Barnes v. Vandergrift, 44286
| Court | United States State Supreme Court of Missouri |
| Citation | 269 S.W.2d 13,364 Mo. 829 |
| Docket Number | No. 44286,44286 |
| Parties | BARNES v. VANDERGRIFT. |
| Decision Date | 14 June 1954 |
Page 13
v.
VANDERGRIFT.
[364 Mo. 830]
Page 14
Stemmons & Stemmons and J. A. Appel-quist, Mount Vernon, for appellant.Sater & Monroe, Monett, for respondent.
[364 Mo. 831] HYDE, Judge.
Action for damages to plaintiff's automobile in collision with defendant's automobile. Plaintiff obtained verdict and judgment, which the trial court set aside and ordered judgment entered for defendant. Plaintiff appealed to the Springfield Court of Appeals which reversed the judgment and directed that judgment be entered for plaintiff. Barnes v. Vandergrift, 263 S.W.2d 735; for previous appeal see 238 S.W.2d 439. We transferred the case because the Court of Appeals did not pass on all the questions raised.
Defendant contends that plaintiff failed to make a jury case because he claims that plaintiff testified to a state of facts making it an impossibility for the accident to have happened as he described; and apparently this was the view of the trial court. Defendant offered no evidence. Plaintiff was driving north on the east side of Highway EE in Mt. Vernon. As he approached the intersection with South Street (one block south of the public square) defendant's car came from a filling station (on the southwest corner of the intersection) across the intersection at an angle to the northeast and collided with plaintiff's car. Plaintiff testified that as he approached this filling station defendant began to move his car 'antegoggling' into the highway 'without looking either direction.' He said that when he first noticed his car begin to move he was 'right at the edge of this filling station property, approximately 25 or 30 feet up the street.' He said when he saw defendant's car in motion he honked his horn and slacked up on his speed; and that when defendant came into his lane he swerved to the right and at that time had his brakes on. Plaintiff estimated his speed at 28 miles per hour (before he saw defendant's car in motion) and said that defendant 'was probably going five miles an hour' across the intersection. Defendant's right front fender
Page 15
and plaintiff's left front fender came in contact in the east lane of the highway.[364 Mo. 832] Defendant's contention as to impossibility is based on the following cross-examination:
'Q. Where does your visibility of this place show up? A. Approximately 30 feet up the highway.
'Q. You say that the filling station isn't visible more than 30 feet? Now what speed were you driving down the highway? A. 28 miles an hour, sir. * * *
'Q. When you was in 28 or 25 feet of that intersection where was the defendant's car? A. He was sitting on the east side of those pumps.
'Q. On the east side of the pumps. And how many feet was he then from the southwest side of EE street? A. 15 feet as I said.
'Q. So when you saw him, driving at 28 miles an hour 25 or 30 feet south of where this accident occurred, he was still 15 feet west of the edge of the highway? A. That is my first vision of him. * * *
'Q. I say how many feet was it west of where the impact took place? A. Approximately when I first seen it from the place where he was sitting to the impact was around 20 or 25 feet.
'Q. When you first saw him he was 20 to 25 feet from where the impact took place? A. Yes. * * *
'Q. But you do know that a man driving at four or five miles an hour going the same distance couldn't make the center of the street as quick as a man driving 25 or 28 miles an hour the like distance, don't you? A. It sounds that way.'
However, later in this same cross-examination, plaintiff testified further, as follows:
'Q. Now while he was driving that 30 feet at 4 miles per hour or 5, you were traveling, you say, 20 to 30 feet at 25 miles per hour? A. I beg your pardon. I was 30 feet up the highway.
'Q. You was 30 feet up the highway and that was 30 feet south of the intersection? A. No, sir, I beg your pardon.
'Q. Where were you then? A. I was 30 feet up the highway when I first came in vision of this filling station.
'Q. And he was at the filling station then? A. That's right.
'Q. And you saw then that he was moving? A. He was in motion.
'Q. So after all you was 30 feet back there. He wasn't standing there when you first saw him? A. No, sir, his car was in motion.'
Considering plaintiff's testimony as a whole (most favorably to plaintiff), we do not think it conclusively...
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