Davidson v. King

• Decision Date: 07 January 1958
• Docket Number: No. 7533,7533
• Citation: 309 S.W.2d 132
• Parties: Agnes DAVIDSON, Plaintiff-Appellant, v. M. E. KING, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 132

309 S.W.2d 132

Agnes DAVIDSON, Plaintiff-Appellant, v. M. E. KING, Defendant-Respondent.

No. 7533.

Springfield Court of Appeals, Missouri.

Jan. 7, 1958.

Motion for Rehearing or to Transfer Overruled Jan. 29, 1958.

Bloodworth & Bloodworth, Hyde & Purcell, Poplar Bluff, for plaintiff-appellant.

Blanton & Blanton, Sikeston, for defendant-respondent.

STONE, Presiding Judge.

In this intersectional collision case, plaintiff had a nine-man jury verdict for $2,700; but, upon defendant's after-trial motion, the court set aside the judgment for plaintiff and entered judgment for defendant. On this appeal by plaintiff, the sole issue is whether plaintiff made a prima facie case on the only negligence submitted to the jury, i. e., defendant's alleged negligence under the humanitarian doctrine in failing to stop and to swerve. This opinion is written after rehearing granted upon defendant's motion.

The accident occurred about 9:30 A.M. on May 29, 1954, a clear, dry day, at the intersection of Pine, an east-and-west street, and Ninth, a north-and-south street, in the City of Poplar Bluff, Missouri. Pine Street, a heavily-traveled thoroughfare over which U. S. Highway 60 is routed, is forty feet seven inches wide from curb to curb. Ninth Street is twenty-one feet one inch in width. Both streets are paved. Traffic at this intersection is regulated by an overhead automatic traffic control signal light. Plaintiff, forty-two years of age, accompanied by her husband and nineteen-year old son, was driving a 1941 Chevrolet sedan west on Pine. Defendant (whose age is not given), accompanied by his wife, fifty-nine years of age, was driving his 1950 GMC pickup south on Ninth. The point of collision was 'right almost under' the traffic control signal light, 'just about the center of the intersection.'

The initial factual dispute was as to which driver had the green or 'go' light. Plaintiff's version was that, after having stopped on the north side of Pine Street some one hundred fifty feet east of the intersection to permit her daughter and son-in-law to alight at a market, the traffic control signal light 'changed from yellow to green just as I started up' and remained on green until the collision. Her husband said that the light changed to green for traffic on Pine when 'the car was right near the intersection.' Plaintiff and her husband reiterated no less than eight times that the signal light changed from yellow to green, although the chief of police (called as a witness for plaintiff) stated that the light cycle was from red to green to yellow to red. Defendant's version was that the traffic control signal light at the Pine-Ninth intersection changed to green or 'go' for traffic on Ninth Street when his pickup was 'about twenty feet' north of the intersection. That, at the time of accident, the light was green for traffic on Ninth was confirmed by two apparently disinterested witnesses. But, however pronounced our view on this factual issue may be, we must, on this appeal, assume that the light was green or 'go' for traffic on Pine, for, in determining whether plaintiff made a submissible case, we consider the evidence in the light most favorable to plaintiff and accord to her the benefit of all favorable inferences reasonably deducible therefrom. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633(3).

Sight distance to the right or north for west-bound travelers on Pine, such as plaintiff, and to the left or east for south-bound travelers on Ninth, such as defendant, was restricted and limited by a 'bank' of higher ground contained within a wall around the yard on the northeast corner of the Pine-Ninth intersection, by 'some little shrubs, bushes there' in the yard, and (at the time of accident) by 'a car parked right on the north side of Pine Street, right at the corner.' A photograph (plaintiff's exhibit 1), taken from a considerable distance (not fixed in the evidence) east of the intersection with the camera pointed toward the west, portrays the higher ground, bushes and shrubs but not the parked automobile. The photograph also shows an east-and-west parkway and sidewalk along the north side of Pine, but there was no evidence as to the width of the parkway or sidewalk nor as to the height or size of any visual obstruction on the northeast corner of the intersection.

