Cervillo v. Manhattan Oil Co.

This is a suit against the Manhattan Oil Company, its successor and one Henry Snapp, to recover damages for the death of plaintiff's minor son, Joe Ditta, who was run over by the truck of the defendant, Manhattan Oil Company, being operated at the time by its employee, Snapp. There was a verdict and judgment in favor of plaintiff in the sum of $5,365 and defendants have appealed.

The facts show that Joe Ditta nine years of age, was killed at the intersection of Pacific Street and Forest Avenue, in Kansas City; that Forest Avenue and Pacific Street are two public thoroughfares in said city; that Forest Avenue extends north and south and Pacific Street east and west; that Pacific Street does not extend directly across Forest Avenue to the east but where it enters from the west there is a jog about fifty-four feet to the north, at which place it extends to the east; that deceased was killed near the middle of the intersection of these two streets where Pacific Street enters Forest Avenue from the west; that between property lines Pacific Street is fifty feet in width; that Forest Avenue is sixty feet wide; that the paved portion of Pacific Street is thirty feet in width and the paved portion of Forest Avenue is twenty-six feet wide; that there is a manhole approximately in the center of the intersection; that the manhole is 13.2 feet east of the west curb line of Forest Avenue and fourteen feet south of the north curb line of Pacific Street; that Forest Avenue approaches Pacific Street from the north on an upward grade and at the intersection it is more nearly level.

About four o'clock P.M., of January 9, 1929, Snapp was driving the truck on Forest Avenue going south toward and over the intersection with Pacific Street. Joe Ditta and other children were on their ways home from a nearby school located to the north and east of said intersection. The children came from the east on Pacific Street and Joe Ditta, with others, crossed to the west side of Forest Avenue north to the intersection of Pacific Street as it enters Forest Avenue from the west. Joe Ditta and some of the children then crossed to the southwest corner of the intersection as they proceeded southwardly in the direction of their homes. Some of the children remained on the east side of Forest Avenue. There was snow on the ground and the street curbing was not plainly visible. The children were making and throwing snowballs. As the truck proceeded on over the intersection of Pacific Street going south it ran over deceased, who was about in the center of the intersection of the streets in question. Just prior to the collision and at that time the truck was moving at a rate of speed of not more than six or seven miles per hour and, while approaching the place of injury, could have been stopped within a distance of a very few feet. No signal was given by the driver as he approached, entered and crossed the intersection.

The main controversy at the trial was over the location of the boy at the time the truck was approaching and entering the intersection, his position and movements prior to and at the time the truck entered and crossed the intersection and whether the driver of the truck saw or could have seen deceased, in a position of peril, in time to have averted injuring him.

The evidence on behalf of plaintiff tends to show that deceased was standing in the middle of the intersection near the manhole, facing east when the truck was fifteen feet from him; that there was no horn sounded or signal given by the driver; that the truck moved straight toward the boy; that the right front wheel of the truck struck him and both wheels on the right side of the truck passed over his body.

The evidence of the defendants, taken in its most favorable light to them, is to the effect that the boy was not standing in the intersection and was not in front of the truck at any time while it was crossing the intersection but that, after the front end of the truck had passed the position of the boy fifteen feet away, he ran toward the west side of the truck with his hands lifted as it was crossing the intersection and approached very near the truck in front of the right rear wheel; that his feet slipped and he fell under it; that the driver of the truck was wholly unaware of deceased's proximity to the truck; that he did not and could not see him approaching, and did not know that deceased had been injured until he had driven some distance beyond.

The point urged by the defendants is that the trial court erred in refusing to grant a new trial on the ground of perjury or mistake committed by plaintiff's witnesses. In this connection the facts show that the Manhattan Oil Company carried liability insurance and that the insurance company, shortly after the casualty, sent an attorney and a skilled shorthand reporter to a school in the vicinity of the collision; that the attorney propounded the questions and the witnesses, who were children, made answers thereto and that the testimony was afterwards transcribed by the reporter. However, this testimony was never signed by the witnesses, nor was the plaintiff represented at the time of the taking of the testimony. The basis of this charge of error is founded on statements made by two of these witnesses, who testified for plaintiff. These witnesses at the trial testified to a state of facts directly contrary to and in conflict with their statements as contained in the transcript of their testimony made by the shorthand reporter. At the trial these witnesses testified to the effect that they saw the truck run over deceased, who was directly in front of it. But the transcript of their testimony taken by the insurance company shows that they stated at the time that they were examined at the school house that they did not see the happening.

