My view is that the opinion written by BOYER, C., should be adopted as the opinion of the court and the judgment reversed and the cause remanded for a new trial, accordingly. Judge BLAND does not agree with the reason assigned in the opinion, but, in effect, concurs in the result reached since he is of the opinion that plaintiff's instruction No. 1 was erroneous in submitting the question of the claimed negligence of the truck driver in not "slackening the speed of the truck" when there is no evidence tending to show that such slackening of speed would have prevented or averted the tragedy in any way. Consequently, the case will have to be retried, and when it is, doubtless the criticisms leveled against the method of trial from any authoritative source will be carefully avoided or the ground of such criticism obviated.
There are a number of specifications of negligence in the petition, but, as pointed out in Judge BOYER'S opinion, the case was submitted on only one, the alleged violation of the humanitarian rule. The specifications not mentioned here are not such as affect in any way the question of whether the petition is broad enough to support *Page 1104 the charge of negligence in violating the humanitarian rule in the particular manner contained within the evidence adduced.
All the allegations of the petition which bear upon thepleaded violation of the humanitarian rule are as follows:
After alleging the status and relationship of the parties, the fact that the injured deceased was nine years of age, was on the public thoroughfare of Kansas City at and near the intersection of Forest Avenue with Pacific Street, the petition set up that Henry Snapp was an employee of defendant as a driver of one of its trucks; and that at said time and place "an automobile truck belonging to said defendant corporation, and being driven . . . in the business . . . of said defendant corporation, by said defendant Henry Snapp, as its . . . employee as aforesaid, and while engaged in the scope of his said employment, in a southerly direction on said Forest Avenue, was carelessly and negligently driven, operated and controlled, so that the same was caused and permitted to be directed at, run upon, into, against and over plaintiff's infant son."
That defendant was careless and negligent in that it provided a truck so constructed as to obstruct the view of said driver and prevented him from maintaining a vigilant lookout, and negligently ordered said driver to drive said truck in said dangerous condition; that he negligently operated it in that condition, well knowing he could not maintain a lookout; that "said defendants were further careless and negligent, in this, to-wit: that they negligently and carelessly failed to keep a vigilant lookout for plaintiff's infant son and others upon said streets; that they carelessly and negligently failed to operate the truck as close to the right hand side of the street as was practical; that they negligently and carelessly failed to exercise the highest degree of care in operating said automobile truck as required by the laws of the State of Missouri, so as not to injure another; that they carelessly and negligently failed to sound any signal or give any warning of an approach of said truck to plaintiff's deceased son;"
That "although said defendant corporation, and said defendant Henry Snapp, its agent, servant and employee saw, or by the exercise of due and prompt care on their part could have seen plaintiff's son in a position of peril and danger of being struck by or coming in contract with said automobile truck in time thereafter by the exercise of due care on the part of said defendants to have stopped said truck or slakened the speed thereof, or to have turned the same aside, and thereby diverted the course thereof, or to have sounded a signal or warning and thereby to have averted striking plaintiff's son, by the means at hand and with safety to said truck, contents and occupants thereof, *Page 1105 but they carelessly and negligently failed to do any and all of said things to avert and avoid said injuries to said plaintiff's son."
That "the negligence of both defendants as aforesaid at said time and place were gross and aggravating; that they concurred and cooperated jointly and also severally to cause and occasion fatal injuries to plaintiff's son, and directly and proximately caused thereby the death of said plaintiff's infant son, Joe Ditta; that by reason of the premises aforesaid, and of the facts, matters and things herein set forth, said plaintiff has been damaged, and said defendants have become and are indebted and liable to said plaintiff Rosie Cervillo in the sum of ten thousand ($10,000) dollars, as actual and exemplary damages, as in such cases made and provided by law, particularly section 4219, Revised Statutes of Missouri, 1929."
Defendants' answer was a general denial together with a plea — "that said injury and death was caused by the sole negligence of the said deceased, who, seeing and knowing of the presence of said defendants' truck, negligently undertook to mount the same or to get so close thereto as to cause his injury, all of which was without any negligence on the part of these defendants and without their knowledge."
No reply was filed, but, as the case was tried as if one were filed, this is of no moment.
