Bunch v. Mueller
| Decision Date | 14 November 1955 |
| Docket Number | No. 45057,45057 |
| Citation | 284 S.W.2d 440,365 Mo. 494 |
| Parties | Marilyn BUNCH, an Infant by Elmer Loren Bunch, her Next Friend, Appellant, v. Erwin MUELLER, Respondent. |
| Court | Missouri Supreme Court |
Lyng, MacLeod & Davidson, Russell N. MacLeod and F. Daley Abels, St. Louis, for plaintiff-appellant.
Jones, Hocker, Gladney & Grand, H. C. Gaebe, Jr., and Harold B. Bamburg, St. Louis, for respondent.
Action for damages for personal injuries sustained by plaintiff, a ten year old child, when she was struck by defendant's automobile as she was crossing a public street in the city of St. Louis. The cause was submitted on defendant's alleged humanitarian negligence in failing to stop or warn. Verdict and judgment were for defendant and plaintiff appealed. Since the amount sued for was $5,000, the appeal was taken to the St. Louis Court of Appeals, where that court would have affirmed the judgment [Bunch v. Mueller, Mo.App., 278 S.W.2d 25], but on application of plaintiff-appellant the cause has been transferred to this court. We shall review the record as if on original appeal to this court. Art. V, Sec. 10, Const. of Mo.1945, V.A.M.S.
Plaintiff-appellant contends that the court erred in giving Instruction No. 5, on sole cause, at the request of defendant. Defendant-respondent, however, insists (1) that the instruction correctly declares the law; (2) that, in any event, it was not prejudicially erroneous; and (3) that, even if the instruction is erroneous, the error is immaterial because the plaintiff-appellant failed to make a submissible case of humanitarian negligence for the jury on the grounds submitted. Respondent says there was 'no evidence to show where the defendant was at the time the plaintiff first came into a position of imminent peril.' If plaintiff failed to make a case for the jury, the error, if any, in the giving of Instruction No. 5 was harmless and immaterial. O'Dell v. Dean, 356 Mo. 861, 204 S.W.2d 248; Coleman v. Ziegler, Mo.Sup., 248 S.W.2d 610, 617. Accordingly, we must determine whether plaintiff made a case for the jury on the grounds submitted.
The evidence favorable to plaintiff tended to show that on September 19, 1952, plaintiff was residing with her parents at 4158 McRee Street in the city of St. Louis. About 5 p. m. in the afternoon of that day, she started to go to a drug store south of Lafayette Avenue to get a paper for her mother. Lafayette is 30 to 35 feet in width and runs east and west. It intersects, at right angles, Tower Grove Avenue which is 50 to 55 feet in width. The intersection was marked for 'a four-way stop.' There were four lines of traffic, two each way on Tower Grove, and two lines of traffic, one each way on Lafayette. Plaintiff was walking south on the east side of Tower Grove. She stepped off the sidewalk into Lafayette to cross it at the corner and she walked straight across from the sidewalk. While on the curb, she looked both right and left before she started to cross and she saw no automobile approaching that would interfere with her crossing. She then started walking south and 'never did run.' When she reached the center of Lafayette she looked again to her right and saw 'nothing coming.' She continued walking south, until she was struck and knocked down by defendant's eastbound automobile. The front part of the automobile, the radiator, hit her. The automobile came from her right. She never saw it, until it struck her. She was knocked down and fell in the street in front of the automobile. After she was down and the automobile had been stopped, it was so close to her she could touch it. Her evidence does not otherwise show how far she had walked beyond the center of Lafayette, nor how far she was moved eastwardly from her original position by the impact of the automobile. The skin of her right hip was broken and the hip was bruised. Both knees were cut and plaintiff suffered other injuries.
There was evidence that, shortly after the collision, defendant told two police officers that, as he reached the crosswalk, the child started crossing the street from north to south; that the child 'walked in front of' his automobile; that he saw her when she was about 10 feet ahead; that he didn't see her until he struck her; that the front bumper of his automobile struck her; that, at the instant of the collision, he was traveling about 10 miles per hour; and that he had not exceeded 15 miles per hour in crossing Tower Grove.