One of the witnesses in question was William Kissgen. At the time of the collision he was fourteen years of age. He stated at the school examination, according to the transcript, that he did not see the accident; that he was told about it by another boy; that he did not know how it happened. During the trial he testified that he saw the right front wheel of the truck strike deceased, and to various other facts as to the location of the truck and the deceased. He was asked about the answers given by him at the school house and he said: "I told them what I am telling you." A number of the questions and answers contained in the transcript of the reporter were read to the witness and he denied that he had made the answers shown in the transcript. He denied practically every question which the transcript showed had been propounded and reported. He stated that the answers "were all wrong." He said, however, that he undertook to answer the questions truthfully while in the office of the principal of the school.

Another of these witnesses was Marion Bonura, who at the time of the trial, was twelve years of age and on the date of the collision ten years of age. The transcript of his testimony shows that he stated at the school house examination that he did not see the collision and did not know how it happened. But at the trial he testified that he heard a scream, turned around and saw the right front wheel of the truck run over deceased. He admitted that he had given some of the answers at the school house but denied most of them. He was asked: "Q. Why didn't you tell these folks at the Woodland School you saw the right front wheel strike Joe? A. I hadn't been thinking about it until I come down because it was quite awhile afterwards."

Defendants' evidence tends to show that the transcript properly reported the testimony of the children taken at the school house. While defendants urge that perjury or mistake was committed, the motion for a new trial was founded upon perjury. The question, therefore, is whether or not we are in a position to disagree with the trial court in holding that the verdict was not procured through perjury. We find nothing about the case, other than the usual conflict that often appears in cases of this kind between extra judicial statements of witnesses and their testimony at the trial, and are not justified in interfering with the trial court's ruling upon the matter. [Davis v. Quermann, 22 S.W.2d 58, 59; Scott v. St. Jos. Ry. L.H. P. Co., 168 Mo. App. 527, 530; Thompson v. Nugent Bros. Dry Goods Co., 17 S.W.2d 596, 597; State ex rel. v. Carmen, 41 S.W.2d 902, 904.]

It is insisted that the court erred in giving plaintiff's instruction No. 1. The instruction is lengthy, purports to cover the entire case, and directs a verdict. Among other matters it required a finding that the child was in imminent danger of being struck by or coming in contact with the truck; that the child was oblivious to his danger "or ignorant of the presence of said truck" and required a finding that" the driver of said truck saw, or by the exercise of the highest degree of care could have seen, said child so walking or running on said Forest Avenue, if you so find, approaching the point of collision and in a position of imminent peril from said truck, if you so find and believe he was in such position of imminent peril, in time thereafter, by the exercise of the highest degree of care on the part of the driver of said truck, and by means of appliances at hand, and with reasonable safety to said truck, contents and occupant thereof, to have sounded a signal or warning and warned said child, if so, or to have stopped said truck, or to have slackened the speed thereof, or to have changed the course thereof, and thereby averted the collision with said child, if so, and if you find that the driver carelessly and negligently failed to do any one or all of said acts to avert and avoid said collision, if you so find, and if you find that as a direct result of such negligence and carelessness, if any, said child was struck by, walked or ran into said truck, if so, and was knocked down and run over thereby and killed," with other required findings, then your verdict must be for plaintiff.

It is insisted that the instruction is broader than the petition; that it authorizes a recovery on the theory that the boy walked or ran into the side of the truck; that such a theory of liability was not pleaded in the petition; that the only theory of liability in the petition is that the boy was in front of the truck when it ran over him.

The petition first contains a general charge of negligence, that is, that the truck 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 son." Then follows certain specific charges of negligence, concluding with that stating negligence under the humanitarian rule. This last allegation of negligence is as follows:

"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 contact 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 slackened 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, 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."

The evidence of plaintiff all shows that deceased was standing in the middle of the street in front of the truck as it approached; that he was oblivious of his danger and that the driver of the truck, while approaching the point where the boy was standing, drove it directly at him and ran the front wheel of the truck over him. Of course, there was no evidence on the part of the plaintiff that deceased, while approaching the side of the truck, walked or ran into it and was injured by falling under the right rear wheel. However, the petition, in no place, alleges that deceased was in front of the truck at any time. The charge that the truck was permitted to be "directed at, run upon, into, against and over plaintiff's son," is most general. Evidently it was the intention of the pleader to make this charge as to the manner in which the truck ran over deceased general enough to take care of any variations that the evidence might take as to this matter. However that may be, the case was submitted solely upon the humanitarian rule and all other charges of negligence in the petition, outside of that based upon that theory, were abandoned and need not be considered. It is quite apparent from the charge of humanitarian negligence that plaintiff did not confine the position of her son to any specific location, but makes the allegation that he was in a position of peril and in danger of being struck by "or coming in contactwith" the truck. (Italics ours.) It means to us that it is quite apparent that the allegations of the petition were broad enough to submit a humanitarian case based upon the theory that deceased ran into the side of the truck. There is no question but that there was sufficient evidence for the jury's consideration to establish a case under the humanitarian doctrine upon the theory that the child was run over by coming to its side and falling under the right rear wheel thereof.

