Plaintiff was struck and run over by an automobile owned by defendant, Thomas C. Eugas (hereinafter called the defendant), while it was being driven by his minor son along one of the public thoroughfares of the city of Cape Girardeau. This suit is to recover damages in the sum of $25,000 for the resulting personal injury.
Fountain Street in the city of Cape Girardeau runs north and south; the next street east of it and paralleling it is Lorimier Street; they are intersected by Independence Street, a paved street running east and west. The place where the collision occurred was on the south side of Independence Street, near the curb, and from 75 to 90 feet west of the west line of Lorimier Street. From Fountain Street east to Lorimier along Independence there is a pronounced descent in the grade. The witnesses in speaking of the rise from Lorimier Street west called it a hill.
One of the public schools of the city was located on the south side of Independence Street immediately east of its intersection with Fountain Street. About twelve o'clock noon on December 7, 1915, a number of children, variously estimated at from 25 to 75, who had been dismissed from this school for the dinner period, were going east on Independence Street between Fountain and *Page 680 Lorimer. Some of them were passing along the sidewalk and parkway on the south side of the street, among them, plaintiff, who was then eight years of age. He and a little girl, presumably of about the same age, were playing "tag." She was running east on the sidewalk, and he was running after her trying to touch her. When she was within about seventy-five feet of Lorimier Street she suddenly turned and ran diagonally across Independence Street, the plaintiff following her at a distance of nine or ten feet. He was struck by the automobile at some point between the curb and five or six feet north of it. The machine came from the west, it was being driven by defendant's fourteen-year-old son, Floyd Eugas, who was hauling some milk cans for his father to a railroad station.
According to plaintiff's evidence: The automobile came down the hill at the rate of from 25 to 30 miles an hour; just before it reached the point of the collision the driver turned his head and waved to some one with his left hand; the next instant the car swerved suddenly to the south, and after striking plaintiff skidded 50 or 60 feet. Prior to the collision the car did not slow down and no signal whatever was given of its approach. Some of his witnesses testified that plaintiff had gone out into the street but a step or two when he stopped and started back to the sidewalk, and that he was caught by the autobile suddenly turning in toward the curb. He himself testified that he was running after the little girl and some nine or ten feet from her "when she dodged out into the street right quick;" that he in following her had taken but one or two steps from the curb when he saw the car coming and got back into the gutter; that it looked to him like the car was going to hit the little girl, but it struck him instead.
According to defendant's evidence, the little girl and the plaintiff, following her, suddenly ran from the sidewalk out into the street right in front of the oncoming car; she barely escaped, but he, while still running after her, was struck. The driver testified that *Page 681 plaintiff "jumped right in front of the car." He also testified as follows:
"Q. Tell the jury whether or not he (plaintiff) was running until he was struck? A. He ran out in the street and saw me coming and he started back and he stopped and I hit him.
"Q. You say he stopped? A. Yes, he started to go back and he didn't have time to go back. . . .
"Q. Did she (the little girl) run in front of your car or not? A. Yes, sir.
"Q. Did you make any effort or not to turn the car to miss her? A. Yes, sir.
"Q. Which way did you turn it? A. I turned it to the right and no more than I turned it until he jumped in front of the car."
There were some trees in the parkway between the side walk and the traveled part of the street. The evidence tends to show that on account of these trees there was not an unobstructed view of the traveled part of the street west from where plaintiff left the sidewalk and went into the street until the curb was passed. For the same reason, no doubt, the driver of a car coming down the hill from the west on Independence Street would not have had a clear view of a pedestrian starting to cross the street east of him near Lorimier Street until the latter passed the parkway and out into the street.
An ordinance of the city of Cape Girardeau provided that no motor vehicle should be driven over any of the city's highways at a greater rate of speed than twelve miles an hour; it further provided that every person operating such a vehicle, upon approaching pedestrians upon the traveled part of any highway and not upon the sidewalk, and upon approaching an intersecting highway, should slow down and give a timely signal with bell, horn or other device. While there were some general averments in the petition as to the failure of the driver of the machine to exercise the degree of care required of him under the circumstances therein set forth, the violation of the several provisions of the ordinances was essentially the negligence counted upon. *Page 682
Contributory negligence was the defense pleaded.
The court gave for defendant, among others, the following instructions:
"2. The court instructs the jury that before plaintiff can recover in this case, the jury must find and believe from the evidence that Floyd Eugas, the driver of the automobile, saw Bruce Goodwin in the street or could have seen him and after seeing him he had a reasonably sufficient time to warn him of the approach of his automobile, or to stop, or both, in order to avoid striking him, and unless the jury so find your verdict will be for the defendant.
"4. The court instructs the jury that it is the duty of one crossing a city street to make reasonable use of all his senses in order that he may observe impending danger, and a failure to do so is negligence, and by such reasonable use means such as an ordinary prudent and careful person would use and would exercise under the like circumstances, and if the plaintiff in attempting to make the said crossing, either saw the automobile before it struck him, or by the exercise of ordinary care on his part might have seen it in time to have avoided the injury by the reasonable use of his senses, there can be no recovery.
"5. The court instructs the jury that every operator of an automobile has the right to assume and in the management of his car to act on that assumption, that every person whom he meets, or who crosses or attempts to pass or cross in front of his machine, will exercise ordinary care and caution according to the circumstances and will not negligently or recklessly expose himself to danger, but will make an attempt to avoid danger.
