(252 S. W.)

FITZGERALD V. NORMAN. (No. 23072.)
(Supreme Court of Missouri, Division No. 1.
April 6, 1923. Motion for Rehear-
ing Overruled June 8, 1923.)

1. Municipal corporations 706 (6)-Defend-
ant's negligence in colliding with child on
street held for jury.

In an action for injuries to plaintiff child from being struck by defendant's automobile in the street, defendant's negligence held for the jury.

2. Municipal corporations 705 (3)-Failure of automobile driver to keep lookout for child is negligence,

There is other evidence that the vehicle was an ordinary two-horse wagon; that the horses faced the south and were hitched to the post mentioned. Appellant was driving north on Second street in a Ford touring car at a rate variously estimated at from 10 to 15 miles per hour. He was running from 3 to 6 feet from the curb on the east side of Second street. The child ran into the street from the west side. He was running when he stepped into the street. He ran, according to some of the evidence, almost or quite, directly east across the street. According to appellant he ran suddenly from behind the wagon and thence across the street. He was struck and knocked down by the automobile. At some time appellant swerved, his car somewhat to the left. There is evi- · dence that this did not occur until the moment of impact. The boy was picked up 3 or 4 feet from the east curb of the street at a point 30 or 322 feet south of Chestnut street. Appellant says he attempted to stop the car and did everything he could to save the child. There is evidence that ap pellant was 30 feet south of the point where the child entered the street when he did enter it. There is evidence which makes the distance less. Appellant testified he was running 10 miles per hour and saw the child Chas. F. Keller and Strop & Mayer, all when he ran into the street, and that the of St. Joseph, for appellant.

If an automobile driver, who struck a child on street in residence district, in the exercise of ordinary care could have seen the child in time to avert injury to him, it was negligence to fail to see him.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Waldomore Fitzgerald, a minor, by his next friend, Charles F. Keller, against J. L. Norman. Verdict for defendant, new trial granted, and defendant appeals. Affirmed.

child and automobile were running at about

Randolph & Randolph, of St. Joseph, for the same rate of speed. After striking the respondent.

JAMES T. BLAIR, J. Respondent, aged at the time four years and seven months, was struck by appellant's automobile and seriously injured. There was a verdict for defendant. The trial court granted a new trial on the ground that it had erroneously instructed the jury. This appeal followed.

Respondent lived with his mother and stepfather at 1720 North Second street in the city of St. Joseph. This number is between Linn street to the south and Chestnut street to the north, is on the west side of Second street, and the house is 50 or more feet south of Chestnut street. There is evidence tending to prove that the grade of Second street ascends gently from Linn to Chestnut. Second street is 70 feet wide between the property lines, and the paved roadway is 30 feet from curb to curb. Opposite the south side of respondent's home stands a hitching post which is 66% feet south of the south line of Chestnut street. The injury occurred about 5 p. m. on October 7, 1919, in broad daylight. The street was dry. There is evidence tending to show that a light spring wagon was standing on the west side of the street and that the single horse attached to it was hitched to the post already referred to, its head to the north and the wagon to the south; that the wagon was about 2 feet from the curb and 5 feet wide.

boy appellant's car ran a considerable distance farther before it was stopped. The street is a residence street at and near the place of injury. Appellant lives some 3 or 4 blocks away and was familiar with the street.

The petition counts on excessive speed, violation of a speed ordinance, and the humanitarian doctrine. With respect to this last it is charged appellant was negligent in failing (1) to stop, or (2) to lessen the speed, or (3) to change the course of the automobile after he saw or could have seen respondent in a position of peril of which he was unaware. Failure to sound a warning is also alleged as negligence.

The instruction which the court gave at appellant's instance, and the giving of which was ruled to require a new trial, reads as follows:

"The court instructs the jury that if you believe and find from the evidence that while defendant was driving along Second street,

* in the exercise of ordinary care, that is, such care as an ordinarily prudent person would ordinarily use under like or similar circumstances, that the plaintiff * ✦✦ came from behind a wagon and ran suddenly and unexpectedly in front of defendant's motor car, and placed himself in such a position that the defendant, by the exercise of ordinary care as above defined, could not after he saw the plaintiff stop his car or turn aside in time to avoid hitting the plaintiff, then plaintiff's injury was due to an unavoidable accident, and

For other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes,

your verdict, if you so find, should be for de- | 172 Mo. loc. cit. 686, 687, 72 S. W. 900; Ivy fendant."

Appellant contends: (1) This instruction is In no way erroneous; and (2) that there was no substantial evidence tending to prove negligence on his part. Respondent contends: (1) There was evidence to take the case to the jury; (2) the instruction set out is erroneous; and (3) that instruction C given for appellant is erroneous.

