Bafaro v. Pezzani
Decision Date | 17 March 1964 |
Docket Number | No. 31382,31382 |
Citation | 376 S.W.2d 631 |
Parties | Rose Marie BAFARO, (Plaintiff) Respondent, v. Josephine PEZZANI, (Defendant) Appellant. |
Court | Missouri Court of Appeals |
James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellant.
Joseph J. Dolgin, O'Connor, Dolgin & Godfrey, Clayton, for respondent.
G. DERK GREEN, Special Commissioner.
The plaintiff, Rose Marie Bafaro, filed suit for $9,500 for injuries received in a collision between the car she was driving and one driven by defendant. The petition alleged both primary negligence and humanitarian negligence, but plaintiff submitted the case only on the charge of humanitarian negligence. The jury returned a verdict for defendant. Thereafter, the court granted plaintiff a new trial for error in giving defendant's sole cause Instruction No. 11. Defendant has appealed and raises two points: First, that plaintiff failed to make a submissible case of humanitarian negligence and secondly, that Instruction No. 11 was not prejudicially erroneous. If defendant's first contention is correct and plaintiff failed to make a submissible case, error, if any, in the instruction was immaterial and a new trial should not have been granted. Kirks v. Waller, Mo., 341 S.W.2d 860.
On the first point, we must state and review the evidence in a light most favorable to plaintiff, give plaintiff benefit of all favorable inferences arising therefrom and disregard defendant's evidence unless it aids plaintiff's case. Brown v. Wooderson, et al., Mo., 362 S.W.2d 525; Kirks v. Waller, Mo., 341 S.W.2d 860; Begley v. Connor, Mo., 361 S.W.2d 836.
The collision occurred on January 14, 1960, sometime between 8:30 and 8:45 A.M., in the 5300 block of Wilson Avenue, an east-west street between Macklind, the first street to the west, and Edwards, the first street to the east, in the City of St. Louis. The defendant, Josephine Pezzani, was headed eastbound on Wilson and collided with the plaintiff's automobile which had been parked at the south curb of Wilson Avenue and which was pulling out, or attempting to pull out, at the time of the collision. The width of Wilson Avenue at this point is not precisely established, but it is reasonably definite that with cars parked at both curbs, there was not room for two cars to meet and pass in the traveled portion remaining, although one witness thought four cars could be placed side by side in the street. On the day of the collision, plaintiff had taken her daughter to nursery school and had parked her car on the south side of Wilson Avenue headed east. Cars were parked in front of and behind plaintiff's car at the south curb and directly opposite her car on the north curb. There was a slight downgrade to the east. It had rained before the collision and it was misty at the time. The plaintiff and others were carrying umbrellas, and plaintiff's windshield wiper was on.
After plaintiff took her daughter into the nursery school, she returned to her car, got into it, closed the umbrella, threw it into the back seat, and closed the door. She observed a car parked behind her and another about three feet in front. She moved the shift lever from a 'park' position to 'neutral,' started the motor and released the brake. She looked at her inside rear view mirror but could not see satisfactorily; then she looked in her outside rear view mirror but could not see satisfactorily. With the car in neutral and her foot on the brake, she permitted the car to roll forward down the slight grade so she could look toward the rear through the window, which was down about four inches. When she was five or six, or possibly ten, inches from the curb, she truned her head to look out the window and at that instant her car was struck by one being driven eastward by defendant. Plaintiff did not give any hand or directional signal and her lights were not on. She did not see defendant's car before the instant of the collision and then it was so close she 'could not put her hand between the two cars.' She cannot estimate defendant's speed, but said that defendant admitted at the time to going 30 miles per hour. The right front fender of defendant's car struck the left side of plaintiff's car from the left door forward. The defendant's car stopped about one car length ahead of plaintiff's car. There were no cars coming from the east and no other moving traffic. Plaintiff estimated that five seconds elapsed from the time she got into her car until the collision and that two or three seconds elapsed from the time she started to move forward until the collision.
Defendant contends that there was no substantial testimony from which the jury could reasonably find where the plaintiff came into a position of imminent peril and consequently where the defendant's duty to act began. To support this theory, defendant points out that there was no testimony in feet as to the width of Wilson Avenue, the width of plaintiff's car, defendant's car, or the car parked at the north curb; that there was no testimony of the speed of plaintiff's vehicle as it pulled out, or testimony that the defendant had the time, ability, or place to swerve her car to avoid the collision.
Plaintiff does not question the lack of evidence as to the measurements in feet as to the width of the street or the width of the respective cars, but relies upon the testimony that the street was almost four cars wide and possibly four cars could be placed side by side, but two cars could not meet and pass with cars parked on both sides. Plaintiff contends that this was substantial evidence upon which the jury could find that defendant had a safe place to swerve her car to the left or north of its path to avoid the collision. On this point we agree with the plaintiff.
On the time factor, plaintiff further undertakes to sustain a submissible case upon this theory: According to her estimate, two or three seconds elapsed from the time she released the brake and started to move forward until the impact. Taking the time as three seconds and the speed of defendant's car as 30 miles per hour, as plaintiff said defendant admitted, at the time plaintiff's car started to move, defendant was 135 feet back of plaintiff's car; or taking the speed of 20 to 25 miles per hour, as defendant testified, she was 90 to 100 feet away; or taking the slower speed of 20 miles per hour and the time defendant estimated she had, the distance would be 30 feet and in either case, plaintiff...
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