Burks v. Wilson

• Decision Date: 02 April 1962
• Docket Number: No. 7966,7966
• Citation: 356 S.W.2d 121
• Parties: Bessie BURKS, Plaintiff-Appellant, v. Fon Edward WILSON, Jr., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 121

356 S.W.2d 121

Bessie BURKS, Plaintiff-Appellant, v. Fon Edward WILSON, Jr., Defendant-Respondent.

No. 7966.

Springfield Court of Appeals, Missouri.

April 2, 1962.

Karl Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for appellant.

Rex Titus, Richart, Titus & Martin, Joplin, for respondent.

McDOWELL, Judge.

This appeal is by plaintiff from an adverse judgment in her action for damages resulting from an automobile collision.

Plaintiff's petition is in two counts. In the first count she seeks damages for personal injuries in the sum of $10,000.00 and, in the second count, for $200.00 damages to her car. As grounds for recovery she relies upon both primary and humanitarian negligence.

Defendant filed answer and counterclaim. The answer is a general denial of the allegations in plaintiff's petition. In the counterclaim he seeks to recover damages in the sum of $25,000.00, alleging both primary and humanitarian negligence on the part of plaintiff as basis for recovery.

The cause was tried by jury resulting in a verdict and judgment for defendant and against plaintiff on plaintiff's petition and for plaintiff and against defendant on defendant's counterclaim. From this judgment plaintiff perfected her appeal.

The facts produced in evidence show that the collision between plaintiff's 1953 Chevrolet automobile and defendant's Austin-Healey Sprite occurred about 1:00 P.M., October 30, 1959, at the intersection of Seventh and Illinois streets in Joplin, Missouri both drivers were alone in their respective cars.

Seventh street is 60 feet wide, runs east and west, divided into four lanes for moving traffic with a parking lane on each side and is one of the busiest streets in Joplin. Illinois street (also referred to as Murphy Boulevard) is a black top street, 40 feet wide and runs north and south.

Located at the southeast corner of the intersection, running north and south along the east side of Illinois street is a retaining wall. The north end of this wall is 23 feet south of the south curb line of Seventh street and approximately six inches high at the north end and gets higher as it proceeds south. At the time of the accident a used car lot was located east of the retaining wall and south of the sidewalk running along the south side of Seventh street. Between the south curb line of Seventh street and the sidewalk was a grass parkway. The testimony was that this used car lot had cars parked along the east side of Illinois street south of the intersection and along the south side of Seventh street.

At a point 25 feet south of the south curb line of Seventh street a driver of an automobile on Illinois street has an unobstructed view to the east along Seventh street eight or nine blocks.

The intersection, at the time of the accident, was controlled by an electric traffic signal suspended over the center, which was in operation. The complete light cycle was 49 seconds. It was red for north-south traffic on Illinois street for 27 seconds, green for 20 seconds, and on amber for 2 seconds, which overlapped with the green. The cycle was just the reverse for east-west traffic on Seventh street.

Plaintiff testified that at the time of the collision it was real cloudy, gray, but the pavement was dry. The investigating officer testified that he arrived at the scene some eight minutes after the accident and the pavement was wet.

Plaintiff was westbound on Seventh street, driving in the inside lane, immediately north of the center line and defendant was northbound on Illinois street with his left wheels east of the center line of that street.

It was plaintiff's testimony that as she appraoched the intersection there was a car immediately ahead of her; that she was driving at a speed of about 30 miles an hour and slowed down as she neared the intersection; that she observed the traffic light was green on Seventh street and also observed defendant's automobile approaching the intersection from the south. She stated: 'Yes, I did; some distance, but I don't know just how far down the street'. She testified that defendant's car was coming up the street when she first saw it. She gave this evidence:

'Q. Now then, as you neared or reached the intersection, did you look at the light any more? A. Yes, I did. The car just ahead of me went through and so I looked at the south again to see if that car had stopped, and I looked to the north, and there wasn't anything that way, and then I looked at the light, and it was still green, and so I proceeded across'.

