Burns v. Maxwell

• Decision Date: 11 September 1967
• Docket Number: No. 52372,No. 2,52372,2
• Citation: 418 S.W.2d 138
• Parties: Olivia BURNS, Respondent, v. David A. MAXWELL, Appellant
• Court: Missouri Supreme Court

Page 138

418 S.W.2d 138

Olivia BURNS, Respondent, v. David A. MAXWELL, Appellant.

No. 52372.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1967.

William P. Carleton, and Sherman Landau, St. Louis, for respondent.

Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for appellant.

PRITCHARD, Commissioner.

Appellant claims that the trial court abused its discretion in granting respondent a new trial on the ground that the verdict of the jury was against the weight of the evidence because respondent did not make a submissible case under the humanitarian doctrine. The sole assignment of negligence under that doctrine was failure to slacken speed so as to avoid the collision (MAI No. 17.15).

Respondent's claim for damages for personal injuries, in the amount of $25,000, arose out of a collision between two automobiles on April 29, 1963, at the intersection of Spring Avenue and Natural Bridge in the city of St. Louis.

Respondent testified that after ending her work as an assembler for Carter Carburetor Company, 2840 North Spring, she drove a 1957 Lincoln two-door convertible north on Spring about for or five blocks to Natural Bridge. There was a stop sign on Spring as it made a 'T' intersection with Natural Bridge. Respondent edged her way up to the stop sign behind four or five preceding cars. She then stopped at the south curb of Natural Bridge and looked to her left and saw two cars coming east on Natural Bridge near Prairie Avenue, which was about 537 feet away. It was misting rain at the time. On the southwest corner of the intersection was a used car lot, and along it, just west of Spring, there was no parking for about 40 or 50 feet. Natural Bridge was eight lanes wide, and at the intersection with Spring was practically level. Eastward toward Grand Avenue, there was a slight upgrade. There was a double yellow line for the center of Natural Bridge and white lane lines for the cars. When she looked to her left respondent saw the two cars coming east in the second and third lanes ('the first one was close to the parked car lane and the other in the other lane'; one car was in the third lane over from the center lane and the other in the second lane over from the center lane; the lane immediately next to the center lane was open with no cars in it). She then looked east and saw two cars just crossing Grand Avenue, then looked to her left again and saw the two cars midway (in the center of the block) between Prairie and Spring, over 250 feet away. She started out after looking the second time to the left and was curving to the left to make the left turn into Natural Bridge. As she started across her speed was between 5 and 10 miles per hour. When respondent's front wheels were over the yellow line, the front end of appellant's car collided with her left rear fender, as appellant told her afterward. Respondent's convertible was yellow with a black top, and she heard no born sounded by any eastbound vehicle.

According to Police Officer William D. Smith, who investigated the collision, Natural Bridge was approximately 90 or 92 feet wide; there were three eastbound lanes on its south side, and a curb lane for parking. At the intersection, Spring Avenue was approximately 36 feet wide, with one north and one south lane for traffic, and parking areas on both sides. He found the left rear fender of respondent's car damaged and appellant's Chevrolet was damaged on its left front, and appellant told him that as he was eastbound on Natural Bridge approaching Spring he was going about 30 miles per hour in the center lane. On deposition, appellant testified that he had slowed to 25 miles per hour when vehicles (two) in front of him braked and slowed and when respondent suddenly appeared in view. His speed at impact was about 20 miles per hour. When respondent's car came to a stop it was almost to the north curb of Natural Bridge. He estimated respondent's car was going 5 to 10 miles per hour when he first saw it.

Appellant's version of the facts preceding the collision differed from that of respondent. He testified that he was following a car length behind two other vehicles in lanes to his either side and did not see respondent crossing in front of him until he was one car length away at 25 miles per hour. He had slowed from 30 miles per hour to 25 miles per hour when he saw the vehicles ahead also slowing. According to appellant it was raining hard at the time and his windshield wipers were on. The car which was on appellant's left stopped (short of respondent); the car on his right swerved around her. In determining the submissibility of respondent's case, her evidence and legitimate inferences therefrom are to be regarded as true and that of appellant is to be disregarded unless it aids the respondent. Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 870(6).

These parties were on collision courses at their respective distances and speeds from the point of impact. (At respondent's slowest speed of about 5 miles per hour, and appellant's speed of 30 miles per hour, each would have used between five and six seconds to reach the point of collision.) According to respondent, when s...