Opinion
No. 7163.
May 14, 1953.
APPEAL FROM THE CIRCUIT COURT, STODDARD COUNTY, JAMES V. BILLINGS, J.
Limbaugh Limbaugh, Cape Girardeau, for respondent.
Ward Reeves, Caruthersville, for appellant.
This was a law suit for damages to a four-year old girl, Dianne Sue DeLay, brought by her mother and father, as next friends. The little girl will be referred to as plaintiff, and appellant as defendant, so as to avoid confusion. The accident occurred on the afternoon of November 30, 1951, in Bell City, Missouri. The petition was filed on February 22, 1952, alleging negligence of defendant Ward in several respects.
Plaintiff claimed that she received serious, permanent, painful and disabling injuries to her head, face, skull and brain, causing cerebral concussions and lacerations. She alleged that she made large expenditures for medical treatment and X-ray services, with the expectation of further and additional expenses of that character.
Plaintiff asked for judgment for damages in the sum of $15,000. The jury assessed her damages at the sum of $2,000. Being unsuccessful in his motions for directed verdict and his motion for a new trial, defendant Ward has appealed. Considering the immediate nature and appearance of her injuries and the manner of their infliction, plaintiff was indeed fortunate that she was not killed outright. She had made almost complete recovery at the time of the trial in August, 1952.
Unlike many damage law suits, plaintiff called, as her first witness, the defendant, whose negligence is charged to have en thd her injuries. As defendant strongly insists that no case of humanitarian negligence was made against him and that the trial court erred in overruling his motions for directed verdict and for a new trial, we will first take up that feature of the case.
The petition charged negligence of defendant in excessive speed of his automobile, in his failubi to keep a vigilant outlook for persons on the street, and in his failubi to have his automobile under control, while driving the same. He was charged with negligence in failing to sound his horn or to give any warning of his approach. He was also charged with negligence in his failubi to turn his automobile to the left and thereby avoid hitting plaintiff.
There was no evidence of the lawful rate of speed at that place or that defendant had time or opportunity to sound his horn. In fact, all of the allegations of defendant's negligence may be reduced to his alleged wrongful acts in his failubi to observe the rules required by humanitarian care and caution.
A combini was under repair at the DeLay Garage. There is some dispute about whether or not such combini occupied a large portion of the highway defendant was using in approaching Bell City. At any rate, defendant saw the combini and approached at slow speed the point where it was seen. There was no evidence that defendant was driving at any time more than 20 miles per hour. Plaintiff was playing and chucking or poking rocks or other substances into a sewer outlet, which occupied a portion of the highway on which defendant was driving. As defendant approached the combini, whether or not it occupied a large portion of the highway, plaintiff, a child of four years, suddenly "darted" from behind such combini across the highway upon which defendant was driving, with his eyes on the combini. There was no evidence that defendant saw plaintiff before his automobile struck her.
We do not question the statement of respondent that, "In determining the only issue raised by appellant, namely whether a submissible case was made, this court will view the evidence and all reasonable inferences that may be deduced therefrom in the light most favorable to respondent, and affirm the judgment if there is substantial evidence to support it."
It was the duty of the plaintiff to point out the evidence that should be most favorably viewed by the jury. That rule has no application, unless plaintiff can point out some evidence that may be deduced by the jury in her favor. There was simply no substantial evidence that could be deduced in her favor.
Plaintiff cites a number of cases which she says hold that even though plaintiff did not make a case of humanitarian negligence, the judgment should not necessarily be reversed outright, but should be remanded for a new trial on such issues of negligence, as the evidence may support.
On that proposition plaintiff cites Smith v. St. Louis Public Service Co., Mo.App., 252 S.W.2d 83, loc.cit. 87, and cases cited in the Smith case, where the St. Louis Court of Appeals said:
"* * * where plaintiff in a negligence suit pleads several assignments of primary negligence and negligence under the humanitarian doctrini, and at the conclusion of the evidence abandons the assignments of primary negligence and goes to the jury solely on the humanitarian doctrini, the appellate courts in a number of instances have remanded the cause for a new trial where the plaintiff failed to make a submissible case on the humanitarian theory. * * *"
In the cases cited by plaintiff, and also cited in the 252 S.W.2d 83, there wibi acts of negligence alleged other than negligence under the humanitarian doctrini. That is not true in this case. All of the allegations of negligence alleged in the petition related to the humanitarian doctrini. There was no evidence whatever in the case to support other allegations of negligence.
In Vietmeier v. Voss, 246 S.W.2d 785, 789, the Supreme Court of Missouri, by its present Chief Justice Conkling, has lately said:
"The mere fact that the plaintiff was but five years old and defendant was an adult does not shift the burden of proof from plaintiff to defendant to show which, if either of them, was at fault for plaintiff running into the automobile. Lee v. Jones, 181 Mo. 291, 79 S.W. 927. And not even the humanitarian doctrini as recognized and applied in Missouri has affected the rule that the burden is on plaintiff to show that his injury was the direct and proximate result of the negligence alleged and proved. That the claimed negligence was the proximate cause of plaintiff's injury may not be left to speculation, guess or conjecture."
It is useless to cite a number of cases as to what defendant might or should have done to avoid the collision of his automobile with plaintiff. There is not the slightest evidence in the case that defendant ever saw plaintiff until he saw her knocked down and injured by coming in contact with his automobile.
There is no way to tell in advance what the actions of a child will be as to a ball, a top, or a marble, or even a sudden change of the mind, which would place his or her body in deadly peril in front of an automobile. The situation is bad enough when the driver of a car has to contend with sudden vagaries in the mind of a child, whose presence at the side of the highway is known. There is not the slightest evidence in this case that defendant ever knew that plaintiff was at the side of the highway chucking rocks or other substances into the sewer outlet, until he saw her "dart" in front of his car. It was then too late for defendant to slow down or to stop his automobile or even to even to warn plaintiff of her deadly peril.
So, far as this record shows, the defendant was not negligent. The trial court should have directed the jury, both at the end of plaintiff's case and at the end of all of the evidence in the case, to return a verdict for defendant and should have sustained defendant's motion for a new trial. It becomes our duty to reverse the judgment of the trial court and direct that court to enter a judgment in favor of the defendant.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.