Cosentino v. Heffelfinger
| Citation | 229 S.W.2d 546,360 Mo. 535 |
| Decision Date | 10 April 1950 |
| Docket Number | No. 1,No. 41452,41452,1 |
| Parties | COSENTINO v. HEFFELFINGER |
| Court | United States State Supreme Court of Missouri |
Keith Martin, Harry C. Clark, Louis W. Krings, Kansas City, and Walter A. Raymond, Kansas City, for appellant.
Lyman Field, Clay C. Rogers, Reed O. Gentry, Kansas City, for respondent.
VAN OSDOL, Commissioner.
Action for $10,450 for personal injuries, and property damage, sustained by plaintiff in an automobile collision at the intersection of Meyer Boulevard and Rockhill Road, public streets in Kansas City. Defendant stated a counterclaim for personal injuries and damage to property. The case was tried without the services of a jury. The trial court found the issues in favor of defendant on plaintiff's claim (and for plaintiff on defendant's counterclaim). Plaintiff has appealed from the ensuing judgment.
Plaintiff had alleged, among other allegations of specific primary negligence, the primary negligence of defendant in driving into the intersection at a high and dangerous rate of speed when defendant could not see traffic approaching the intersection from his right; and plaintiff had alleged negligence of defendant under the humanitarian rule in failing to stop, slacken speed, sound a warning, or swerve. Defendant by answer alleged the contributory negligence of plaintiff in failing to 'keep a reasonably careful and vigilant lookout' (and by counterclaim, defendant had alleged plaintiff was guilty of specific primary negligence and negligence under the humanitarian rule).
The trial court found the issues in favor of defendant on plaintiff's claim on the theory the evidence showed plaintiff was contributorily negligent; and, upon the issues of humanitarian negligence of defendant, the trial court was of the view the evidence was insufficient to justify the finding defendant could have acted in time to have avoided plaintiff's injury after plaintiff came into imminent peril. The trial court found plaintiff 'has admitted he saw defendant's car when it was 90 feet to the north of him, and that thereafter he was fully apprised of the approach of said vehicle toward and into the intersection and estimated the speed at which it was traveling.'
Meyer Boulevard, an east-west street, has a roadway 50 feet wide from curb to curb; and Rockhill Road, a north-south street, has a roadway 40 feet in width. The 'corners' at the intersection are 'broad sweeping curves.' The diagonal distance across the 'broad sweeping' curved intersection is 136 feet. A 'Slow' sign is situate on the south side of Meyer Boulevard, 75 feet west of the curb line, if extended, of Rockhill Road; and a 'Slow' sign is situate on the west side of Rockhill Road, 90 feet north of the north curb line, if extended, of Meyer Boulevard. One moving southwardly on Rockhill Road toward the intersection comes up a decided grade 'reaching its peak' about 25 or 30 feet north of the north crosswalk of Meyer Boulevard. Meyer Boulevard is 'downgrade' to the eastward. The intersection is unusually free of obstructions. There is no building near the northwest corner of the intersection.
The collision occurred about 4:00 p. m., December 5, 1946. Plaintiff, a painter and interior decorator, was driving his 1936 Model two-door Chevrolet sedan eastwardly on Meyer Boulevard. Four of plaintiff's fellow workmen were riding in the car; they were going home after their work for the day. The sun was shining; the atmosphere was clear; and the streets were dry. The brakes on plaintiff's car were in good condition.
Approaching within two blocks of the intersection of Meyer Boulevard and Rockhill Road, plaintiff stopped at stop signs in front of a church and a school, his last stop being in a block west of Rockhill Road. Plaintiff testified that, as he approached the 'Slow' sign on the south side of Meyer Boulevard, he slowed to 2 or 3 miles an hour. He looked northwardly, and saw no car approaching. He continued eastwardly until he was about 20 feet west of the west curb of Rockhill Road (the 'west curb' considered as if projected squarely up to the corner of the intersection), and at that time he saw defendant's car 'up about' the 'Slow' sign on Rockhill Road some 85 or 90 feet north of the north curb line of Meyer Boulevard. Plaintiff, increasing speed, continued on into the intersection. One of the passengers riding in plaintiff's car called, 'Look out, Robert.' Plaintiff then looked northwardly and again saw defendant's automobile and 'tried to avoid it.' This was the 'third time' he had seen the approach of defendant's car. Plaintiff testified that, at the time, his automobile was moving at a speed of 8 or 10 miles an hour. He turned his car 'to the south slightly' just as the collision occurred.