Plaintiff also offered parts of defendant's prior deposition testimony to the effect that he was going east on the south side of Lafayette; that he had had to creep through the traffic on Tower Grove; that his maximum speed was 5 or 8 miles per hour; that plaintiff was on his (south side) of Lafayette, when he saw her; that he was looking straight ahead, when he saw her; that he didn't see anyone crossing Lafayette before he saw plaintiff; that he had looked to the left before he reached the crosswalk and saw no one crossing the street; and that the range of his vision included the crosswalk to his lift.
Defendant's testimony favorable to plaintiff at the trial tended to show that there was very heavy traffic in each of the four lanes of traffic on Tower Grove; that he had had to inch his way across; that he had to stop and start, and to hesitate and then go a little farther; that he had had to stop and let automobiles pass in front of him in each of the two northbound lanes (east lanes) on Tower Grove; that, when the traffic cleared in the furtherest east lane, he looked to his left, looked at the crosswalk, and saw no one; that he never saw plaintiff, until she was crossing the center line of Lafayette and coming into his side of the street; that she must have passed in front of a westbound automobile on Lafayette, 'as she appeared right out of nowhere in front of' him; that he saw her 'just as she bumped into' him and 'diagonally cut across in front of' him; that his speed, after the last northbound cars on Tower Grove had passed in front of him, did not exceed 5-8 miles per hour, but that it could have been 2 or 3 miles per hour; that his speed during the first 5 feet did not exceed 2 miles per hour; that at 5 miles per hour, he could have stopped in one foot, including reaction time, and in about 1 1/2 feet at 8 miles per hour; that at no time did he sound his horn; that, after the last northbound car had passed in front of him on Tower Grove, there was nothing to obstruct his view of the crosswalk across Lafayette; that, when he started up after the last car had passed, he was more than 10 feet west of the east line of Tower Grove; that his automobile was in good condition and the streets dry and level; and that, when he saw plaintiff, he stepped on the brakes and 'stopped dead' and there were no skid marks.
Other evidence favorable to plaintiff included a part of the testimony of defendant's witnesses, Mr. and Mrs. Jacques. They both saw the plaintiff cross the north half of Lafayette going south. She crossed in front of their westbound automobile. She looked only to the east. There was nothing between plaintiff and the defendant's automobile (as the defendant was coming east through the east line of northbound traffic on Tower Grove) to have prevented defendant from seeing the plaintiff as she moved across Lafayette to the point of collision.
Plaintiff offered no direct testimony as to how fast she walked in crossing Lafayette to the point of collision. She said she did not run and her evidence indicates that she was proceeding in the usual and ordinary manner of a child of her age. No reasons for haste or delay appear. In such case the rate at which she traveled was a matter of common kewledge. Jurors are presumed to know of such matters. 'This court has taken judicial notice of the fact that the ordinary walking speed of the average man is two or three miles per hour or 2.9 to 4.4 feet per second.' De Lay v. Ward, Mo.Sup., 262 S.W.2d 628, 635, and cases cited. A ten year old child would walk at approximately the same speed. Further, her testimony tends to show she had reached the approximate center of the eastbound traffic lane in the south half of Lafayette, and that she was oblivious of her peril when she was struck by the radiator of defendant's automobile. The distance of defendant's automobile from plaintiff's line of travel at any particular time, as plaintiff moved across Lafayette, was a mere matter of computation by the jury, dependent upon what speed the jury might delieve and find the plaintiff to have been walking and the defendant to have been traveling as he moved from his stopped position in Tower Grove to the point of collision. Where plaintiff was when she came into a position of imminent peril of being struck by defendant's sutomobile was a fact question for the jury to determine under all of the circumstances in evidence. Wofford v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 529, 533; Kelley v. St. Louis Public Service Co., Mo.Sup., 248 S.W.2d 597, 601.
In view of the evidence in the record as to the speed at which defendant operated his automobile and the distance within which he could stop it at stated speeds, it is clear that there was evidence from which a jury could find that, after plaintiff came into a position of definite and certain peril from the approach of defendant's automobile, the defendant was a sufficient distance away from her, and from her line of travel, that he could have stopped his automobile or sounded a warning and have avoided striking and injuring her. The jury could find that plaintiff had stepped off the sidewalk at the north curb of Lafayette and had walked directly south along a proper crossing at a speed of 2 to 3 miles per hour; that she traveled some 18 to 20 feet in Lafayette and, after she had passed the center of Lafayette, she was struck and knocked down by the front bumper and radiator of defendan...
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