Breshears v. Myers

• Decision Date: 12 April 1954
• Docket Number: No. 43532,No. 1,43532,1
• Citation: 266 S.W.2d 638
• Parties: BRESHEARS et al. v. MYERS
• Court: Missouri Supreme Court

Page 638

266 S.W.2d 638

BRESHEARS et al. v. MYERS.

No. 43532.

Supreme Court of Missouri, Division No. 1.

April 12, 1954.

George H. Miller, Royal M. Miller, Sedalia, F. M. Brady, Warsaw, for appellants.

John T. Martin, Sedalia, Martin & Gibson, Sedalia, of counsel, for respondent.

HYDE, Presiding Judge.

Plaintiff, Ada Breshears, sued for $25,000 for personal injuries, and plaintiff, Larry Breshears (her husband), sued for $5,000 medical and hospital bills, loss of services, etc. Verdict and judgment was for defendand and plaintiffs have appealed.

Mrs. Breshears, hereinafter referred to as plaintiff, was injured when the Ford she was driving was struck by defendant's Packard. The case was submitted on primary negligence and the defense was contributory negligence. Plaintiff alleges as error the refusal of instruction Pl, submitting the case on humanitarian negligence, based on defendant's ability to stop his car after plaintiff's peril arose; and in admitting in evidence a statement from a book as to the distance required to stop a car going 60 miles per hour. The decisive question is whether or not plaintiff made a submissible humanitarian negligence case.

The collision took place in front of the Dell Service Station on U. S. Highway 65 about six miles south of Warsaw. The highway runs in a general north and south direction and the station is on the east side near the top of a hill with a 5% grade. The pavement was 20 feet wide and, in the center of the west half of the slab, there was a yellow line going up the hill that ended seven feet north of the center line of the main station building. The actual crest of the hill was 149 feet south of the center line of this building. The station pumps, in front of this building, were 41 feet from the east edge of the pavement; and the area, between the pumps and the pavement, was covered with gravel, which also extended to the north and south making a driveway and parking place.

Plaintiff lived near the station, was familiar with the place and had been there many times. Driving home from Warsaw, she decided to stop there to buy a loaf of bread. She slowed the Ford to about 10 miles per hour and made a left turn across the highway, starting her turn about 15 feet north of the south end of the yellow line (171 feet north of the crest of the hill). She said it was neither a long turn nor an abrupt one but somewhere in between. She said it was at an angle between 45 and 90 degrees. She also said that before turning she looked in front and in her rear view mirror and saw nothing on the highway. She looked only toward the station after making the turn. Plaintiff had no recollection of putting on the brakes and did not know whether her speed slowed in crossing the highway but when it left the highway it was 'in very slow motion, ready to stop.' Just after the Ford left the highway (rear wheels four to six feet off the pavement), and either stopped or in slow motion, it was struck by defendant's car. Plaintiff at no time saw defendant's car and was not aware of its approach. The front of the Packard struck the Ford at about the right front tire and knocked it back to the west side of the pavement. The Packard went sideways to the north of the station, stopping with its rear wheels 10 to 14 feet east of the pavement. The Packard left tire marks on the pavement for 145 feet. These tire marks took a gradual course to the right. The marks of the right wheels left the pavement 74 feet south of the center line of the station building and the marks of the left wheels left it 25 feet to the south. The collision was in front of the station building. Plaintiff estimated the Ford went about 35 feet from the place where she started making the turn to the point where it was struck.

Defendant said he was driving between 65 and 70 miles per hour and that when he first saw the Ford it was several hundred feet away, on the west side of the road, moving normally south and giving no indication of making a turn, but that when it was about 175 to 200 feet from him he saw the front wheels start turning across the highway. He said he immediately applied his brakes and pulled 'slightly to the right and away from this car', hoping the occupants of the car would see him 'and pull back to their side of the highway'; but that the Ford continued across the highway in front of him without changing course or slackening speed. Plaintiff had the evidence of a surveyor that from the point where she started the turn it was possible to see (with her eyes 4'3"' above the pavement) only the top of a Packard (5'6"' above the pavement) when it was 450 feet south. Beyond that point the dip in the road, south of the crest of the hill, prevented it from being seen at all. At 400 feet, the top foot and a half of the Packard would be showing. At 300 feet it could be seen 'from the bumper on up' and at 250 feet there was 'full vision of the car.' Plaintiff also had evidence of tests in stopping a Packard of the same model as defendant's, at 60 miles per hour, showing that it was stopped in 115 feet from the time the brakes were applied, reaction time not included.

Plaintiff's theory of humanitarian negligence is as follows: 'The average speed of plaintiff's automobile was about five miles per hour (from ten miles per hour to a stop or near stop), while traveling the 35 feet from where she started to turn to the point of impact. It would have taken her 4.79 seconds to travel the 35...