Carter v. Consolidated Cabs, Inc.

• Decision Date: 08 January 1973
• Docket Number: No. 57339,No. 1,57339,1
• Parties: John CARTER, Respondent, v. CONSOLIDATED CABS, INC., and Chat McCoy, Appellants
• Court: Missouri Supreme Court

Page 39

490 S.W.2d 39

John CARTER, Respondent, v. CONSOLIDATED CABS, INC., and Chat McCoy, Appellants.

No. 57339.

Supreme Court of Missouri, Division No. 1.

Jan. 8, 1973.

Motion for Rehearing or for Transfer to Court En Banc Denied

Feb. 12, 1973.

Morris, King, Stamper & Bold, Randall Vanet, Kansas City, for respondent.

Michael J. Maloney, of Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for appellants.

HIGGINS, Commissioner.

Action for damages for personal injuries in which defendants appeal from verdict and judgment for plaintiff for $80,000. (Appeal taken prior to January 1, 1972.)

Appellants contend the court erred in submitting plaintiff's case under the humanitarian doctrine 'because plaintiff failed to prove (1) that defendant McCoy saw or in the exercise of the highest degree of care could have seen plaintiff in a position of imminent and immediate peril of being struck and injured in time thereafter with safety to defendant McCoy and all others and with the means and appliances at hand to have swerved; (2) that defendant McCoy by such a swerve could have avoided injury to plaintiff; (3) that defendant McCoy was negligent.'

This action arose from an occurrence around 12:30 a.m., August 11, 1967, just west of the intersection of 39th Street and Indiana Avenue in Kansas City, Missouri. Indiana runs north and south; 39th carries one lane of traffic each direction and has one parking lane on each side of the street. A 10-foot-wide crosswalk crossed 39th, the eastern edge of which was the curb line of Indiana. East-west traffic crossing Indiana was controlled by a blinking yellow traffic signal; north-south traffic crossing 39th was controlled by a blinking red signal.

Plaintiff, a pedestrian, was attempting to cross 39th Street by walking south at a point 26 feet west of the intersection. He was a porter in a drugstore on the northwest corner of the intersection, and he and a clerk in the store, Anthony J. Cusumano, had locked the store and were proceeding south toward a parking lot on the southwest corner of the intersection, where the clerk's car was parked.

A taxicab, owned by defendant Consolidated Cabs, Inc., was being operated by Consolidated's agent, defendant Chat McCoy, westerly on 39th Street. There was no other traffic in either direction and no cars were parked on 39th. Defendants' cab and plaintiff came into collision at an agreed point of impact 10 feet south of the north curb line of 39th and 26 feet west of the west curb line of Indiana.

As plaintiff and Mr. Cusumano were proceeding to cross 39th, Mr. Cusumano stopped near the curb with plaintiff somewhere to his right when Mr. Cusumano first observed the cab. The cab was then in the middle of the intersection proceeding at 18 to 20 miles per hour. Mr. Cusumano shouted a warning to plaintiff, the cab skidded to a halt, plaintiff and the cab collided in the area of the right front wheel of the cab. Plaintiff fell or was knocked backward as a result of the collision; the cab skidded two or three feet beyond the point of impact and stopped. Total skid of the cab was 24 feet. Such marks began approximately in the center of the crosswalk or a little west of the center of the crosswalk. The wheels of the cab were locked by braking and the skid marks were straight.

The intersection was well lighted, pavement was dry, and 39th Street was 10 to 15 per cent upgrade east of the intersection. Officer Weidemeyer computed McCoy's speed under the circumstances at 17.7 miles per hour based upon average reaction time of three fourths of a second, which McCoy claimed he possessed; and testified that a car would travel 20.6 feet at 18 miles per hour.

Police Sergeant McKinney stated a car traveling at 20 miles per hour would travel 36.8 feet before stopping in combined reaction time distance and braking distance.

Police Sergeant Maxwell performed skid tests at the scene and determined coefficiency of friction at 90 per cent, and calculated McCoy's speed, using average reaction time, at approximately 19 miles per hour based upon the overall skid distance of 24 feet.

Sergeant Maxwell also stated the cab could have swerved two feet in 10 feet, four feet in 14 feet, and 10 feet in 25 feet of the skid distance.

Plaintiff recalled the warning given by Mr. Cusumano but remembered little else about the occurrence.

Mr. McCoy saw plaintiff attempting to cross the street and thought plaintiff did not see him and the cab. He did not attempt to swerve; instead, he applied his brakes. He agreed that he stopped in plaintiff's path and that if he had swerved he would have gotten farther away from plaintiff.

