Bischoff v. Dodson

• Decision Date: 30 June 1966
• Docket Number: No. 8461,8461
• Citation: 405 S.W.2d 514
• Parties: E. L. BISCHOFF, Plaintiff-Appellant, v. Minnie A. DODSON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 514

405 S.W.2d 514

E. L. BISCHOFF, Plaintiff-Appellant, v. Minnie A. DODSON, Defendant-Respondent.

No. 8461.

Springfield Court of Appeals, Missouri.

June 30, 1966.

Motion for Rehearing Denied July 28, 1966.

Gerald H. Lowther, James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Stephen L. Hill, Allen, Woolsey & Fisher, Springfield, for plaintiff-appellant.

B. H. Clampett, W. Ray Daniel, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent.

HOGAN, Judge.

This is an action for personal injuries sustained in the collision of two automobiles. Plaintiff had a verdict and judgment in the sum of $7,000.00; but, upon defendant's motion, the trial court granted a new trial on the issue of damages only, basing its order upon the erroneous reception of evidence. The plaintiff has appealed from the order granting a new trial. The defendant, though maintaining the new trial was properly granted, questions the submissibility of the plaintiff's case. In point of fact, the parties have briefed and argued a number of points, but we find it necessary to consider the essential merits of only two of them. They are: 1) whether, as the defendant maintains, the plaintiff was contributorily negligent as a matter of law; and 2) whether the reception of evidence to show the plaintiff's loss of past earnings was error justifying the grant of a new trial. We need not discuss the procedural aspects of the appeal which the defendant has briefed, though we appreciate her having done so; we think she is entitled to have the submissibility of plaintiff's case reviewed, at least to the limited extent she requests it. In any case the point is not questioned, and we simply assume that the so-called 'submissibility error,' if any, is before us. Gibbs v. Bardahl Oil Co., Mo., 331 S.W.2d 614, 620 (1); Millar v. Berg, Mo., 316 S.W.2d 499, 502--503(3).

The casualty here involved occurred on December 9, 1963, at the intersection of Grant and Mt. Vernon Streets in Springfield, Missouri. Grant runs north and south, Mt. Vernon east and west, and the two intersect substantially at right angles. Grant, which is a favored or 'through' street, is 42 feet wide, and Mt. Vernon is 30 feet wide. Both are paved streets. At the southwest corner of the intersection, there is a brick building 'approximately 7 or 8 feet' south of the south curb line of Mt. Vernon and about the same distance west of the west curb line of Grant. There is a stop sign for eastbound traffic on the south side of Mt. Vernon, a short distance west of the intersection.

Plaintiff, who described his occupation as being a 'truck salesman for Sunray DX Oil Company,' was going north on Grant. He was driving a 'ton and a half truck' with an 800-gallon tank on it. This vehicle, with the tank empty, weighed about 6,000 pounds. Defendant was driving east in a Ford station wagon. Both parties described the weather as being 'clear,' and there were no vehicles parked around the intersection at the time. The accident happened about 11:15 or 11:20 A.M.

As plaintiff described the sequence of events on trial, he was traveling north on Grant in the east or northbound lane, going 'less than 20 (miles per hour), anyway * * *.' As one travels north on Grant, the view west on Mt. Vernon is obstructed 'until you get * * * approximately to the corner.' When Mr. Bischoff came to a point about even with 'the middle of the building,' so that according to his best judgment he was about 20 feet south of the south curb line of Mt. Vernon, he looked to the west and saw no traffic approaching. Plaintiff then glanced to the right, and then, looking straight ahead, proceeded into the intersection. He did not see the defendant's station wagon prior to the collision, but as the front wheels were 'at least on the north curb to the intersection,' Mr. Bischoff 'thought a bomb had hit the top of my cab'; the 'back end slid around then rolled,' and the truck overturned. After the impact, the Bischoff vehicle was located north of the intersection 'several feet on its back.'

Mrs. Dodson, who was on her way to a social engagement, testified that she left her home some distance west on Mt. Vernon Street a short time before the accident, and drove 'just straight' on Mt. Vernon to the intersection. When she came to the intersection, Mrs. Dodson 'pulled the front up where I could see both ways, north and south, and * * * I didn't see anything coming, and I just started on out across the street * * * and the next thing I knew, the truck ran over me, that's all.' Defendant estimated that she had stopped as long as five seconds before entering the intersection, that she was driving only five miles per hour at the time of impact, and that the collision occurred when she was 'almost completely across the street.' Mrs. Dodson estimated that she was within 18 inches of the west curb line of Grant when she stopped to look, and that when she stopped, while she couldn't 'swear' she could see two blocks to the south, she could see '* * * close to it, I'd say.' Defendant 'never saw the truck.'

