Daniels v. Smith

• Court: Missouri Supreme Court
• Writing for the Court: DALTON
• Citation: Daniels v. Smith, 323 S.W.2d 705 (Mo. 1959)
• Decision Date: 11 May 1959
• Docket Number: No. 1,No. 46928,46928,1
• Parties: D. C. DANIELS, Plaintiff-Respondent, v. Audrie F. SMITH, Defendant-Appellant

Page 705

323 S.W.2d 705

D. C. DANIELS, Plaintiff-Respondent, v. Audrie F. SMITH, Defendant-Appellant.

No. 46928.

Supreme Court of Missouri, Division No. 1.

May 11, 1959.

John D. Hasler, St. Louis, for defendant appellant.

Joseph D. Feigenbaum and Max M. Librach, St. Louis, for respondent.

DALTON, Judge.

Action for damages for personal injuries alleged to have been sustained when plaintiff, a pedestrian in a public street, was struck by defendant's automobile and severely injured. The cause was submitted solely on defendant's alleged humanitarian negligence in failing to swerve the automobile sufficiently to avoid striking the plaintiff. Verdict and judgment were for plaintiff for $20,000 and defendant has appealed.

Error is assigned on the court's action in overruling defendant's motion for a directed verdict presented at the close of plaintiff's evidence and at the close of all the evidence, and in giving Instruction No. 1 and No. 5 at the request of the plaintiff. The error, if any, in overruling the motion at the close of plaintiff's evidence was waived when defendant offered evidence in his own behalf, hence we need not further consider the assignment. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607.

In order to determine whether the court erred in ruling the motion presented at the close of all the evidence a review of the evidence favorable to plaintiff is required. We shall state the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences arising therefrom and disregard defendant's evidence unless it aids the plaintiff's case. Mincielli v. Sloan's Moving & Storage Co., Mo.Sup., 303 S.W.2d 17, 19; Wattels v. Marre, Mo.Sup., 303 S.W. 9, 10.

Plaintiff, a fireman for the St. Louis Fire Department, but off duty at the time, was struck and injured about midnight on April 1, 1957, as he and a companion, L. Z. McCowan, were standing near the center of Delmar Boulevard in St. Louis at a point about one-half block west of Vandeventer Avenue. Delmar is an east-west paved street and, at the point in question, is fortythree feet in width. At the time mentioned, automobiles were parked at the curb on each side of the street. Plaintiff had parked his automobile at the south curb, headed east, and he and his companion were crossing to a business place located on the north side of Delmar. The next intersecting street to the west was Sarah Avenue, some two blocks distant. The pavement was dry, the weather mild and clear, the street lights were on and they gave a 'pretty good light' in the area where plaintiff and his companion were crossing.

No automobiles were seen moving in either direction on Delmar at the time plaintiff and his companion started across. When they reached the white line in the center of Delmar, they saw traffic approaching on the north side of the street, going west from the Vandeventer intersection, and both stopped on the white center line. Some of these westbound automobiles were 'pretty close' to the white line causing plaintiff and his companion to consider moving back south. Accordingly, both of them looked west and didn't see any traffic very close and, as they looked west, both of them stepped backward off of the white line. Plaintiff stepped back one full step to a point about two feet south of the center line, while his companion stepped back to a point about one foot south of the white center line. Plaintiff stood about two feet east of his companion. When plaintiff stepped back, the lead car of the westbound group was about twenty-five feet away to the east and defendant's eastbound car was about one hundred feet to the west of the place where plaintiff was standing.

When plaintiff and McCowan looked west, while they saw defendant's automobile approaching, it was a 'good way up the street' and its lights were on. Plaintiff could see the outline of the driver's face and he appeared to be looking straight at plaintiff and his companion. The automobile appeared to be about five or six feet out from the left hand side of the automobiles parked at the south curb of Delmar.

As soon as plaintiff and his companion had looked west and stepped back south of the center line and had observed defendant's automobile and its driver, they both looked back to the east and stood watching the westbound automobiles moving on the north side of the street. One of these automobiles passed within one foot of the center line of Delmar. Some eight or nine westbound automobiles were approaching or passing. Plaintiff was standing still in the mentioned position not more than two feet south of the white center line of the street, when he was struck and knocked down by defendant's automobile. The automobile was stopped within about one car length after plaintiff was hit. The automobile did not strike plaintiff's companion who stood one foot closer to the center line of Delmar. At the time plaintiff was hit, he had on a pink shirt, light pants, a 'bluish' or light blue coat and a grey hat.