The physical facts show the distance from the point of impact back to the middle of the intersection to be 47 feet and the distance from point of impact to east edge of the intersection to be 68 feet. Had defendant responded to the danger of striking plaintiff when in the middle of the intersection, he would have used 20.6 feet during reaction time and would have had 26.4 feet in which to swerve, during which he could have swerved more than 10 feet to his left. Had defendant observed the danger when at the east edge of the intersection, he would have used 21 feet during reaction, one half of the intersection, and still would have had one half the intersection in which to swerve left into the eastbound lanes of 39th Street and clearly have avoided plaintiff.

That defendant could have seen plaintiff as far back from impact as the east edge of the intersection is shown by defense counsel's admission in opening statement that Mr. McCoy first saw Mr. Cusumano as he, McCoy, started into the intersection, and he saw Mr. Cusumano before he saw plaintiff who was to the right of Mr. Cusumano.

Mr. Cusumano first saw the cab when he was about two feet off the curb at which time plaintiff was a step and a half ahead of him and to his right. This could have placed plaintiff approximately five or six feet into the street and north of impact by four or five feet at a time when Mr. McCoy was east of impact by 68 to 75 feet, with unobstructed visibility.

Plaintiff's obliviousness was shown by Mr. McCoy's admission that plaintiff was unaware of the cab and kept walking toward it, and by plaintiff's failure to heed the warning of Mr. Cusumano.

Similarly, plaintiff was in a zone of peril at all times after he was five to six feet into the street and four or five feet from impact, all of which was in defendant's path if he continued in the northern lane of 39th Street without swerving to his left.

Accordingly, all the elements of a humanitarian case, Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, are present under the evidence in this case, and defendants' contention to the contrary is without merit. For support in the cases, see, e.g., Leap v. Gangelhoff, Mo., 416 S.W.2d 65, 67--68(1--6); Dillon v. Hogue, Mo.App., 381 S.W.2d 599; Triller v. Hellwege, Mo., 374 S.W.2d 104; Losh v. Benton, Mo., 382 S.W.2d 617; McCarthy v. Wulff, Mo., 452 S.W.2d 164; Williams v. Ricklemann, Mo., 292 S.W.2d 276; Murphy v. Land, Mo., 420 S.W.2d 505. By comparison, appellants' citations, Elam V. Allbee, Mo.App., 432 S.W.2d 379, Dister v. Ludwig, Mo., 240 S.W.2d 694, Vietmeier v. Voss, Mo., 246 S.W.2d 785, McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, and Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, may be distinguished on their facts.

Appellants also claim the testimony of Mr. Cusumano should not be considered with respect to the position of plaintiff because it was 'contrary to the physical facts.' See Davis v. St. Louis Public Service Co. and Adelsberger v. Sheehy, supra. Suffice to say that Mr. Cusumano was thoroughly deposed, examined, cross-examined, and rehabilitated; and discrepancies in his testimony, if any, were for resolution by the jury as judges of the credibility of the witnesses.

Plaintiff's case was submitted by Instruction No. 3, MAI 17.14: 'Your verdict must be for plaintiff, whether or not plaintiff was negligent, if you believe: First, plaintiff was in a position of immediate danger of being injured and was injured, and Second, defendant Chat McCoy knew or by using the highest degree of care could have known of such position of immediate danger, and Third, at the moment when defendant Chat McCoy first knew or could have known of such position of immediate danger, he still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care he could have avoided injury to the plaintiff by swerving, and Fourth, defendant Chat McCoy negligently failed to so swerve, and Fifth, plaintiff's injury directly resulted therefrom.'

Defendants' converse of plaintiff's case was submitted by Instruction No. 4, MAI 33.06(6): 'Your verdict must be for defendants if you do not believe: First, defendant Chat McCoy knew or by using the highest degree of care could have known of plaintiff's position of immediate danger, and Second, at the moment when defendant Chat McCoy first knew, or by using the highest degree of care could have known, of plaintiff's position of immediate danger, he then had enough time by using such care to have avoided injury to plaintiff by swerving, and Third, defendant Chat McCoy had the means available to him to have avoided injury to plaintiff by swerving, and Fourth, defendant Chat McCoy by using the highest degree of care could have avoided injury to plaintiff by swerving without either endangering himself or others, and Fifth, plaintiff sustained damage as a direct result of defendant Chat McCoy's conduct.'

In addition, the court, upon plaintiff's request, gave a definition, Instruction No. 5, MAI 11.01: 'The term 'highest degree of care' as used in these instructions means that degree of care that a very careful and prudent person would use under the same or similar circumstances.'

No...