Burke v. Renick
| Decision Date | 20 May 1952 |
| Docket Number | No. 28257,28257 |
| Citation | 249 S.W.2d 513 |
| Parties | BURKE v. RENICK et al. |
| Court | Missouri Court of Appeals |
Robert W. Hammerstein, Edwin A. Smith, St. Louis, for plaintiff.
J. D. Leritz, St. Louis, for defendant-appellant William Fred Renick.
Barnhart & Wood, St. Louis, for defendant-respondent Herman Howard Randell, Jr.
HOUSER, Commissioner.
This litigation arose out of an automobile collision at the intersection of Brannon Avenue and Winona Street in the City of St. Louis. The automobiles driven by William Fred Renick (northbound on Brannon) and Herman Howard Randell (west-bound on Winona) collided at approximately the center of the intersection. Halpin T. Burke, a guest in Renick's car, joined both Renick and Randell as defendants. Each defendant filed a cross-claim against the other. Burke settled his case, stepped out of the lawsuit, and defendants went to trial on their cross-claims. The jury found against each cross-claimant on his claim against the other. The trial court granted each cross-claimant a new trial, and Renick appealed from the order granting Randell a new trial of Randell's cross-claim.
The appeal raises the question whether Randell was guilty of contributory negligence as a matter of law and whether Instruction No. 11 was proper.
Turning to the facts, it is conceded that the streets leading to the point of collision were both about 30 feet wide, hard surfaced and dry. The streets intersect at right angles. Brannon is level. There is a small grade on Winona, going west. The collision occurred at night. Renick had two passengers with him in the front seat of his car. In Randell's car there were four passengers. On the southeast corner of the intersection there is a flat facing north, which sets back about 15 feet from the sidewalk which runs along the south side of Winona. There is a porch on the front end of the flat. The flat sets 10 to 12 feet east of the east curb line of Brannon.
Renick testified that his average speed as he drove northwardly on Brannon just before he reached Winona was about 25 or 28 miles an hour; that he slowed down to about 20 miles an hour at the intersections; that there were no cars parked on the east side of Brannon just south of Winona; that he was driving 2 feet from the center of Brannon; that when about 40 feet from the intersection he took his foot off the accelerator, put it on the brake and looked to the east for traffic; that he was traveling about 22 or 23 miles an hour at that time; that he saw no headlights or automobiles; that as he coasted forward he looked to the west, and when he was 3 to 6 feet into the intersection (by that time he had taken his foot off the brake and put it on the accelerator) he looked to the east, and then saw the other car coming; that the other car was then 2 or 3 feet east of the intersection; that it had not left the curb line; that it was a foot or two on the right of the center line of Winona 'going pretty fast * * * a lot faster' than the 28 miles an hour the witness' car was traveling. Renick thought he put his foot on the brake and he 'might have swerved to the left' to avoid a collision. Renick stated that his right fender collided with the left front fender of the other car; that he did not sound a horn; that one approaching Winona looking eastwardly could see between 20 and 30 feet down Winona; that after going back to the scene it appeared that the building on the southeast corner does not obstruct the view as much as he first estimated; that 'you can see 40 or 50 or 60 feet.'
As a part of his case Renick read from Randell's deposition, as admissions against interest, the following: that Randell was driving the car which collided with Renick's; that the weather was clear and that there was nothing to interfere with Randell's vision; that when Randell first came to the intersection, and when 15 to 20 feet east of the east curb line of Brannon, he looked south, in which direction he could see about 60 feet; that he saw nothing, then looked to the right, then looked back and saw the Renick car 'just about' the south curb line of Winona; that Randell did not sound the automobile horn immediately before the collision; that Randell 'started' to put on his brakes but did not succeed in doing so; that 'he hit me before I could'; that at no time did Randell change his course from the time he was 75 feet east of Brannon until the time of the collision, but continued straight westwardly; that after the collision Randell's car was located on the northwest corner of the intersection, facing northwest, and Renick's car was on the north side of Winona, west of Brannon facing southeast.
In support of his cross-claim Randell testified that he was driving west on Winona; that in the middle of the block before reaching Brannon he was driving approximately 25 miles an hour between 1 and 2 feet to the right of his center line; that when about 75 feet east of Brannon he took his foot off the accelerator and his car slowed down some; that he first looked to his left, when the front of his automobile was between 15 and 20 feet east of the east curb line of Brannon; that then he could see approximately 60 feet south on Brannon but saw no northbound traffic thereon; that he then looked to his right, saw no traffic on Brannon, then again looked back to his left at a time when the front of his automobile was 7 or 8 feet into the intersection, and then saw an automobile at the south curb line of Winona; that the speed of his car at that time was approximately 20 miles an hour; that he could not judge the speed of the Renick car coming at him in a split second; that Randell attempted to apply his brakes but was unable to do so before he was 'hit'; that the right front of Renick's car collided with the left side of Randell's car; that Randell's automobile came to rest on the sidewalk and terrace at the northwest corner of the intersection.
On cross-examination Randell testified that the visibility was good; that cars were parked almost to the corner on the south side of Winona; that he did not at any time change his course until the time of the collision; that the building interfered with his vision and that he did not sound a horn. In answer to the question '* * * if you had continued to look to your left from the time you first looked, when you were 15 or 20 feet away, there would have been nothing to have prevented you from observing the approach of Mr. Renick's automobile from the south on Brannon, was there?' Randell answered He testified he could have...
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