Doolin v. Swain

Decision Date09 June 1975
Docket NumberNo. 58798,58798
Citation524 S.W.2d 877
PartiesLouise L. DOOLIN and H. J. Doolin, Plaintiffs-Appellants, v. Donna J. SWAIN and Blue Ridge Shopping Center, Inc., Defendants-Respondents.
CourtMissouri Supreme Court

Herman M. Swafford, and Thomas K. Thompson, Kansas City, for plaintiffs-appellants.

Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for defendant-respondent Donna J. Swain.

John R. Gibson, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant-respondent Blue Ridge Shopping Center, Inc.

SEILER, Judge.

This is an action for damages for personal injurises and loss of consortium stemming from the intersection collision on October 17, 1969, of a car operated by plaintiff, Louise L. Doolin, and one operated by defendant, Donna J. Swain, which occurred upon the privately owned parking area of defendant, Blue Ridge Shopping Center, Inc. A jury returned a verdict for both defendants. On appeal to the court of appeals, Kansas City district, the judgment in favor of defendant Blue Ridge Shopping Center was affirmed, while the judgment in favor of defendant Donna J. Swain was reversed and remanded for new trial.

The case was ordered transferred here by this court on application of defendant Swain largely because of statewide interest in whether the statutory rules of the road as to right-of-way apply to motorists driving on parking areas of large shopping centers. We hold they do not.

Blue Ridge's parking area surrounds a shopping center bounded by I--70 on the north, Blue Ridge Boulevard on the east, and 43rd Street on the south. Vermont Street runs south from 43rd Street near the central entrance-exit of the parking area. Mrs. Doolin had parked on the south side of the area near that exit about 2:00 p.m., prior to the time she did her shopping.

The shopping center had a sizeable expanse of level paved parking area. While the record does not disclose the number of acres in the parking area, it necessarily was several, because the plot plan has marked parking spaces for more than four thousand vehicles. The parking spaces were marked by painted stripes in regular alignment for vehicles to be parked side by side, thus forming a long straight row of parked vehicles with an open street-like area or aisle approximately 24 feet in width between each row for use in driving to or leaving the parking places. The parking areas were numbered. Each had a pedestal type sign at the entrance directing the way to turn for parking. There were other street-like areas, at right angles to the parking area lanes mentioned above, for traffic across the shopping center area. These streets had names (Tower Entry Road, East Drive, Sterling Drive, etc.) and enabled shoppers to drive to a particular store area and then turn off to a convenient parking space. Finally, there was a perimeter or ring street, about 30--35 feet wide, circling the area, used by traffic to enter or leave the center. At many of the street intersections there were 'stop' signs painted on the pavement. In general, there was a 'stop' sign on the pavement at all exists from a parking area onto one of the named streets. Most of the roadway areas had yello middle lines. There were also 'yield' signs and 'keep right' signs, '15 miles per hour' signs and 'private property' signs at various locations.

The collision occurred in an intersection near the south exit of the parking lot as Mrs. Doolin was leaving upon completion of her shopping. Mrs. Doolin was driving south, in the north-south roadway between parking areas 75 and 76, between two rows of parked cars, approaching the perimeter road, South Ring Road. Miss Swain was driving west on the perimeter road, approaching the intersection formed by the perimeter road and the parking roadway. Mrs. Doolin said there was no stop sign painted on her road protecting the intersection. The evidence of the defendants was to the contrary. Mrs. Doolin was first into the intersection, traveling three to five miles per hour. Miss Swain's car, traveling ten miles per hour, struck Mrs. Doolin's car at the driver's door. The first claim of error is the giving of defendants' instruction No. 7 on the subject of Mrs. Doolin's contributory negligence in failing to keep a careful lookout. Plaintiffs contend there was no substantial evidence to support the instruction.

While the court of appeals set forth the evidence on the lookout issue in some detail, the main point of interest now concerns the statutory rules of the road as to right-of-way and the extent of their applicability to shopping centers, and as we see no precedential value in the lookout question, we believe it suffices to say that this being an intersection collision with Mrs. Doolin going south at three to five miles per hour and Miss Swain west at ten miles per hour, with level terrain and no obstruction to view except for whatever vehicles were parked to Mrs. Doolin's left as she approached the intersection and with her admission that she never saw defendant's vehicle until it was only three car lengths away, there is no doubt there was submissible issue of contributory negligence on lookout and we agree with the court of appeal's conclusion that Mrs. Doolin by exercise of appropriate care would have seen Miss Swain's approach in time to have stopped short of the collision and thereby avoid it. Commerford v. Kreitler, 462 S.W.2d 726, 729, 731 (Mo.1971); Allen v. Bi-State Development Agency, 452 S.W.2d 288, 290, 291 (Mo.App.1970); Dixon v. Kinker, 410 S.W.2d 347, 350, 351 (Mo.App.1966).