[1] I. There are several theories of the facts which are supported by substantial evidence. One is that defendant did not check his car, sound a warning, or attempt to avoid plaintiff by turning his car until the moment of impact. Appellant's daughter did not see the child in the street, but felt the shock when it was struck and was unable

v. Marx, 205 Ala. 60, 87 South. 813, 14 A. L. R. 1173; Babbitt on Motor Vehicles (2d 287, 288, 289; Huddy on Automobiles (6th Ed.) § 1261; Berry on Automobiles (3d Ed.) §§ Ed.) 8 332; David's Law of Automobiles, §§ 148, 154, 158; 2 R. C. L. 1186. The instruction ignored this principle.

The order sustaining the motion for new trial was right. It is affirmed, and the cause remanded.

All concur.

LAWHON v. ST. JOSEPH VETERINARY
LABORATORIES et al.
(No. 22704.)

fined.

22, 1923.)

A "servant" is a person who is subject to the control of his employer with respect to the manner in which the details of the work are to be performed.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Servant.] 2. Master and servant 284 (2)-Relation of master and servant held for jury.

to tell whether the shock or the swerving (Supreme Court of Missouri, in Banc. May of the car came first. She said they were "about together." There is evidence which authorizes the inference that the child left. Master and servant ~~~88(1)—“Servant” dethe curb at a point in plain view of appellant. A plat constructed from the figures given in the statement makes this too clear for dispute. The right-hand fender struck the child. Another foot and he would have reached a place of safety beyond the car. He ran, according to some evidence, directly across the street. There is evidence which authorizes the inference that he ran diagonally almost northeast. If the child was in appellant's view when he left the curb, when the conflict as to the character and position of the wagon at the curb and as to the distance appellant's automobile south of the point of injury when the child left the curb is considered, then he ran, on one theory, about 26 or 27 feet, and on another over 35 feet in the street before he was struck. This takes the point at which the boy was picked up as the place of injury. There is no testimony that he was knocked or carried any distance. There are other constructions of the evidence which might support respondent's case. On the one stated we are not ready to say that as a matter of law appellant could wait until the moment of impact to take measures for his safety. The case was for the jury.

was

[2] II. Instruction F is erroneous. The injury occurred in the street in a residence district. Pedestrians have rights in the street. It was the duty of the appellant to keep a lookout. There was evidence tending to prove that appellant, in the exercise of ordinary care, could have seen respondent in time to avert injury to him. In such circumstances it is negligence to fail to see. McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Turnbow v. Dunham, 272 Mo. loc. cit. 63, 64, 197 S. W. 103; Degan v. Jewell (Mo. Sup.) 239 S. W. 66; McQuade v. Suburban Ry. Co., 200 Mo. loc. cit. 158, 98 S. W. 552, and cases cited; Klockenbrink v. Ry.,

In an action for death of one killed while digging a sewer for defendant, evidence that an agent of defendant who was exercising supervisory control over its plant and premises was at all times present, giving directions with respect to the manner in which the work was to be done, and that these orders were complied with by deceased and his colaborer, held to warrant the inference that defendant had reserved the right to supervise the manner of executing the work in detail, making a case for the jury on the question whether deceased was

a servant.

3. Master and servant 292-Instruction on relation created by contract for digging sewer held erroneous.

In an action for the death of one killed while engaged in digging a sewer, an instruction that, if the jury found that deceased contracted and agreed to build the sewer as indicated by stakes set by defendant's engineer, the verdict must be for defendant, held erroneous in view of evidence that defendant had the right to direct the method and manner of performing the

work.

4. Master and servant 292-Instruction on relation of independent contractor held erroneous.

In an action for the death of one killed while

digging a sewer for defendant, an instruction that, if deceased contracted to do the work and he was an independent contractor, and there furnish all necessary labor for a stipulated sum, could be no recovery, held erroneous in view of evidence that defendant had the right to direct the method and manner of performing the work.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ance.

(252 S.W.)

5. Trial 253 (9)—Instruction on workman's | drained the laboratory and hogpens into a contributory negligence held erroneous as dis- nearby creek. In July, 1920, the management regarding evidence of vice principal's assur- decided to discontinue the use of that sewer and construct another connecting with one of the city's main sewers. The city sewer with which the connection was to be made ran east and west at or near the north line of

In an action for the death of one killed while digging a sewer for defendant, an instruction that, if deceased had had more experience in digging trenches than defendant's employees who were about the premises at the one of defendant's buildings. Some 4 or 5 time the work was being done, it devolved up-feet east of the northeast corner of the buildon him, and not them, to discover the earth ing there was a telephone pole, and the concaving in before the event happened, held erroneous as disregarding evidence that defendant through its vice principal promised deceased that it would watch the sides of the trenches and brace them if they showed any tendency or danger of caving.

6. Master and servant

231(2)-Experienced workman digging trench entitled to rely on assurance of vice principal of employer.

