Cornelius v. Shields
| Decision Date | 08 July 1963 |
| Docket Number | No. 49436,No. 2,49436,2 |
| Citation | 369 S.W.2d 209 |
| Parties | Lori CORNELIUS, by Next Friend, Elmer Cornelius, Respondent, v. Wayne Frederick SHIELDS, Appellant |
| Court | Missouri Supreme Court |
Buehner & Thomas, Joplin, for appellant.
Gerald H. Lowther and James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for respondent.
BOHLING, Commissioner.
Lori Cornelius, by her next friend, Elmer Cornelius, her father, secured a $25,000.00 judgment against Wayne F. Shields for personal injuries sustained when struck by his automobile. We refer to Lori as plaintiff. Defendant has appealed, contending that the refusal of instruction No. 7, tendered by him, was reversible error. There is no contention that plaintiff did not make a case on the submitted issues; that is, that defendant negligently failed to keep a proper lookout, or negligently failed to stop or swerve his automobile and avoid striking plaintiff.
Plaintiff was injured between 5:00 and 5:30 p. m. Sunday, August 21, 1960. Mr. Cornelius, with his family, stopped at the P. C. Carlock fruit farm about 2 1/2 miles northeast of Greenfield, Missouri, on the north side of Highway H. Highway H is an east-west road in front if and is straight for 1/8 of a mile on each side of the Carlock residence. The blacktop pavement is 19, the south shoulder is 4, and the north shoulder is 6 feet wide. The land is practically level with a small dip or ditch for drainage north of the highway and west of the Carlock driveway. Mr. Cornelius was driving a Ford automobile, about 17 feet long. He parked the car about four feet west of a large tree west of the Carlock driveway, with its front end about even with the tree. Testimony put this tree 36 feet north of the pavement by measurement. Mr. Cornelius walked north to talk to Mr. Carlock. Plaintiff, 2 years and 20 days old, went with him. Mrs. Cornelius was seated on the front seat, and Carlene, about 13, John, about 12, and Dale, about 9, were on the rear seat. Plaintiff, who had an ice cream cone, soon returned to the west side of the Cornelius car. When plaintiff failed to come around to the east side, Mrs. Cornelius looked to see if she was getting in the west side of the car and, looking through the rear glass, saw her standing in the middle of the pavement as if headed south across the road. She did not know whether plaintiff walked or ran out onto the road. Mrs. Cornelius heard a westbound car approaching. It was about 170 or 200 feet east of plaintiff. She placed defendant's speed at 50 to 60 miles an hour, testifying defendant's car struck plaintiff within three or four seconds. There was testimony that defendant did not slacken speed, swerve or sound his horn, and plaintiff was knocked through the air. Carlene testified she saw plaintiff two or three feet north of the pavement. She then saw a westbound car coming around a curve. She looked again and plaintiff was standing in the middle of the road. Plaintiff's ice cream cone was on the highway after she was struck. There were 30 feet of skid marks east of where it lay and plaintiff lay 39 feet west of the ice cream cone.
The evidence for plaintiff was that a westbound motorist had a clear view of 20 or more feet north of the pavement when 200 feet east of where plaintiff was struck, that at the speed defendant was traveling he could stop in 59 feet plus reaction time, which was established at 3/4ths of a second.
Defendant and his wife en route in his 1957 Renault automobile from Greenfield to their home in Springfield. The car was 5 feet wide and in good mechanical condition. They placed defendant's speed at 35 to 40 m. p. h. Defendant first saw plaintiff at the instant his wife screamed. Plaintiff was then at the edge, not more than a foot north, of the pavement, and defendant was 40 to 45 feet east of her. She was running southwesterly across the highway. She was west of the Cornelius car, which was west of the large tree west of the Carlock driveway. Defendant's judgment was not the rear of this car was 5 of 6 feet north of the edge of the pavement. Defendant's wife acreamed when she first saw plaintiff, at the edge of the pavement and running into the road. Defendant pushed down on his foot pedal as hard as he could, but it 'wasn't hard enough,' and his automobile, between its center and left headlight, struck plaintiff while traveling 10 to 15 m. p. h. His car laid skid marks 59 1/2 feet long, starting near the center of the westbound lane and veering slightly to the right. It was completely on the highway when he stopped. He stated there was nothing to keep him from seeing plaintiff while she was on the north shoulder of the highway. He could not say he saw her while she was in the yard. Plaintiff was not plummeted through the air, but when the Renault was stopped she was thrown forward and rolled on the pavement for about 5 or 10 feet in front of his car.
Defendant testified he made no attempt to swerve his automobile or sound its horn.
As stated, plaintiff submitted her case in the disjunctive, predicating a verdict on findings that defendant was negligent in not keeping a proper lookout and discovering plaintiff's presence on or near said highway in time to have prevented his automobile from striking plaintiff, or in failing to stop or swerve his automobile when he should...
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