Other evidence was introduced, along with a number of exhibits. We shall note some of this evidence, as it relates to the points raised, in the course of the opinion.

The respondent's specific point dealing with the submissibility of plaintiff's case is that since Mr. Bischoff failed to see the Dodson vehicle prior to the collision, he was guilty of contributory negligence as a matter of law. The burden of respondent's argument seems to be that plaintiff, if he had maintained a proper lookout, could and should have seen the defendant in time to avoid the collision, and should have acted to do so. In support of her point, defendant cites and quotes from a number of cases which stress the relative and reciprocal nature of the rights and duties created by traffic statutes, such as Lamfers v. Licklider, Mo., 332 S.W.2d 882, Pitts v. Garner, Mo., 321 S.W.2d 509, and Witt v. Peterson, Mo., 310 S.W.2d 857.

We have recited the facts as we have precisely to show that the oral evidence, at least, was irreconcilably in conflict. Clearly, reasonable minds might have resolved the issues of negligence and contributory negligence by concluding that both drivers were distracted or inattentive and that both were materially at fault, but that does not carry the conclusion that defendant was entitled to a directed verdict because of plaintiff's contributory negligence. A plaintiff is to be held guilty of contributory negligence as a matter of law only when the evidence most favorable to his submission, together with the inferences permissible therefrom, allow no other reasonable conclusion. Otherwise, the plaintiff's contributory negligence is a jury question. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19(1); Kickham v. Carter, Mo., 314 S.W.2d 902, 908--909(8)(9); Jones v. Fritz, Mo.App., 353 S.W.2d 393, 399(11).

The respondent emphasizes Mr. Bischoff's testimony that he never saw the Dodson car before the collision, and his statement in response to counsel's question that one can see 'a thousand or two thousand feet' back to the south 'when you get on up to the curb line, the west curb line (of Grant).' One of the investigating officers, called as plaintiff's witness, also testified that 'when the front of your car is even with the west curb line of Grant * * * you can see to State Street unless parking on the west side * * * obstructs your view.' The record evidence was that there were no automobiles parked along the west side of Grant near the intersection. Mrs. Dodson testified, as we have indicated, that she '* * * pulled the front (of the car) up where I could see both ways,' looked in both directions, and saw nothing coming. Defendant estimated that she was stopped '* * * I'd say at least five seconds.'

A somewhat complicating and contradictory feature of the evidence is that both the plaintiff and the investigating officer testified that the view on Mt. Vernon is obscured for a northbound motorist, in plaintiff's words, until 'you get to the corner, approximately to the corner.' The investigating officer's evidence was that 'it wouldn't be a blind intersection. You could see before you entered the intersection.' The officer answered 'yes' to counsel's suggestion that he meant 'just before you get to the intersection.' Some of the exhibits of both parties indicate that on the southwest corner of the intersection there is an array of poles, signs and guy wires, which may have interfered with both plaintiff's and defendant's view. The record evidence thus suggests that the unobstructed view ahead and laterally may not have been the same for both plaintiff and defendant.

In any case, we think the defendant's argument overstates the measure of plaintiff's duty. Though we have no doubt that if the defendant had already preempted the intersection before plaintiff entered, it was plaintiff's duty to exercise the highest degree of care to allow defendant to pass in safety, Creech v. Blackwell, Mo., 298 S.W.2d 394, 400(5)(6); Jones v. Fritz, supra, 353 S.W.2d at 397--398(9), and plaintiff had no unrestricted right to enter the intersection in disregard of motorists on the intersecting street, Pitts v. Garner, supra, 321 S.W.2d at 518; Jones v. Fritz, supra, 353 S.W.2d at 397; still the plaintiff's duty to take evasive action (as defendant concedes) did not arise until it appeared to him, in the exercise of the highest degree of care, that defendant would not or could not stop short of his path. Pitts v. Garner, supra, 321 S.W.2d at 518(11); Myers v. Karchmer, Mo., 313 S.W.2d 697, 704(8); Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455, 460(4). So far as plaintiff's failure to see the defendant is concerned, we reiterate that plaintiff was under no duty to maintain a continuous lookout in one direction, Slaughter v. Myers, Mo., 335 S.W.2d 50, 54(6); Pitts v. Garner, supra, 321 S.W.2d...