If defendant, through its vice principal, promised to watch the sides of a trench during the progress of the work, and brace them if they showed any tendency or danger of caving, deceased, notwithstanding he may have been an experienced workman, had a right to rely upon such assurance, and to continue at work in the trench unless and until the danger became so obvious and imminent that no ordinarily prudent person would have remained longer therein. 7. Witnesses

142-Where employé deceased, general manager of corporation employer incompetent to testify.

In an action against a corporation for the death of plaintiff's husband, caused by the caving in of a sewer in which he was working, the general manager of the corporation was incompetent to testify to the arrangements he made with deceased for digging the sewer for the reason that he was one of the original parties of the contract in issue and on trial.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

nection was to be made at a point immediately east of the pole. From that point the new sewer was to extend in a southwesterly direction a distance of 140 feet, passing along the east side of the building, and getting closer to it as it proceeded south. The incline on which the sewer pipe was to be laid was such that the south end was within 2 or 3 feet of the surface of the ground, while the north end was 13 feet below.

On July 26, 1920, Lawhon and one Hosford began the construction of the sewer. They commenced at the north end to dig the trench to receive the 18-inch tiles that would form the sewer pipe. As fast as they brought a sufficient length of trench to the necessary depth they laid a tile and then went forward with the excavation, throwing the dirt back over the tile that had been laid. The

tiles were 3 feet in length. On the second day, about noon, the construction had progressed to a point near the southeast corner of the building heretofore mentioned. At that time Lawhon was digging at the bottom of the trench, which was about 12 feet deep, and Hosford was just north of him, standing on the end of a tile, and throwing the dirt back. While they were so engaged large segments of earth broke loose and fell in

from the west wall of the excavation near

the building, completely covering Lawhon, and causing his death.

So far the facts are not in dispute. The Action by Lida J. Lawhon against the St. terms of the contracts under which Lawhon Joseph Veterinary Laboratories and others. was employed is the matter sharply at isFrom a judgment for defendant, plaintiff ap-sue; if they were as plaintiff contends, the peals. Reversed and remanded.

relation of master and servant was created;

dependent contractor. The only evidence of

Eastin & McNeely, of St. Joseph, for ap- if as defendant contends, Lawhon was an inpellant. Randolph & Randolph, of St. Joseph, for fered by plaintiff with respect to this phase respondent.

RAGLAND, J. Plaintiff's husband, John D. Lawhon, while digging a ditch for a sewer on defendant's premises, was killed by the falling in of the earth from the sides of the ditch. She sues for damages accruing to her by reason of his death.

of the case was the testimony of Hosford. He testified that for a number of years he had worked with Lawhon, but not for him, and that his employment on defendant's premises in connection with the sewer was brought about by Lawhon merely telling him that a sewer was to be dug there. After stating that he and Lawhon went to defendant's grounds. to dig a sewer for it, he testifiled as follows with reference to the superintendence of the work:

Defendant, St. Joseph Veterinary Laboratories, hereinafter called the defendant, is a corporation, and at the times of the occurrences presently to be described was engaged "Q. Now, Mr. Hosford, just tell the court in the manufacture of hog cholera serum at and the jury where you started and were going St. Joseph, Mo., where it owned and operat- to dig that morning when you and Mr. Lawhon ed a plant for that purpose. In connection went there? Where did you start to digging? with the plant there was a sewer which A. We started just about 6 or 6% or 7 feet For other cases see same topic and KEY-NUMBER in all hey-Numbered Digests and indexes

"Q. That was the morning of what date? What day of the week? A. That was Monday morning, the 26th day of July.

A. We certainly did.

"Q. And during the following day, Tuesday, the 27th? A. We certainly did.

"Q. Was Mr. Holkenbrink there all during the 26th and the 27th? A. Yes, sir.

-I could not say exactly, because I never measured it myself, but we started over here about 6 or 7 feet east of the north end of their building, and then we were intending "Q. Then, Mr. Hosford, you may state whethto run in a wedge fashion and come across er or not you and Mr. Lawhon, the deceased, here, and we would have been, oh, I expect continued digging the sewer during that day? 3 or 4 feet from the building at the south end, and we had dug, and there was a space in here of about 20 or 22 feet, and I would not say positively which, where it would be about 12% or 13 feet to the bottom of the sewer, and we started over here in order to keep awaywell, we started here, and we dug once across there; and then Mr. Holkenbrink come, Bill, that gentleman sitting over there, and when he come up, he says, 'You ain't digging that where we want it,' or 'where I want it;' I don't know which way he did state that; and of course we quit, and he went over here about 2 or 21⁄2 feet further west, and he said, 'I want it right through here,' and he showed us, and Mr. Lawhon said then, he says, "The reason we are digging it there, we want to keep as far from the building and that pole as possible.'