"Although you may believe from the evidence that defendant's minor son was, at the time and place of the injury, running the automobile at a greater rate of speed than twelve miles an hour, yet if you further believe from the evidence that the collision and injury was not the result of said excessive speed, but was the result of plaintiff's own negligence and carelessness in attempting *Page 683 to cross the street at said place, after he saw the auto approaching, and without heeding attempted to pass in front of the same and was thereby struck and injured, your finding and verdict should be for the defendant.
"6. . . . The driver of an auto, in the absence of any indication that a pedestrian who is crossing or about to cross a public street in front of such auto is unmindful of the danger attendant upon crossing in front thereof, has the right to assume and to expect that such pedestrian will stop, and will not step in front of the car when doing so will manifestly bring about a collision of the car, and, if acting on said assumption the auto driver does not discover the pedestrian's peril before it is too late, neither the driver nor the owner of the auto is liable for a collision and the subsequent injury.
"7. The jury are instructed that if plaintiff, Bruce Goodwin, when he started across the street had seen the defendant's auto coming toward the place where the injury occurred, and ran into the street chasing a playmate immediately in front of the approaching auto, that the driver turned his car to prevent striking his said playmate and in doing so unavoidably struck the plaintiff and injured him and if you so find from the evidence, then your verdict should be for defendant."
The verdict and judgment were for defendant and plaintiff appeals.
Appellant assigns as error the giving of each of the instructions hereinbefore set out.
I. Instruction No. 2 directed a verdict for defendant unless the driver of the automobile saw, or could have seen, the plaintiff in the street in sufficient time to have warned him, or stopped the car, and thereby avoided striking him. ItNegligent ignores the question of the driver's prior negligence.Speed. There was ample evidence from which the jury could have found that, even though the driver of the car did not have sufficient time in which to have averted a collision after he saw plaintiff, or by the exercise of the proper degree of *Page 684 care could have seen him, yet, the collision was the direct result of an excessive and negligent rate of speed. The giving of the instruction was error. [Abramowitz v. Railroad, 214 S.W. 119, 120.]
II. By Instruction No. 4 the court told the jury in effect that plaintiff was guilty of contributory negligence, barring a recovery, if he could have avoided the injury by such use of his senses "as an ordinary prudent and careful personChild: would use and would exercise under likeOrdinary circumstances." This was error. The law does notPrudence. permit a presumption that a boy eight years old is capable of exercising that prudence which would be expected and exacted of an adult. It merely requires of him the exercise of care commensurate with the intelligence, capacity and experience he is shown to possess. [Spillane v. Railroad,135 Mo. 414.]
III. There was no evidence in the case that justified the giving of an instruction of the character of the one embodied in the first paragraph of No. 5. Besides, in a general way it no doubt conveyed to the jury the idea that the law isContributory such that every other traveler on a highway must atNegligence. his peril keep out of the way of an automobile, and that the operators of those vehicles have the right to act on the assumption that he will do so. While on the contrary other travelers, including pedestrians, have the same right to the use of the traveled part of a street or highway as operators of motor vehicles, and it is incumbent upon each to regulate their own use by the observance of ordinary care and caution to avoid receiving injury, or inflicting injury upon the others. Ordinary care upon the part of the driver of an automobile, however, requires him at all times and under all circumstances to anticipate and expect the presence of others on the highway and to keep his machine always under control so as to avoid collision with them. [McKenna v. Lynch, 289 Mo. 16; Lauson v. Fond du Lac, 141 Wis. 57.] *Page 685
The latter part of the instruction is fairly subject to the criticism that it assumes that plaintiff, after he saw the automobile approaching, heedlessly attempted to pass in front of it.
IV. There was nothing in the evidence that warranted the giving of the quoted part of Instruction No. 6. Besides, it is misleading, because it ignored the real question inMisleading. the case, namely, whether the driver was proceeding at a negligent rate of speed.
V. Upon what theory Instruction No. 7 was given is not clear, whether on the view that the facts hypothecated therein excused defendant's driver of negligence, or whether they fastened contributory negligence as a matter of law upon plaintiff. It is manifest that the first is untenable, because there was abundant evidence from which the jury could have found that the predicament in which the operator of the car found himself, of having to strike plaintiff in order to avoid running over the little girl, was the direct result of one of the acts of negligence with which he was charged, namely, driving at an unlawful and excessive rate of speed.
With respect to the second possible view suggested by the instruction, it seems to impute fault to plaintiff in having chased his playmate immediately in front of the approaching automobile after he had seen it coming down the street, thereby voluntarily and carelessly putting her in peril, and for that reason, it in effect declares, he cannot complain of any injury which resulted to himself from the situation he so brought about. But the evidence on which the instruction was apparently based will not bear any such construction. The plaintiff did not compel or cause the little girl to leave the sidewalk and run into the street; so far as the evidence discloses, he had no reason even to anticipate that she would do so; she chose the direction in which they would run in their play; he merely followed; but he stopped and turned back before he reached the path in which he saw the car coming. *Page 686 Was he negligent in not anticipating that the automobile would suddenly turn in toward the curb where he was standing, or retreating to the walk? This question should have been submitted to the jury even if plaintiff had been an adult instead of an eight-year-old child.
For errors in the instructions the judgment is reversed and the cause remanded for another trial. Small, C., concurs; Brown,C., absent.