If the testimony of defendants' witnesses, Snapp and Russell, is to be believed the driver of the truck could not have seen deceased running toward the truck. But the jury was not bound to take the testimony of these witnesses as true and were at liberty to believe only that part of it as was favorable to plaintiff. The jury is not bound to believe the testimony of the witness, Snapp, that he looked a second time and saw deceased as he passed him, at the northwest corner of Pacific Street and Forest where Pacific Street enters Forest Avenue from the west. He testified in his deposition that he did not again look to the right after he saw deceased when the truck was thirty or forty feet north of where deceased was standing on the sidewalk at the northwest corner of the intersection; that after seeing deceased when his truck was at that point he looked to the left and did not thereafter notice him. However, there are many inferences to be drawn from other testimony that deceased was not standing upon the sidewalk at the northwest corner of the streets in question at the time the front end of the truck passed that point as was testified to by the driver of the truck.

The testimony of the witness, Josephine Ditta, shows that she and her sister, followed by deceased, crossed over Pacific Street to the south side thereof. She testified that her sister, Annie, was behind her and that deceased "was behind us." She testified: "Q. Now, Joe never went across the street (Pacific Street, south) did he? A. Yes. Q. He did? A. He was behind us." This shows that deceased got to the southwest corner of the intersection. This was also testified to by the witness, William Kissgen. He said that he and deceased went south on the east side of Forest; that deceased crossed over "on the southwest side," at which time the truck was aboutfifty feet away; that deceased "went back on the corner on the southwest side and went back on (toward) the east side" and that the truck ran over him in the street.

The jury could say from this testimony of the witnesses, Josephine Ditta and William Kissgen, that deceased went into the street from the southwest corner of the intersection. The evidence shows that he was struck near a manhole, which is 13.2 feet east of the west curb line of Forest Avenue extended across Pacific Street and about fifteen or sixteen feet north of the south curb line of Pacific Street extended eastwardly across Forest Avenue. In other words, in order to get to the place of the collision deceased must have gone northeasterly in a diagonal direction or otherwise and, of course, if this is trué, he must have been in plain sight of the driver of the truck, who was headed south, had he looked laterally and ahead, while deceased was proceeding "in a slow trot" as he approached the point of collision. The jury was at liberty to find from all of the testimony that deceased was either in front of the truck and was run over by the front right wheel of the truck, as well as the rear wheel, or, believing defendants' testimony that he ran in a trot toward the center of the truck for the purpose of attempting to board it for a ride, that he ran to the truck and slipped and was run over by the rear wheel only. Of course, the jury could say that it was the duty of the driver of the truck to have taken whatever measures there were at his command to stop the truck when he saw or should have seen deceased, who was a child but nine years of age, trotting toward the truck. [Livingston v. Ry.,170 Mo. 452; Holmes v. Rd., 207 Mo. 149; Llywelyn v. Lowe, 239 S.W. 535; Erxleben v. Kaster, 21 S.W.2d 195, 198; Carney v. Ry., 23 S.W.2d 993, 1001; Messer v. Gentry, 290 S.W. 1014, 1016.] We apprehend that no court would say that a driver of a truck, or other vehicle, seeing a child nine years of age trotting toward it, would be under no obligation to anticipate trouble and to take measures at his command to avoid it. As was said in Mann v. Ry., 100 S.W. 566, 567:

"The conduct of a boy twelve years old should not be measured by the standard of care applied to an adult, because the immaturity of youth ordinarily embraces, not only an imperfect knowledge of natural facts and laws and of the proper relation between cause and effect, but, when possessed of those elements necessary to the exercise of reasonable care, it still lacks the discretion, thoughtfulness and judgment presumed to be an attribute of the ordinarily prudent adult, and which may be said to come only with experience. Thoughtlessness, impulsiveness, and indifference to all but patent and imminent dangers are natural traits of childhood, and must be taken into account when we come to classify the conduct of the child."

