Opinion
No. 42590.
December 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Louis E. Miller, Miller Landau and B. Sherman Landau, all of St. Louis, for appellant.
Moser, Marsalek, Carpenter, Cleary Carter, Julian C. Jaeckel, Charles F. Hamilton and Wm. H. Allen, all of St. Louis, for respondent.
Linda Kaye Scaggs, a minor, by Frances Scaggs, her mother and natural guardian, filed this suit against Ruth Uetrecht to recover damages for personal injuries alleged to have been sustained as a result of being struck by a car driven by Ruth Uetrecht. A trial resulted in a verdict for the defendant and plaintiff appealed.
The amount ($34,390) sued for vests this court with appellate jurisdiction.
Plaintiff, a child 5 years old, lived with her parents at 7928 Church Road in the City of St. Louis, Missouri. About 1:30 o'clock on the afternoon of June 12, 1950, she and other children were playing near the home when plaintiff's mother returned in a car from a shopping trip to a nearby store. The car was driven by a brother of plaintiff's mother. It was parked across the street from where plaintiff lived, about 12 feet south of an 11-foot driveway. When plaintiff and her three-year-old brother saw their mother and uncle, they ran across the street to meet them. The mother greeted the children and the uncle gave each of them a candy bar. The mother stood on the sidewalk and talked with her brother. The children went to the rear of the car and to the driveway; then they started to cross the street. The mother saw a truck approaching from the south and called to them to wait. The children did so; the truck passed and the mother turned and resumed her conversation with her brother. She then saw a car traveling north by her brother's car. She screamed and as she looked north, she saw plaintiff rolling from under the car. The defendant Uetrecht stopped her car about 70 feet north of the driveway where plaintiff was struck.
The evidence disclosed that Church Road is 26 feet in width from curb to curb. It is a north and south street. There were ten homes on the west side of the block and five on the east side. Plaintiff lived in the southernmost house on the east side and immediately south of the home was a vacant lot. There was a dispute in the evidence as to the number of cars parked in the block. Plaintiff offered evidence that there were no cars parked in the block south of plaintiff's home while defendant's evidence was that there were cars parked on both sides of the street at the scene of the accident.
The defendant testified that she drove north on Church Road at about 15 to 20 miles per hour. Her evidence as to when she saw plaintiff was rather indefinite. Note a portion of her evidence:
"Q. I believe you collided with a little girl, Linda Scaggs, the plaintiff in this case, is that correct? A. That is right.
"Q. And where was Linda Scaggs when you first saw her on that occasion? A. I just caught the image out of the corner of my eye. It couldn't have been very far, a few feet.
"Q. How far, what is your best estimate as to how far in front of your car she was when you first saw her? A. It couldn't have been more than six or seven feet."
Defendant testified she was looking straight ahead and saw no children until she saw plaintiff; that the left portion of her car struck plaintiff. The evidence of plaintiff's witnesses was that the front center of the car struck plaintiff. One of defendant's witnesses, when asked where plaintiff was when he saw her after the collision, answered as follows: "She was right in the middle of the grille and she was right up — her body was suspended right directly in the center of the front of the car." Defendant's testimony was that she did not sound any warning as she drove north on Church Road; that cars were parked on both sides of the street; that there was not room for two cars to pass between the parked cars and that she was driving about in the center of the street. Defendant further testified that she was well acquainted in the neighborhood and had driven on Church Road many times. The defendant on cross-examination was asked the following question: "There were a lot of children along Church Road, were there not?" An objection to this question was sustained. The plaintiff attempted to introduce evidence that about 15 small children lived in the block where plaintiff was injured. The trial court would not permit plaintiff to introduce the evidence. This was assigned as error. On cross-examination of the defendant, the following occurred:
"Q. (By Mr. Landau) Were you looking for children in particular on this occasion? A. No, sir.
"Q. As you were driving along, were you looking straight ahead, or were you looking to both sides? A. I was looking straight ahead.
"Q. You had driven over that street more than a hundred times before this occurrence took place, had you not? A. That is correct."
Plaintiff was permitted to show that there were signs along Church Road reading "Caution, Children." Plaintiff also introduced evidence that a number of children were playing in the yards and on the sidewalks along the street at the time she was injured.
The evidence as to the number of children living in the block where plaintiff was injured and as to defendant's awareness thereof was properly excluded on the ground that such evidence was too remote. A plaintiff is entitled to show all of the circumstances that have a direct bearing on the question of negligence. In this case, that there were signs reading "Caution, Children," the width of the street, the number of cars parked thereon, and the presence of children on the sidewalks, street, or in the vicinity of the street and any or all of the facts having a direct bearing on the question of whether defendant was negligent, was competent evidence. 65 C.J.S., Negligence, § 1(5),
Plaintiff submitted her case to the jury on three charges of negligence; excessive rate of speed, failure to warn, and failure to drive the automobile as close to the right-hand side of Church Road as practicable.
