Berry v. McDaniel
| Decision Date | 17 June 1954 |
| Docket Number | No. 7263,7263 |
| Citation | 269 S.W.2d 666 |
| Parties | BERRY v. McDANIEL. |
| Court | Missouri Court of Appeals |
Cope & Ponder, Poplar Bluff, for appellant.
J. V. Conran, New Madrid, Charles T. Bloodworth, Jr., O. A. Tedrick, Poplar Bluff, for respondent.
While walking from the north toward the south side of U. S. Highway 60 in Poplar Bluff, Missouri, plaintiff, Ray Berry, was struck by an east-bound automobile driven by defendant, H. G. McDaniel. Upon trial, plaintiff's cause of action for personal injuries was submitted solely upon alleged negligence under the humanitarian doctrine in failure to slacken speed or swerve. On this appeal from an adverse judgment for $1,500.00, defendant, who offered no evidence but stood on his motion to dismiss at the close of plaintiff's evidence, insists that plaintiff did not make a submissible case and, in the alternative, that certain instructions were erroneous.
During the noon hour on June 13, 1949, plaintiff, a young man, left his place of employment at Casey Motor Company in a panel body truck driven by his brother, Cecil Berry, for the purpose of going to plaintiff's home on the south side of Highway 60 just east of Palmer Slough Bridge. At the point of accident, Highway 60 runs in a general easterly and westerly direction, has a two-lane concrete roadway 18 feet in width, and is straight for a distance of not less than one-quarter of a mile to the west. Palmer Slough Bridge is about 150 feet in length. Plaintiff's brother drove in a westerly direction from Casey Motor Company to a point near the east end of the Palmer Slough Bridge, turned onto the north shoulder of the highway, and stopped with the left side of the panel body truck about one foot north of the north edge of the concrete roadway and with the front end of the truck about ten feet east of the east end of the bridge. Plaintiff alighted from the truck, walked around the rear end of it, stopped at the north edge of the concrete pavement, and looked first to the east and then to the west for approaching traffic. 'There were no cars close'.
At this point about 30 feet east of the east end of the Palmer Slough Bridge, plaintiff started 'straight across' the two-lane concrete roadway 'at a normal walk'. He did not look again in either direction until he was in the east-bound traffic lane on the south side of the center line of the two-lane pavement, 'about the middle from this black (center) line to the (south) edge of the highway', when he heard brakes, 'turned sideway to look', and saw defendant's east-bound automobile bearing down upon him. As to the location of defendant's automobile when he then saw it, plaintiff said at different places in his testimony that 'it was off the bridge', it was about 20 feet distant, and it was about 30 feet distant; but, he testified definitely that defendant's automobile was 'on the bridge' when he heard brakes 'squealing'. Plaintiff 'started to take another step and he (defendant) hit me right there', at a point about one step or 3 feet north of the south edge of the two-lane concrete roadway.
The vehicle driven by defendant was identified only as an automobile. There was no showing as to its make, model, size or weight, as to the kind, type or condition of the braking equipment, or as to the distance required, after application of the brakes at any stated speed, for slackening to any given speed or for stopping. The only estimate of the speed of defendant's automobile was given by Cecil Berry, plaintiff's brother, who said that, when he passed defendant's east-bound automobile 'about the middle of the bridge' (after plaintiff had alighted from the panel body truck east of the bridge and Cecil thereafter had proceeded west onto the bridge), it was traveling 'about 40 miles an hour--close to 40'.
Under the humanitarian doctrine, defendant had no duty to act until plaintiff came into a position of imminent peril. McClanahan v. St. Louis Public Service Co Mo.Sup., 251 S.W.2d 704, 707(2); Vietmeier v. Voss, Mo.Supp., 246 S.W.2d 785, 788(4); Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694, 699(7); Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, 498(1). It is only "when such peril arises (that) the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise (proper) care * * *, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others". Johnson v. St. Louis Public Service Co., Mo.Sup., 251 S.W.2d 70, 75(6), and cases there cited. 'Sometimes humanitarian cases require niceties in calculations for the doctrine begins to operate and seizes the facts when imminent peril arises.' Vietmeier v. Voss, supra, 246 S.W.2d loc. cit. 787.