On cross-examination plaintiff testified as follows,
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A police officer, who had arrived at the intersection a few minutes after the collision, testified a diagram made by him at the time indicated plaintiff's car had proceeded 10 feet and defendant's car 31 1/2 feet into the intersection when the cars collided. The officer's report disclosed a notation that plaintiff was traveling 'too fast for conditions.' The notation was based on the fact that defendant's automobile came to rest after the collision, 'a considerable distance east of the point of impact.' The witness thought the force of the impact had carried the defendant's automobile to the eastward; it was 'actually out of the intersection.'
A passenger in plaintiff's automobile testified plaintiff slowed down to 5 or 6 miles per hour at the 'Slow' sign, then shifted into 'second the increase speed.' The street was clear of traffic. When the plaintiff's automobile was about halfway in the intersection, 'a car was just piled on us then.' Plaintiff's car was moving 12 or 13 miles per hour. Defendant's car was moving 35 miles per hour, 'maybe a little faster.' Plaintiff was knocked unconscious by the impact, and his automobile rolled about 400 feet on down 'towards Troost' before one of the passengers could 'hit the brakes.' This witness said the collision occurred in the southeast quadrant of the intersection.
Another passenger in plaintiff's automobile, who was injured in the collision, testified for defendant. The witness stated plaintiff, approaching the intersection, did not slacken speed and 'continued on at 25 miles an hour'; defendant was moving 'not to exceed 25 mile'; and 'if anything,' defendant entered the intersection first. This witness had settled with an 'insurance company' and, it is to be inferred, he was to be paid by defendant 'for appearing in court.'
Defendant testified that, moving at 25 miles per hour, he had approached the intersection from the north. He was driving his 1940 Model Master DeLuxe Chevrolet sedan. He said that, when he approached the 'Slow' sign 90 feet north of the intersection, he decreased speed and looked eastwardly, and then to the westward. When he last looked westwardly he was about 20 feet south of the 'Slow' sign. He did not sound a warning signal. He drove on into the intersection at about 20 miles per hour without again attempting to look for traffic coming from the west.
The 'right front' of defendant's automobile struck the left front 'quarter panel' and door of plaintiff's car.
Defendant further testified that in approaching the intersection he was about four feet west of the center line of Rockhill Road. The sun was low in the southwest at the time, and, when he was approximately 20 feet south of the 'Slow' sign, the sun's bright rays struck the windshield and blinded him so that he 'apparently' could not see traffic coming from the west. He was 'centering' his attention on school children moving eastwardly across Rockhill Road. He became aware of some 'object or the shadow on that object' on his right. He 'braked severely' and swung his car to the eastward. Defendant said his inability to see plaintiff's automobile was 'a contributing factor to the accident.'
There were skid marks made by defendant's car on the pavement. The marks indicated defendant's car had made an eastward turn. The length of the marks was not shown. The testimony of witnesses for plaintiff and defendant was in conflict on the question--who entered the intersection first. Some of the witnesses stated (and the trial court found) the point of collision was a little, 'approximately three feet,' west of the center line of Rockhill Road and approximately six feet south of the center line of Meyer Boulevard.
It is the contention (1) of plaintiff-appellant that defendant's own testimony (that he had driven into the intersection at twenty miles per hour without sounding a warning and while so blinded by the sun that he could not see traffic coming from the west) was a binding judicial admission of willful, wanton and reckless conduct, and consequently the alleged contributory negligence of plaintiff was not a defense. In the alternative, plaintiff-appellant further contends (2) the trial court erred in holding plaintiff was guilty of...
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