Turning to the right-of-way problem, we note first that among the charges of negligence made against defendant Swain by plaintiffs, one was that defendant Swain 'failed to yield the right-of-way to plaintiff who had already entered the intersection where the accident occurred.' This is an allegation of common law right-of-way. 1 Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 580 (1955). Defendant in her answer made various charges of contributory negligence against Mrs. Doolin, including the charge that plaintiff 'failed to yield the right of way by disregarding a stop sign which required that plaintiff Louise Doolin stop and yield the right of way to the automobile being driven by' defendant. This is an allegation of statutory right-of-way. Sec. 304.351, subd. 4, RSMo 1969, V.A.M.S. The answer of defendant Blue Ridge alleged contributory negligence of plaintiff in general terms.

From the outset, one of the contested issues in the case was right-of-way. Plaintiff took the position that there was no stop sign against her at the intersection in question, that the shopping center had been doing some resurfacing and if there had been a stop sign there, it had become obliterated. Defendant Swain took the position that the perimeter road on which she was driving west was a through street protected by a stop sign painted on the pavement against Mrs. Doolin as the latter proceeded south; that the defendant Swain knew she (Swain) was on a through street and expected cars coming onto it to stop before doing so. Defendant Blue Ridge Shopping Center took the position there was a stop sign against Mrs. Doolin and that she drove out into the intersection in front of Miss Swain without stopping.

Mrs. Doolin and her husband submitted their claims in Instruction Nos. 2 and 3 which except for the names of the parties, were identical, reading as follows:

'Your verdict must be for plaintiff, Louise Doolin, against defendant, Donna Swain, if you believe:

'First, That defendant Donna Swain, either

Failed to yield the right-of-way as submitted in Instruction No. 6, or

Drove at an excessive speed in approaching an uncontrolled intersection where the visibility to her right in order to see other approaching vehicles was greatly reduced and restricted.

Second, Defendant Donna Swain's conduct, in any one or more of the respects submitted in paragraph First was negligent . . .', etc.

Plaintiffs asked the court to give a right-of-way definition which would have been in accord with the common law on the subject as follows:

'The phrase 'right-of-way', as used in these instructions, means the right of one vehicle to proceed ahead of the other.

'When two vehicles do not reach an intersection at approximately the same time, the vehicle which enters the intersection first has the right-of-way provided a very careful person would so proceed under the same or similar circumstances.' 2

Instead, the court over ...

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7 cases
  • Reed v. Sale Memorial Hosp. and Clinic, 13376
    • United States
    • Missouri Court of Appeals
    • 23 Septiembre 1985
    ...instructions nowadays should submit only the ultimate issues and evidentiary detail should be left to the jury. Doolin v. Swain, 524 S.W.2d 877, 881-82 (Mo. banc 1975). Thus it was held in Glastris v. Union Electric Company, 542 S.W.2d 65, 71 (Mo.App.1976), to be error to submit the defenda......
  • McTeer v. Clarkson Const. Co., Inc.
    • United States
    • Missouri Court of Appeals
    • 11 Abril 1991
    ...also drawn from the "shopping center" cases where the statutory rules of the road do not apply because it is private property. Doolin v. Swain, 524 S.W.2d 877, 880 (Mo. banc 1975); Kimmich v. Berry, 319 S.W.2d 546 (Mo.1959); Feldman v. Lewis, 338 S.W.2d 364 While it is true that the shoppin......
  • Mitchell's Estate, Matter of
    • United States
    • Missouri Court of Appeals
    • 16 Diciembre 1980
    ...the better practice would be to avoid enumerating these factors in any instruction and to have counsel cover them in argument. Doolin v. Swain, 524 S.W.2d 877, 881 (Mo.banc Respondent also complains that petitioner's burden of proof was not properly defined in the instructions. The burden o......
  • Hladyshewski v. Robinson, 76-1781.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 12 Julio 1977
    ...constitute a failure to exercise ordinary care, the standard of care which applies to driving on private property. Doolin v. Swain, 524 S.W.2d 877, 881 (Mo.1975). The parties do not cite, and our research has not disclosed, any Missouri case dealing directly with this issue. The general rul......
  • Request a trial to view additional results

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