As before stated, if there is testimony tending to show deceased left the southwest corner of the intersection when he went to the point in the street, where he was run over, then it makes no difference how many other witntesses testified, if they did, that he left the sidewalk or started toward the truck from some other place. We, therefore, are not concerned with the testimony of defendants' witness, Russell. However, this witness testified that he was not in a very good position to see what occurred; that his testimony was more or less a guess. It is true that this witness testified that the front end of the truck was south of the boy when the boy came trotting, in the middle of the street, toward and at right angles with it. But the witness testified that he first saw deceased when the boy was fifteen feet west of the truck and that the child was then trotting toward the middle of the truck and, according to this witness, the child was still at the middle of the truck when he got up to it.

It is different to see how the child, when he got up to the truck, could be at the middle thereof when he was in the same position in reference to the center of the truck when he was fifteen feet away and approaching in a slow trot. We think that, very probably, the jury, even under this witness' testimony, taking it in its most favorable light to plaintiff, could have found that the driver of the truck could have seen deceased running toward it, for the reason that, if, when deceased reached the truck he was at the middle thereof, the truck must have been considerably further north when deceased was fifteen feet therefrom. In other words, the truck must have covered several feet during the time that deceased covered the fifteen feet in question. The evidence shows that the truck was about twenty feet in length. There are many photographs of the truck introduced in evidence and, viewing these photographs, which were before the jury, it would appear that the driver of the truck was stationed about half way between the front and the middle of the truck. If this is true he was seated about five feet forward of where deceased ran into the truck. It is reasonable to suppose that the truck traveled more than five feet, going at the rate of six or seven miles per hour, while deceased was covering fifteen feet in a slow trot. If deceased was making over four of five miles per hour he was actually running and not in a slow trot. Therefore it is reasonable to say that the truck was traveling faster than deceased and was further than fifteen feet away from the point of collision when deceased started toward it. At one place in this witness' testimony he stated that the truck was "just entering Pacific Street" when deceased was fifteen feet away proceeding east in the middle of the street.

However, we think it is apparent from all of the testimony that the jury was justified in saying that the driver of the truck saw or could have seen deceased approaching it in a slow trot, in time to have stopped the truck, which under the evidence, could have been accomplished in less distance than four or five feet, for the reason that the driver of the truck stated that it would require only this amount of space if he did not put the brake on. The inference is plain that if he used the brake he could have stopped the truck in less distance or almost instantly.

Even if the driver of the truck did not have time to stop the truck, after he first saw or could have seen deceased running toward it, he, at least, could have sounded a warning. The Supreme Court in the case of Spindler v. Wells, 276 S.W. 377, 388, held that a warning should be given in some circumstances even when a person is aware of the approach of the vehicle that is about to strike him. The driver of the truck should have sounded a warning in order to have brought to the realization of deceased, who was but nine years of age, the danger of proceeding on toward the truck. The facts in this case disclose a situation where the rule of the highest or utmost degree of care should be applied with all its severity, as on the sidewalks on both sides of the street were many children and they were running back and forth across the street absorbed in play. The driver of the truck saw the situation and should have used a high degree of care, not only to keep his truck under control, but in looking for danger.

We think, however, that plaintiff's instruction No. 1 was erroneous in submitting to the jury the question of slackening the speed of the truck. It is left to mere speculation and guess whether this would have prevented deceased from coming in contact with and/or slipping under the truck in such a manner as to cause his death in the very way which happened in this instance. [See Schmidt v. Transit Co., 140 Mo. App. 182, 187.] Even if the speed of the truck had been slackened, no one could tell whether deceased would not have slipped a little bit more in advance of the rear wheel than he did, with the same consequences. Very probably this is also true of the submission of the failure to swerve the truck. We think it was proper to submit the question of obliviousness of deceased as to his danger, although he saw the truck coming and intended to catch a ride thereon. He was a child but nine years of age, and the jury could say that, lacking in discretion and judgment, he was ignorant of the full danger of running to the side of the truck intending to catch a ride, and that his youth would have been apparent to the driver had he looked. It was not error to submit the question of his obliviousness but it was error to submit his being ignorant of the presence of the truck in connection with submitting that he walked or ran into it. This suggested to the jury that there was evidence that deceased was ignorant of the presence of the truck but through some inadvertence ran into its side. The evidence relied upon by plaintiff in submitting that deceased ran to the side of the truck shows that he ran face forward intending to board it. There is no evidence or inference from the evidence that, as deceased ran toward the truck, he did not run face forward, and of course, he must have seen the truck before he ran to it.