Now, in all of the above allegations of the petition, where is there any room or reason for supposing that the situation of theparties at the time of the alleged violation of the humanitarian rule was any place other than where the petition placed them, namely, the boy in the street ahead or in front of the truck, which was going in a southerly direction on Forest Avenue, and the operator thereof driving so as to permit the truck "to bedirected at, run upon, into, against and over plaintiff's son" and carelessly "failed to keep a vigilant lookout for plaintiff's son" and negligently "failed to operate the truck as close to the right hand side of the street a was practical," and negligently "failed to exercise the highest degree of care in operating said automobile truck" and negligently "failed to sound any signal or give any warning of an approach of said truck to plaintiff's deceased son" and "although said defendant corporation, and said defendant Henry Snapp, its . . . employee, saw, or by the exercise of due and prompt care on their part could have seen plaintiff's son in a position of peril and danger of being struck by . . . said . . . truck, in time thereafter by the exercise of due care . . . to have stopped said truck, orslackened the speed thereof, or to have turned the same aside and thereby diverted the course thereof, or to have sounded asignal or warning and thereby . . . averted striking plaintiff's son . . . but . . . *Page 1106 negligently failed to do any and all of said things," etc.? (Italics mine.)
Reading the above, no one would ever suspect that what plaintiff would really claim in the evidence would be that the boy was at one side of the street and, as the truck was passing, he ran toward the side of the truck in an attempt to climb on and catch a ride. There is not an intimation of such an idea or situation anywhere in the petition. And the situation presented in the latter picture is so entirely different from that in the former, that, not only would new and entirely different proof be required, but the evidence would have to be of a peculiarlyspecific and definite character as to the driver's knowledge of what the boy's intention was, and as to the driver's opportunity to avert the tragedy after the boy's danger became, or should have been, apparent, before any case whatever could be presented under a violation of the humanitarian rule, in a situation where the circumstances were like those of the one just stated. One witness said the boy ran toward the side of the truck and put up his arms as if to climb on the truck. But when did the boy's intention become manifest? No one says; but the inference would be that the boy did not raise his arms, and thus disclose his intention, until he was close to the truck, and then he was not within the range of the driver's vision. That is the way it would naturally occur; for, in running, the boy would not raise his arms until he was close to where he expected to climb and where a raising of the arms would be necessary or of any avail. Even if it could be said that the driver must, in the midst of his manifold and primary duties to watch and observe everything ahead or in front of him, also keep an eye to the side of the street and observe the boy, still he is not required to have that omniscience which would reveal to him what a boy nine years of age intends, or will attempt, to do one instant from the next. It might be possible for a driver, under the circumstances here considered, to violate the humanitarian rule, but it would be because he had knowledge of what was about to occur; and nomere theory that he ought to have known or that it was his duty to be on the alert and ascertain the situation, will be sufficient to make a case under such circumstances.
But, without regard to this phase of the case, the more important feature is that the petition does not plead a violation of the humanitarian rule under those circumstances, but manifestly places the boy in the street in front of or ahead of the truck, at which point he was in a place of danger so long as the truck continued on its way toward him and he did not see his danger nor move out of the way. Under these circumstances, the duty of the driver is manifest and if he did not see or observe the danger it was his duty to do so; and *Page 1107 also he could obviate the danger in various ways. But, under the other situation, when did the boy come into a place of danger? And when would that become manifest to the driver or should have become so? Moreover, what could he do to avert it? Slowing up would not do it; swerving to one side would not; indeed it might cause the boy to miss his intended hold and fall on that account. The very fact that the petition charges that the driver negligently failed to swerve to one side shows that the pleaded charge necessarily put the boy in front of the truck and not coming toward it from the side intending to catch a ride.
The petition in this case clearly pleaded a violation of the humanitarian rule under the one situation so clearly expressed. The evidence attempted to present, and instruction No. 1 clearly submitted, a violation of the rule under an entirely different situation. It is well settled that this cannot be permitted.
Going back to the feature of whether the driver could see, or could have seen, the boy as he ran to the truck, it is said that the opinion errs in holding, in effect, that the jury were bound to believe defendants' witnesses Snapp and Russell when they said the driver could not see the boy as he ran toward the truck. But, there is no evidence that he did see him, nor there is any showing, under the situation discussed, that he was under anyduty to see him. Hence, it is not a question whether the jury were compelled to believe the two witnesses who say the driver did not see him, but the trouble is that there was an entireabsence of any evidence to show that the driver saw him or should have seen him. Judge BOYER'S opinion should be adopted as the opinion of the court, and the judgment should be reversed and the cause remanded.