Miller v. Williams
| Decision Date | 16 November 1934 |
| Docket Number | 32165 |
| Citation | 76 S.W.2d 355 |
| Parties | MILLER v. WILLIAMS |
| Court | Missouri Supreme Court |
Doughlas H. Jones, of St. Louis, for appellant.
Walter Wehrle, of Clayton, and T. J. Crowder, of St. Louis, for respondent.
Action to recover $ 10,000 for the death of Charles H. Butcher who was killed by an automobile owned and driven by defendant on Big Bend road in Webster Groves at 5:15 p. m. on December 3 1930. Judgment for defendant, and plaintiff appealed.
The case was submitted to the jury under the humanitarian rule. It was alleged that defendant saw, or, by the exercise of due care, could have seen, Butcher walking across the street and in a position of imminent peril, in time to have avoided the collision by sounding the horn, reducing speed, swerving to the right, or stopping the automobile.
Plaintiff assigns error in the trial of the case. Thereupon defendant contends that the demurrer to the evidence should have been sustained.
There was evidence tending to show the following: The general direction of Big Bend road is east and west. The width of said street is twenty-eight feet, consisting of a concrete slab twenty feet wide, with four feet of macadam on each side of the slab. Butcher resided with his daughter on the north side of the street and in the middle of the block between Swon and Bradford avenues. In walking about that section of the city he used the sidewalk on the south side of the street. There was no sidewalk on the north side of the street. He was eighty-four years of age, slightly bent, and walked with a cane. At about dusk on said day he proceeded from the sidewalk on the south side to walk directly across the street to the home of his daughter. At the time persons on the street could be seen without the aid of lights. As Butcher walked north from the sidewalk at about two miles per hour, he neither looked to the east nor to the west. When he stepped from the sidewalk to the street, defendant's automobile was east of Butcher. It was moving westward on the north side of the street at twenty-five miles per hour, with the left wheels of the automobile about ten inches from the center line of the slab. Its lamps were lighted, and defendant had a clear view of persons on the street and west of his automobile. When the automobile was within eight or ten feet of Butcher, and he was about the center of the street, defendant applied the brakes and swerved to the left. The front of the automobile between the fender and lamp on the right side of the automobile struck Butcher, thereby causing his death. The automobile then angled to the curb on the south side of the street. It could have been stopped in ten to twelve feet moving at twenty-five miles per hour.
Thus it appears that Butcher moved about three feet a second and the automobile about thirty-seven feet a second. In walking from the sidewalk to the point of collision, Butcher consumed about four seconds. It follows that, at the time he stepped from the sidewalk and proceeded northward, the automobile was about one hundred forty feet east of the point of collision. Under the evidence the jury could find that defendant saw, or, by the exercise of due care, could have seen, Butcher step from the sidewalk and proceed northward; that he was an aged man; that he neither looked to the east nor to the west; that he was oblivious of the approach of the automobile; that he was about to enter or in a position of peril, and that defendant had ample time to give warning, reduce the speed, swerve to the right, and even stop the car, thereby avoiding the collision.
It is the duty of the driver of an automobile upon a street to keep a lookout for pedestrians crossing a street at a place other than intersections. Fitzgerald v. Norman (Mo. Sup.) 252 S.W. 43, loc. cit. 44; Meenach v. Crawford (Mo. Sup.) 187 S.W. 879, loc. cit. 882; Ostermeier v. Implement Co., 255 Mo. 128, loc. cit. 131, 164 S.W. 218; Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A. L. R. 1173, 1176, McKeon v. Delbridge, 55 S.D. 579, 226 N.W. 947, 67 A. L. R. 313; Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733, 62 A. L. R. 578; Huddy's Auto. Law (9th Ed.) vol. 5-6, p. 36.
In this connection defendant...
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