"Q. Who was in charge of things around the plant there for the St. Joseph Laboratories Company? A. Mr. Bill Holkenbrink. I thought his name was Fred, but it is William.

"The Court: Who was in charge there, and who seemed to be conducting the plant? A. Mr. Holkenbrink.

"The Court: Mr. Will Holkenbrink? A. Yes, sir.

"The Court: Who had charge of this construction of this sewer here for the plant? A. Mr. Holkenbrink. I worked under his instructions, anyhow.

"Q. Who, if anybody, was giving directions there for the digging of that sewer for the St. Joseph Veterinary Laboratories Company that morning? A. Mr. Holkenbrink.

"Q. And what was he doing, if anything, with reference to the supervision of the work, and digging there? A. Him and Mr. Crane always laid down the tile, and also the cement, and always instructed me to put the level on to see that I had gotten them laid at the right slope, which I did, after he told me to. *

"Q. They were generally on the bank? A. Yes, sir.

r

"Q. Had they been during the course of that morning on thre bank? A. Yes, sir; they had been there most of the time. I never missed them at all. I never paid no attention to them at all.

"Q. They had been on the bank there the most of the forenoon? A. Yes, sir.

"Q. What were they doing up there on the bank, Mr. Hosford? What work were they doing, if anything? A. They would always let down the tile to us, and also the cement. They would put the rope through the tile, and they would let them down, and then I would takę the rope out and put them under the tile, and they would lift it up so I could shove them together and join them.

"Q. Which one of them, if either, was giving the directions with reference to the level and that sort? A. Mr. Holkenbrink; Will Holkenbrink.

"Q. Now, Mr. Hosford, had any bracing or

"Q. Which Mr. Holkenbrink? A. Bill, or material for bracing been offered to you or Mr. William, or whatever they call him.

"Q. Was it William? A. I don't know which

one.

"Q. It was the one known as Bill? A. Yes, sir.

"Q. Now, then, Mr. Hosford, what did Will say when he, as you have stated, directed you to come over and dig close to the plant, and directed Mr. Lawhon? A. You want me to explain that same thing over?

"Q. Yes; just go right ahead, now. A. When he come up, he says, 'You ain't digging it where I want it,' or 'we want it;' I don't know which way he did mention that; and of course we stopped, and he took us over here about 2 or 22 feet further west, and showed us right through there where he wanted it. Well, Mr. Lawhon made the remark, he says, 'We know'

"The Court: Go ahead, and tell what was said there, and done. A. He said, "The reason we started here, we wanted to keep as far away from that telephone pole and the building, for it might have a tendency to cave.'

"Q. Who was it said that, Mr. Holkenbrink? A. Mr. Lawhon; and Mr. Holkenbrink said, "We will' watch that, and, if it shows a tendency, or any danger of caving,' he says, 'we will brace it;' and so we went, of course we were constructing the work; he was the boss, and we dug where he told us to dig, and that was where we dug, and where he told us to.

Lawhon during the 'progress of that work? A. I never heard of it only the first day, what I told you that they spoke about.

"Q. You never heard of it until when? A. When we started the sewer, he said, 'We wil watch it.'

"Q. We will watch it, and do what? 4. Brace it.

*

>

"Q. As near as you could? A. Yes, sir. "Q. Now, there were two rows of stakes set along the line where you were to dig, were there not? A. I never saw any stakes.

"Q. You never saw any stakes at all? A. No, sir; not until Mr. Holkenbrink come; no. "Q. When he came, you saw the stakes then, didn't you? He pointed them out, didn't he? A. Yes, sir; he showed them to us.

"Q. And there was a paper that the engineer furnished, signed by C. O. Judson, engineer, that was put on a board, and you had it there all the time, didn't you? A. I never saw such a thing; no, sir.

J

(252 S.W.)

"Q. A little paper like this, that had all the, and Fisher each testified as to the conversameasurements on it (indicating)? A. No, sir; tion between Dr. Holkenbrink and Lawhon I never saw that. in which the terms of the latter's employment were agreed upon. All of this testiplaintiff. The ground of the objection was mony was received over the objection of that these witnesses were incompetent to tes

On the part of the defendant the evidence tify with respect to the contract as the other tended to show:

"E. The court instructs the jury that, if they believe and find from the evidence that the deceased, John Lawhon, contracted and agreed with the defendant to make the excavation mentioned in evidence to connect the sewer therein, and to refill said excavation, and was to receive therefor the sum of $75 for doing the entire work, and for the doing of said work was to furnish all of the necessary labor, then he was an independent contractor, and, if you so find, your verdict must be for the defendant."

By another instruction, F, the jury were told that, if they found that deceased was Dr. Holkenbrink, Will Holkenbrink, Crane, only a servant employed to do the work as a