried my best; throwed on my brakes, but the car was going down hill there; stopped the car some ten or fifteen feet from where it run over him."

The case submitted to the jury was based on humanitarian doctrine. No question is raised as to the sufficiency of the petition. The answer, after denying generally the allegations of the petition, alleged that the death of the deceased "came as a direct result of his own act in running against the moving truck being operated by defendants, and not on account of any carelessness on the part of defendants, or either of them."

The jury returned a verdict in favor of plaintiffs, assessing their damages at $10,000. From a judgment entered in accordance therewith defendants appeal.

In seeking a reversal of the judgment, appellants rely upon: (1) the refusal of the trial court to direct a verdict for them; (2) the giving of an instruction asked by plaintiffs and the refusal of others offered by defendants; and (3) excessiveness of the verdict.

I. Appellants contend that they were entitled to a directed verdict because it was shown that the death of plaintiffs' son "came as a direct result of his own act in running against the moving truck, . . . and not on account of any carelessness on the part of defendants." There was ample evidence to takeCase for the case to the jury on the question of the driver'sJury. negligence. As he turned the traffic post and headed west on Maple Street and before he reached the pedestrian crossing of Fourth Street over Maple, he could have seen, had he looked in the direction in which he was going, that the boy was approaching and about to enter the path of the truck. He would also have seen that the boy, from his continued progress, the direction in which he was looking and his general attitude, was wholly oblivious of the approach of the machine. With this situation plainly before him it was incumbent upon him to have warned the boy, or passed behind him, or to have stopped the truck. And one of these precautions he would doubtlessly have taken had he not had his face turned in the opposite direction and been looking back toward the rear of the truck, heedless of where he was going and of the obstacles or dangers that might be encountered in front of him.

The negligence, if any, of the deceased is not involved in the case. If, as the evidence tended to show, the driver of the truck in the exercise of ordinary care would have discovered the boy's perilous position and his obliviousness of such peril in time, by the exercise of ordinary diligence, to have avoided the collision, the driver's negligence and not the boy's walking (or running) against the machine was the juridical cause of the latter's death. [Aronson v. Ricker, 185 Mo. App. 528, 532, 533.]

II. The material portion of plaintiffs' principal instruction was as follows:

". . . if you find . . . that deceased was just before said collision walking north across Maple Street on the west side of Broadway, toward the course of the approach of,Obvious of and in imminent danger of being struck by saidPeril: Driver's automobile truck, and that said deceased was atKnowledge. said time oblivious to his own danger, or ignorant of the presence of defendant's truck, and that the driver of said truck saw, or by the exercise of ordinary care might have seen, the said deceased so walking north on said west side of Broadway, approaching the point of collision, and in a position of imminent peril from said truck, if you find and believe from the evidence he was in such a position of imminent peril, in time thereafter, by the exercise of ordinary care on his part, and by means of appliances at hand, and with reasonable safety to the occupants and contents of said truck, to have warned deceased, or to have stopped said truck, or to have changed the course thereof and thereby averted the collision with deceased, and negligently failed to do so, and that by reason and as a direct result thereof, deceased walked against said auto-truck, and was knocked down and run over thereby and killed," etc.

Appellants' criticism of the instruction is, that it did not require the jury to find that Malugen, the driver, "knew, or by the exercise of ordinary care could have known, that the deceased was in danger and was oblivious thereto." The instruction was technically defective in not requiring an express finding that the driver in the exercise of ordinary care would have seen that the deceased was oblivious of his peril. However, the fact that Malugen would have discovered the deceased's unawareness of his danger, had he but looked and observed him with any degree of care, stands conceded on the evidence. His obliviousness was apparent to the eyewitnesses who were in a position to see and note his actions and attitude. Malugen himself testified that when he finally saw the boy, at the running board an instant before the collision, "he was looking around the other way . . . and I saw he didn't see the truck." The omission, therefore, to require the jury to expressly find that the driver saw, or would have seen had he been exercising proper care, that the deceased was not conscious of the approach of the truck, was harmless.

The instruction is further criticized on the ground that it assumes that the deceased was walking. The language that gives color to this construction is the phrase, "so walking north on said west side of Broadway." But this should be read in connection with the preceding part of the instruction which explicitly required the jury to find "that deceased was . . . walking north across Maple Street on the west side of Broadway," etc. There is no merit in the contention.

Defendants by their instruction numbered 3 requested the court to instruct the jury as follows:

". . . if you find and believe from the evidence in this case that the deceased, Lemural Beyrel Hornbuckle, ran into the side of the truck operated by defendants after the front part thereof had passed that point, then youLooking cannot find for plaintiffs even though you may findLaterally that defendant, Malugen, was looking back or to one side and on that account did not see the deceased before he ran into his truck."

This instruction was asked on the theory that the duty of a driver of an automobile requires him to look in the direction in which he is going only and not behind nor to one side to see if anything happens after the front part of his machine has passed. Generally speaking that is true, but the driver must look not only straight ahead but laterally ahead. [Aronson v. Ricker, supra; Holmes v. Railroad, 207 Mo. 149, 163.] Had Malugen done that he would no doubt have discovered that a collision between the truck and the boy was imminent, before the front of his machine passed the line of the latter's progress — that it was highly probable that the truck would run against the boy, or the boy unwittingly against the truck. At least there was evidence tending to show such facts. The instruction ignored this essential phase of the case, and was therefore properly refused.

There are other assignments of error based on the refusal of instructions offered by defendants, but appellants do not press them. In any event they are in effect disposed of by what has already been said.

III. Was the award of $10,000 excessive? The expenses attending the injury and burial of the deceased were not shown. Plaintiffs' recoverable damages are limited therefore to the pecuniary value of their son's services during his minority, less the expense of supporting and educating him. An estimate of the value of the prospective services of a child, too young to have developed any particular talents or aptitudes, can be reached only on considerations of the most general character. In such case much must be left to the common sense and fairness of the jury. That the services of their son during his minority would be worth $10,000 to plaintiffs is, however, wholly improbable. Up to the age of fourteen his earnings would have been negligible. This is so not only because he would have had small earning capacity during that period of his minority, but because of the limitations imposed by the statute which prohibits children under fourteen years of age from being employed in practically all gainful occupations. [Laws 1921, p. 184.] The present value of his services during the remaining seven years, less the expense of his education and support, could not reasonably exceed the sum of $5000.

Accordingly the judgment is affirmed on the condition that plaintiffs within ten days from this date enter a remittitur of $5,000 as of the date of the judgment; otherwise, the judgment will be reversed and the cause remanded. Small, C., concurs;Brown, C., absent.