Catanzaro v. McKay
| Decision Date | 14 March 1955 |
| Docket Number | No. 1,No. 44371,44371,1 |
| Citation | 277 S.W.2d 566 |
| Parties | Frank CATANZARO, Respondent, v. John J. McKAY and Bart McKay, Appellants |
| Court | Missouri Supreme Court |
Walther, Hecker, Walther & Barnard, George W. Cloyd, St. Louis, for appellants.
Lyng, MacLeod & Davidson, Russell N. MacLeod, St. Louis, for respondent.
COIL, Commissioner.
Respondent brought an action for $10,000 for alleged personal injuries and property damage which he averred resulted from a collision between his and appellants' automobiles. (The parties will be referred to as they were designated in the trial court.) Defendants, Bart McKay, owner and father of John McKay, the driver, had verdicts and judgments which were set aside on the ground that the trial court erred in giving an instruction. Defendants appealed from the order sustaining the motion for new trial and contend: that plaintiff failed to make a submissible humanitarian case (the sole negligence upon which the case went to the jury), that the trial court did not err in giving instructions and that, in any event, there was no submissible case against defendant Bart McKay.
The accident occurred in St. Louis at the intersection of Claxton, a 30-foot north and south street, and Lillian, a 35-foot east and west street. Plaintiff drove south on Claxton toward Lillian. Defendant John McKay drove his father's automobile east on Lillian toward Claxton. The front of defendants' automobile struck the right side of plaintiff's automobile under the circumstances to be described.
Plaintiff abandoned all allegations of primary negligence and submitted his case under the humanitarian theory, hypothesizing the failure of the driver defendant to warn, slacken, and swerve. To determine whether there was evidence to support the hypothesis that after plaintiff was in a position of imminent peril, defendant driver, in the exercise of the highest degree of care, could have warned and slackened and swerved (or have done either or any of them) and thereby have avoided the collision, we review the evidence from a standpoint favorable to plaintiff and give him the benefit of any part of defendants' evidence favorable to him and not contradicted by plaintiff's own testimony or not contrary to plaintiff's fundamental theory of recovery. And we give plaintiff the benefit of all reasonable inferences from all the evidence and disregard all of defendants' evidence unfavorable to plaintiff. Ukman v. Hoover Motor Express Co., Mo.Sup., 269 S.W.2d 35, 37. The evidence, so reviewed, justifies this statement.
Plaintiff drove south on Claxton with the left side of his automobile one or two feet west of the center line, and the right side about seven feet east of the west curb line, and, as he approached Lillian, he reduced his speed from 25 to 20 miles per hour. When he reached a place 15 feet north of the north curb of Lillian, traveling at a speed of about 18 to 20 miles per hour, he looked to his right and saw defendants' automobile about 125 feet away traveling east. Plaintiff, looking to the front (south), proceeded at a constant speed and partially across the intersection at an average speed of about 17 miles per hour. When the front end of his automobile had reached a place six feet north of the south curb of Lillian, he heard the screech of brakes, glanced to his right, and saw defendants' car five or six feet away going 35 or 40 miles per hour directly toward him. Plaintiff's 4-door sedan was struck at the right middle center post, knocked southeast, and came to rest against the east curb of Claxton just south of the intersection. Defendants' automobile straddled the center line of Lillian as it approached Claxton and skid marks made by its tires were 20 to 25 feet long. A picture exhibit showed that those skid marks turned sharply to the south just before or at impact. Defendant did not sound a horn.
Plaintiff testified that, going at the speed he was traveling as he entered and partially crossed the intersection, he could have stopped in 25 feet. Plaintiff's testimony as to various positions, speeds, and distances pertaining to his own automobile was definite, but he made it clear that his testimony with reference to positions, speeds, and distances of defendants' automobile consisted of estimates, and that defendants' automobile may have been closer to the intersection when he first saw it or may have been going faster at either time he estimated its speed.
Plaintiff's witness Francis Kinealy, walking eastwardly on the south side of Lillian one block west of Claxton, saw defendants' automobile pass another eastbound car one block west of Claxton. He said that when defendants' car had reached an alley, located about 125 feet west of Claxton, it was going 35 or 40 miles per hour, and thereafter 'I couldn't say what speed he was hitting * * * I knew he was speeding, and then I took my eyes off of it momentarily and I heard the impact * * *.'