Her testimony was that just before she entered the intersection she thought defendant's car had stopped and she entered at a speed of 20 to 25 miles per hour, or possibly 25 to 30 miles per hour; that the rear of her car was about at the center of the intersection when the left rear end was struck by the front of defendant's automobile; that at a speed of 25 miles per hour, under the existing conditions, she could have stopped her car in possibly three car lengths after she got her foot on the brake. Her car was 16 feet long. She stated that the front end of her car was west of the center of Seventh street.

On cross examination plaintiff testified that when she first looked at the light she was possibly half a block east from the intersection and the last time she looked was just before she entered.

In her deposition she testified that she didn't remember whether she had looked at the traffic light at any time before she was two car lengths east of the east edge of the intersection; that the first time she looked at the light she was about a car length back of the other car which was right at the east edge of the intersection.

Defendant's evidence was that he approached the intersection of Illinois and Seventh streets at a speed of about 30 miles per hour; that he reduced his speed to 20 to 25 miles per hour as he entered the intersection and was driving about 20 miles per hour at the time of impact; that the traffic light was green on Illinois street when he was 300 to 350 feet south of the intersection; that he last looked at the light when he was 50 to 60 feet south of the intersection and it was still green; that he did not look at it as he entered the intersection; that after the impact he again looked at the light and observed it changing from green to amber and then to red; that as he neared the intersection he looked to the west and to the north and observed no cars coming; that he did see some motion of cars to the east but didn't think anything about it, and made no effort to determine the location or speed of the vehicles coming from the east; that he proceeded to go through the intersection when a car loomed up in front of him and the impact followed immediately; that at no time did he apply his brakes; that while he attempted to swerve to the left the left wheels of his car were approximately the same distance east of the center line of Illinois street at time of impact as they were when he entered the intersection; that following the accident plaintiff first told officer Riley she didn't know the condition of the light as she entered the intersection, then refuted this statement after learning defendant had signed a complaint against her and stated that the light was green in her favor; that following the accident he talked with a lawyer at the scene who suggested that he, for his protection, should sign a complaint against plaintiff, and this was done to get in the first lick. The complaint was later dismissed.

The evidence was undisputed that the impact occurred in the northeast quadrant of the intersection at a point 35 to 40 feet north of the south curb line of Seventh street and from 17' 3'' to 20' west of the east curb of Illinois street; that the front of defendant's car struck the left rear of plaintiff's automobile and that the damage extended to a point about 4 to 5 feet from the rear end of plaintiff's automobile. There was evidence that defendant's Austin-Healey was equipped with four-wheel hydraulic brakes in good condition; that it is easier to manipulate and turn than larger automobiles and that this is one of the advantages of a small car, the ability to make sharp turns; that defendant had had actual experience in making sharp turns; that as he approached and entered the intersection he knew the only danger from traffic at the intersection was from the east; that he had normal reactions; that his car was in good operating condition, good brakes, and could be stopped faster than the ordinary passenger car.

There was expert testimony based on tests performed at the intersection in question that an Austin-Healey Sprite, after reaching a pre-determined point, at a speed of 25 miles per hour, could be swerved 8 feet to the right in a forward distance of 14' 8'' and 12 feet to the right in a forward distance of 20 feet and that at a speed of 25 miles per hour, after reaching a predetermined point, could be stopped at a distance of 12' 2'' to 14' 7'' after applying the brakes.

Plaintiff, by instruction No. 3, submitted primary negligence of defendant in driving into the intersection against a red traffic light. Defendant countered with instruction No. 10 submitting contributory negligence of plaintiff in failing to maintain a careful lookout for defendant's car and other vehicles and for violation of the traffic light at said intersection, and instruction No. 11 submitting contributory negligence of plaintiff in failing to stop for a red traffic light.

Plaintiff, by instruction No. 2, submitted defendant's humanitarian negligence in failing to stop, slow or turn to the right after defendant saw, or in the exercise of the highest degree of care, should have seen plaintiff in a position of imminent peril.

Defendant countered with instruction No. 12, which hypothesized a finding that plaintiff drove through the traffic light when the light was red or stop for traffic on Seventh street and that after plaintiff's car came...