In determining upon this appeal whether plaintiff made a submissible case, we consider the evidence in the light of plaintiff's theory, as stated with commendable frankness by his counsel in oral argument, that plaintiff did not come into a position of imminent peril until he crossed the center line of the two-lane concrete pavement. On this theory, plaintiff traversed a distance of approximately 6 feet, i. e., from the center line to a point 3 feet north of the south edge of the concrete roadway, after he came into a position of imminent peril. Since plaintiff was crossing 'at a normal walk', we may take judicial notice of the fact that he was moving at 2 to 3 miles per hour, or 2.9 to 4.4 feet per second, probably "more nearly the later." Romandel v. Kansas City Public Service Co., Mo.Sup., 254 S.W.2d 585, 590(6); McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, 639(6). Accordingly, the period of time during which plaintiff was in the zone of imminent peril prior to the accident was within the range between 1.36 seconds (at a walking rate of 3 miles per hour) and 2.07 seconds (at a walking rate of 2 miles per hour).
At 40 miles per hour (the only speed shown in the record), defendant's automobile was traveling 58.66 feet per second. If the speed of defendant's automobile had not been slackened prior to the accident (which is, as we shall note, an unwarranted premise more favorable to plaintiff than his evidence justifies), defendant's automobile would have traveled, after plaintiff came into a position of imminent peril, a distance within the range between 79.77 feet (on the basis of an elapsed time of 1.36 seconds prior to the accident) and 121.42 feet (on the basis of an elapsed time of 2.07 seconds). Our courts have 'judicially noticed that a reaction time is required for a motorist to apply brakes on an automobile' [Dister v. Ludwig, supra, 240 S.W.2d loc. cit. 698(4); Yeaman v. Storms, supra, 217 S.W.2d loc. cit. 498(2)]; and, 'unless a longer time affirmatively appears in the proof the courts recognize that such reaction time is three-quarters of a second' [Vietmeier v. Voss, supra, 246 S.W.2d loc. cit. 788(5), and cases there cited]. According to defendant such reaction time for application of brakes, his automobile traveled 44 feet (three-quarters of 58.66 feet) before the brakes could have taken hold, so, after the reaction time had elapsed, defendant's automobile would have been no farther from plaintiff than 35.77 feet (79.77 feet less 44 feet) to 77.42 feet (121.42 feet less 44 feet), probably nearer the shorter distance of 35.77 feet. And, since plaintiff was struck at a point about 30 feet east of the east end of the bridge, defendant's automobile would have been, after the reaction time had elapsed, within a range of 5.77 to 47.42 feet west of the east end of the bridge, again probably nearer the shorter distance of 5.77 feet.
All of the foregoing calculations assume that the speed of defendant's automobile was undiminished prior to the accident. Since, as we believe, plaintiff's evidence reasonably tends to show that the speed of defendant's automobile had been slackened to some extent prior to the accident (although there was no definite estimate as to its speed after plaintiff's brother, Cecil Berry, passed it 'about the middle of the bridge'), the intervening distance between plaintiff and defendant's automobile when plaintiff came into a position of imminent peril and similarly the intervening distance between plaintiff and defendant's automobile, after the reaction time of three-quarters of a second had elapsed, must have been somewhat less than has been indicated in the foregoing calculations. In short, we think it quite apparent from the record that, after plaintiff had entered the zone of imminent peril (under his theory of the case) by crossing the center line of the two-lane concrete roadway and after the reaction time had elapsed, defendant's automobile must have been near the east end of the Palmer Slough Bridge.
With the foregoing in mind, we turn specifically to consideration of the question as to whether plaintiff made a submissible case under the humanitarian doctrine for alleged failure to slacken speed. Plaintiff, himself, testified at one place in his testimony that 'it (defendant's automobile) squealed back here on the bridge', at another place that it was 'on the east end of the bridge' when he 'looked up and heard the brakes', and still again that, when he heard defendant's automobile 'screaching', 'it was partly on the bridge'.
Plaintiff's wife, Violet Berry, saw her husband alight from the truck, stop at the north edge of the pavement (although 'I didn't notice whether he looked both ways'), and apparently watched her husband cross the north half of the two-lane highway. , when 'he lacked about one step of being off the south side of the highway.'
Mrs. Allene Casey,...
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