Since some of defendant's testimony tends to support the plaintiff's case, we shall review a portion of it. Defendant said he was operating his automobile in his proper lane on the south side of Delmar going east at about twenty to twenty-five miles per hour. He had not been required to stop at Sarah Avenue and had proceeded on east on Delmar. His automobile was about in the center of the space between the parked cars on the south side of Delmar and the white line in the center. Defendant saw plaintiff and his companion leave the south side and walk at a 'medium walk' to the center of Delmar and stop. Defendant had slowed his automboile from twenty or twenty-five miles per hour down to fifteen miles per hour by the time he was thirty-five to forty feet west of where the men were standing. When the men stopped at the center line, the defendant saw plaintiff turn and look toward him. Defendant's headlights were on and he could plainly see plaintiff's face. Plaintiff was further away from defendant than the person with plaintiff. Plaintiff's companion also looked at defendant, but just turned his head, while plaintiff moved his whole body. Defendant did not notice whether plaintiff changed his position at that time. 'It just seemed like he just turned and looked at me and I was watching him.' Defendant had his foot on the brake to stop, if he had to, but he wasn't actually braking the car at the time.

Defendant was able at no time to estimate the distance between the left side of his automobile and the center line of the street. He said he was watching the two men and had plenty of room to pass them on the south side. As to what next happened, the defendant testified: 'Well, they turned around and looked at the other way and they stood there and I naturally pulled so I could miss them, didn't have no idea of hitting them because I was far enough away from them, I couldn't. The cars were coming and one car here had just passed me and I was passing in behind him (plaintiff) like anyone was driving along and just as I got to him, I don't know whether he stumbled, whether he staggered or whether he lost his balance, anyhow, I didn't know a thing until I had hit him and that is all I can say. * * * They stopped in the center of the street and I seen them. * * * Mr. Daniels turned his body and faced me and I looked and he turned back, and I then I assumed that he was set and the cars had started passing him in front and I say, I pulled to the back and passed him in the back, and just as I got to him, I had passed Mr. McCowan and he stepped right square in front of my car * * * and done so sudden I couldn't realize it. * * * Naturally I kept my eye on them. * * * I never even thought about him stepping back. * * * I was so far enough away from him, I figured I had plenty of room to pass him. * * * Well, all I can say, I was in the center about half way in my center line from the cars parked on my right and him on my left and if, and I think, because I don't know, I know I made a jog to miss him here and how he got in front of my car, I will never know yet to this day. * * * I was going in behind him, and what made him move back in front of me, I have never found out, figured out yet to this day, and how he got there, I don't know. * * * I never saw the man step back until after I hit him and I couldn't realize how he ever got back there.' (All italics ours.)

Defendant further testified, several different times, that although he was watching to the front at all times, and watching plaintiff and his companion, he never at any time saw them move off of the center line of the boulevard. Defendant said his speed was not over five or ten miles per hour when he struck the plaintiff; and that the left front fender and headlight struck plaintiff and his body went up on the hood.

It is apparent that the jury could infer and find from defendant's own testimony that defendant saw and knew that plaintiff was apparently oblivious of any danger; that plaintiff and his companion were looking in the opposite direction when plaintiff was struck; that, regardless of whether plaintiff moved or didn't move, defendant did turn his automobile to the right intending to pass behind plaintiff, but did not turn far enough; that defendant himself didn't see or know how plaintiff came to be in the path of defendant's automobile, but that he did drive his automobile directly into plaintiff and injure him. A jury could disbelieve that part of defendant's testimony concerning any last second movement of plaintiff, which movement defendant admits he did not see and, instead, believe plaintiff's testimony and the testimony of his companion, that they had not moved from the location they had assumed when defendant's automobile was some one hundred feet away to the west.

If defendant was operating his automobile at fifteen miles per hour when he was thirty-five to forty feet from plaintiff, it...