Criticism is made of plaintiff's Instruction P-2. Defendants contend that this instruction is misleading because the concluding part thereof is equivalent to informing the jury that the negligence of deceased in placing himself in peril must not be considered as a defense in determining the rights of plaintiff under Instruction 1. It is unnecessary to set out this instruction. It is merely on the question of contributory negligence and concludes by stating that the contributory negligence of deceased, if any, "must not be regarded or considered by you as a defense in determining or considering the rights of plaintiff under instruction P-1 as given you herein." The instruction could be so worded as to meet the contention of defendants by striking out all of it after the word, "defence." While we do not intend to say that the instruction constitutes prejudicial error in the wording in which it was given, it would be better for plaintiff to redraft the instruction at another trial by omitting the words suggested.

We find no reversible error in plaintiff's Instruction 5, which submitted the measure of damages, alone. Appellants insist that it erroneously authorized the jury to take into consideration the expectancy of life of the plaintiff without proper limitations, authorized a recovery for funeral expenses, and intimated to the jury that it might return a verdict for the sum of $10,000. Defendants failed to request any modifying or other instruction on the measure of damages. The plaintiff was before the jury as a witness, her age was shown, and the jury was entitled to consider her expectancy of life and judge of it from observation. Stevens v. Kansas City Light Power Co., 200 Mo. App. 651, 208 S.W. 631, relied upon by appellants is not in point. The question there considered is different. There is evidence that plaintiff paid a part of the funeral bill. It was a proper subject for consideration. The instruction indicated that the verdict could not exceed the sum of $10,000, and that the court did not mean to instruct the jury to find for plaintiff in that or any other sum. Similar directions have at times been criticized and it has been held that the practice should be discontinued. [Bales v. K.C. Public Service Co., 40 S.W.2d 665, 669.] It is generally held that such direction does not constitute reversible error. In the present case the verdict was for about half of the maximum of recovery and it is not likely that defendants were prejudiced by the amount named in the instruction.

It is next insisted that the court terred in refusing to discharge the jury on account of the misconduct of counsel for plaintiff in asking a question designed to show that an insurance company was defending the case. The shorthand reporter, who took, prior to the trial, the statements of plaintiff's witnesses, was on the stand. She testified that she accompanied the attorney to the school where the witnesses were examined; that she took down the questions and answers and transcribed them. The transcript was identified and offered in evidence. On cross-examination by plaintiff's counsel she was asked various questions about the attorney who accompanied her, one of the questions propounded being: "Q. Don't you know, as a matter of fact, that L.S. Hoiles is employed by the Employers Assurance Corporation?" Objection was made and sustained. Defendants' counsel moved that the jury be discharged, whereupon, plaintiff's counsel said: "If your Honor please, Mr. Hoiles is an employee, and there isn't any controversy about it, of the Employers Assurance Company." The motion to discharge the jury was overruled.

The record discloses, by admission of counsel for defendants, that the defendant, Manhattan Oil Company, was insured and that Hoiles was the representative of the insurance company; that Clark, who went with Miss Arceneaux to the school house to take the testimony of the children, was an attorney for the insurance company. Neither Hoiles nor Clark were among defendants' attorneys at the trial. The record also shows, by inference, that Miss Arceneaux was paid by Hoiles, the representative of the insurance company, for her services. It is affirmatively shown that she sent her bill to Hoiles. It was therefore, proper to show his relationship with the insurance company. [See Snyder v. Elec. Mfg. Co., 284 Mo. 285; Jablonowsky v. Modern Cap Mfg. Co.,279 S.W. 89; Grindstaff v. Steel Co., 40 S.W.2d 702.]

We have examined the remainder of the assignments of error and have not found that any of them are of sufficient importance or of the quality to be designated prejudicial. They pertain to the instruction in evidence of parts of the deposition of defendant Snapp as admissions against interest; the exclusion of certain statements of Marion Bonura; to the privilege of cross-examination of one of plaintiff's witnesses; to the introduction of evidence of the photograph of the deceased boy; to the exclusion of the statement of one of defendants' witnesses that "the boy was apparently going to climb on the truck;" and that the verdict is excessive. We do not deem it necessary to enter a detailed discussion of these separate points.

On account of the error in the giving of plaintiff's instruction No. 1, the judgment is reversed and the cause remanded. Arnold, J., concurs; Trimble, P.J., concurs in the result.