When plaintiff was asked, 'as you go west on Pine Street, can you see traffic coming south on Ninth,' she replied 'you can't until you get right up there in the intersection.' And, in response to cross-examination as to where she was when she did see defendant's pickup, plaintiff first answered 'right almost at the intersection,' then readily agreed that she was 'right almost to the curb,' and when defendant's counsel sought more definite information with the question, 'would you say five feet away,' finally stated 'just about where that white sign is,' pointing to a sign in the photograph. We think it fairly inferable that plaintiff referred to a 'no parking' sign in the north parkway on Pine, that being the only 'white sign' on Pine east of the Pine-Ninth intersection, which is shown in the photograph. And, although the oral testimony did not fix the distance between the east curbline of the intersection and the 'white sign' and we decline to estimate that distance from the photographs alone [cf. McLean v. Erie R. Co., 69 N.J.L. 57, 54 A. 238, 239(2); Puleo v. Stanislaw Holding Corp., 126 Misc. 372, 213 N.Y.S. 601; Scott on Photographic Evidence, Sec. 85, pp. 65-73], it is obvious that the sign is some distance east of the Pine-Ninth intersection and is not at the east curbline of the intersection. Defendant was not asked, and did not testify, as to the location of the vehicles with reference to the Pine-Ninth intersection either when he could have seen plaintiff's approaching west-bound automobile or when he did see it. However, an investigating police officer testified, in plaintiff's case in chief, that defendant said a few minutes after the accident that 'I was coming south on Ninth Street on a green light and saw the other car coming and thought he was going to stop'; and, on cross-examination at the trial, defendant frankly admitted such statements to the investigating officer, readily agreed that (as is apparent from the photograph) 'when you get right to the north curb (of the intersection), you can see then up Pine Street to the east'--'see traffic coming west,' and significantly stated that 'I did not look for traffic, I knowed I had the right of way.'

Plaintiff, her husband and her son uniformly estimated the speed of plaintiff's automobile when it entered the Pine-Ninth intersection at 'about' or 'anywhere from' fifteen to twenty miles per hour. When asked as to the speed of defendant's pickup, plaintiff said 'I figure he was going about twenty-five or thirty'--'that is just my guess,' and plaintiff's son first hesitantly mused 'well, I don't know for sure' and, when pressed for his 'best judgment,' answered 'I judge twenty-five or thirty.' In plaintiff's case in chief, she (a) produced the investigating police officer who testified that defendant had stated that he was 'going about ten miles an hour,' (b) subsequently put defendant on the stand to establish that he had been driving a 1950 GMC pickup with four-wheel mechanical brakes in good working order and that the pickup was 'generally in good condition,' and (c) then called a sergeant of the Missouri State Highway Patrol who stated without objection that defendant's 'reaction time at ten miles an hour * * * would be around six or seven feet' and that his braking distance 'would probably be from seven to nine feet.' In defendant's case, both he and his wife testified that, as he approached and entered the Pine-Ninth intersection, his pickup was traveling eight to ten miles per hour.

On this appeal, defendant's primary argument in his brief runs along the line that plaintiff was bound by her testimony that defendant was traveling about twenty-five to thirty miles per hour and could not have the benefit of the evidence that defendant's speed was eight to ten miles per hour, and that, absent any evidence that, traveling at twenty-five to thirty miles per hour, defendant could have averted the collision by stopping or swerving after plaintiff's peril became discoverable, plaintiff did not make a submissible case under the humanitarian doctrine. Of course, an essential element of a cause of action under the humanitarian doctrine is that, after (either actual or, in a discoverable peril case, constructive) notice of plaintiff's position of imminent peril, defendant must have had the present ability with the means at hand to have averted the impending harm without injury to himself or others [West v. St. Louis-San Francisco Railway Co., Mo., 295 S.W.2d 48, 52(5), and cases there cited; Branscum v. Glaser, Mo., 234 S.W.2d 626, 628(5); Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 683(5)]; and, if plaintiff in the instant case were limited to her testimony as to defendant's speed, unquestionably there would have been a failure of proof as to this essential element.

It is true that, as defendant emphasizes, a plaintiff may not have the benefit of other evidence which contradicts his own testimony and is at war with his fundamental theory of the case. Fisher v. Gunn, Mo., 270 S.W.2d 869, 874(4); Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7, 10(2-4); Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 603-604(7, 8); Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 786(6, 7)...