Defendant John McKay testified that for the last 125 feet prior to the impact he traveled at a speed of 20-25 miles per hour and saw plaintiff's automobile when defendants' car was 25-30 feet from the intersection, at which time he applied his brakes.
Defendants contend that there was no substantial evidence from which a jury could find, without resort to guess and conjecture, that defendant driver in the exercise of the highest degree of care could have avoided the casualty by warning, slackening, and swerving. We cannot agree. Plaintiff saw defendants' car when it was 125 feet west of the collision point. At that time the front of plaintiff's car was 15 feet north of the north curb of Lillian. (There was testimony concerning obstructions at the northwest corner of the intersection, but there was no question that defendant driver could have seen plaintiff when he was 15 feet north of the north curb of Lillian.) Plaintiff testified that he could stop in 25 feet. Thus, he traveled five feet from the place where he looked and saw defendants' automobile approaching until he reached a place 10 feet north of the north curb of Lillian, after passing which he could not stop short of the path of defendants' automobile as it proceeded eastwardly on Lillian straddling the center line (i. e., about 2 1/2 feet of defendants' car was north of the center line). During the .2 of a second it took plaintiff to travel the five feet from the place of safety to a place of imminent peril, there were no reasonable appearances from which defendant should have believed that plaintiff, during that .2 of a second, had become oblivious of the danger from the approach of defendants' car. It is, therefore, clear that a jury reasonably could have found that plaintiff came into and was in a position of imminent peril when the front end of plaintiff's automobile was 10 feet north of the north curb of Lillian.
This is true, provided that when the front end of plaintiff's car was at the place 10 feet north of the north curb of Lillian, defendant was at a place and traveling at a speed which, if he continued, would result in a collision. Plaintiff testified that his car was 16 feet long. It follows that plaintiff, from the place 10 feet north of the north curb of Lillian, had to travel about 47 feet to be clear of defendant's path as defendant proceeded eastwardly on Lillian straddling the center line. To travel this 47 feet would take plaintiff slightly more than 1.8 seconds. Now, plaintiff's evidence was such that the jury reasonably could find from it that when plaintiff was 15 feet north of the north curb of Lillian (not in imminent peril), defendants' automobile was 125 feet to the west of the right side of plaintiff's car, traveling 40 miles per hour, and increasing speed. While plaintiff went the five feet (from the place 15 feet north of the north curb to the place 10 feet north of the north curb), defendant, at 40 miles per hour, went about 11 feet. The jury reasonably could find that during this time defendant increased his speed to about 43 miles per hour so that at the time plaintiff was 10 feet north of the north curb of Lillian defendant was traveling 43 miles per hour and was 113 feet away from the right side of plaintiff's car. In the 1.8 seconds it would have taken plaintiff to clear defendant's path, defendant would have traveled the 113 feet to the right side of plaintiff's car. So that it is apparent that the jury reasonably could find that plaintiff came into and was in imminent peril when the front of his automobile was 10 feet north of the north curb of Lillian. And, as we have seen, defendant then was traveling 43 miles per hour and was 113 feet away.
There was no direct evidence of reaction time, so that we shall notice defendant's reaction time as three fourths of a second. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785. It was reasonable for the jury to conclude that defendant could have stopped any increase of speed during the three fourths of a second reaction time and could have been (by the end of reaction time) traveling at 43 miles per hour. In that event he would have traveled during the three fourths of a second about 47 feet. So that, after reaction time, the defendant could have been in the exercise of the highest degree of care, 66 feet and 1.05 seconds away from the right side of plaintiff's car. In that time at 43 miles per hour, defendant would have traveled not more than the 66 feet. Consequently, it is apparent that if defendant had slackened his speed at all plaintiff would have cleared defendant's path. And certainly it is obvious that any slackening and swerving would have avoided the collision. We think under the circumstances a jury reasonably could have found that if defendant, after plaintiff came into imminent peril, had decreased his speed instead of increasing it (as the jury could find he did), the collision would have been avoided. And indeed the...
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