The defendant asked and the court gave the following instruction (No. 4) of which plaintiff complains: "The Court instructs the jury that if you find and believe from the evidence that on June 12, 1950, defendant was operating an automobile northwardly on Church avenue at a speed of approximately twenty (20) miles per hour, and if you further find that such speed was not excessive or dangerous under the circumstances then and there existing, and if you further find that defendant, at said time and place, was operating said automobile as close to the right hand side of the street as was practicable under all of the facts and circumstances in evidence, and if you further find that plaintiff ran out into the street from behind a parked automobile toward and into the path of defendant's automobile at a time when said automobile was in such close proximity as to make it impossible for defendant to prevent the accident by sounding a signal warning, then your verdict must be in favor of the defendant, Ruth Uetrecht."
Plaintiff says the instruction is erroneous because "it instructed the jury that defendant could not be chargeable with negligence in failing to take any precautionary action until she reached a point where action would no longer be effective." To this we agree. There was substantial evidence in the record that if the defendant had kept a proper lookout, she could have discovered plaintiff long before she did. The evidence showed that plaintiff was at the driveway to the rear of her uncle's car. It was a question for a jury to say whether defendant had a duty to warn plaintiff of the approach of defendant's car. The defendant testified she looked straight ahead and was not looking for children. A jury might well say that in the circumstances it was her duty to be on the lookout and to sound a timely warning. Note what this court said on the subject in Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, loc. cit. 938: "To have failed to see what could have been seen by proper observation in the exercise of the highest degree of care would have been as much negligence as not to have looked at all. Kaley v. Huntley, supra [333 Mo. 771, 63 S.W.2d 21]; Miller v. Williams, Mo.Sup., 76 S.W.2d 355. Osborn's clear view down the highway ahead of him enabled him to see the shoulders of the highway as well as the concrete pavement itself. To see one was to see both. It was his duty to keep a vigilant lookout both ahead and laterally ahead (Hornbuckle v. McCarty, 295 Mo. 162, 173, 243 S.W. 327, 25 A.L.R. 1508; Brown v. Toedebusch Transfer, Inc., 354 Mo. 611, 190 S.W.2d 239), so as to see anyone on the shoulders of the highway on each side, give timely warning, slacken speed, or turn aside upon the first appearance of danger." (Emphasis ours.)
We have quoted the above because we think it applies to the facts in the case now before us. The defendant was charged with failure to give timely warning. The instruction was too favorable to the defendant. The instruction told the jury that if plaintiff ran out into the street from behind a parked car into the path of defendant's car at a time when the car was so close that a warning could not have saved her, then a verdict should be returned for the defendant. Plaintiff did go into the street from behind a parked car, but the evidence was that she could have been seen by the defendant long before plaintiff stepped into the street. Plaintiff was, according to the evidence, at least 12 feet beyond the car. She was a child of 5 years of age. In the circumstances, a jury would have been justified in finding that there was a duty on the defendant to have sounded a warning before plaintiff began her journey across the street.
We shall comment on a number of other assignments of error since there is a likelihood that the same questions may be present on a retrial. One of the charges of negligence was that the defendant did not drive her car as close to the right-hand side of the street as was practicable. The street was 26 feet wide; if there were cars parked on both sides of the street, then, of course, anyone driving between the cars would be driving near the center. The defendant testified she drove in the center of the street. When plaintiff's mother was on the witness stand, she was asked on cross-examination where she would drive in such circumstances. That was objected to but the objection was overruled. We do not mean to say that ruling was reversible error, but we do say that it was immaterial where others have driven or might drive. A custom in such respects cannot change the law. It was for a jury to say under all the circumstances proven whether the defendant was negligent in this respect. Whether others were negligent when driving cars had nothing to do with the issues in this case.
Another question of dispute was whether plaintiff's evidence as to a custom of the public's crossing Church Road to reach a shopping district on Broadway, a block to the east of Church Road, should have been admitted. This evidence was tendered but refused admission on defendant's objection. The evidence showed that Church Road on the east side was two blocks long with no street crossing through, while on the west side, Thrush Avenue intersected Church Road but did not extend through to Broadway. Plaintiff offered to show that the residents on the west side of Church Road who want to shop on Broadway cross Church Road in the vicinity of plaintiff's home; that many people cross there. This evidence was offered on the theory that defendant, being well acquainted in the neighborhood, should have been on the alert for people crossing where plaintiff was struck. The defendant was asked if she knew of any custom of people crossing through to Broadway and she answered, "Yes, sir, they always do." On motion made by the defendant's counsel, the answer was stricken and the jury instructed to disregard it. On a retrial, the evidence should be admitted. It was a circumstance bearing on the question of whether the defendant should have sounded a warning. 60 C.J.S., Motor Vehicles, § 288(b), page 674.
For error in giving instruction No. 4, the judgment is reversed and the cause remanded for retrial.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
BOHLING and BARRETT, CC., concur.
All concur.