Doolin v. Swain, 58798

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

Page 877

524 S.W.2d 877
Louise L. DOOLIN and H. J. Doolin, Plaintiffs-Appellants,
v.
Donna J. SWAIN and Blue Ridge Shopping Center, Inc.,
Defendants-Respondents.
No. 58798.
Supreme Court of Missouri, En Banc.
June 9, 1975.
Rehearing Denied July 14, 1975.

Page 878

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

Page 879

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...

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7 cases
  • Reed v. Sale Memorial Hosp. and Clinic, 13376
    • United States
    • Court of Appeal of Missouri (US)
    • September 23, 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., 16537
    • United States
    • Court of Appeal of Missouri (US)
    • April 11, 1991
    ...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 shopping center ........
  • Mitchell's Estate, Matter of, 40865
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1980
    ...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 of proof ins......
  • Hladyshewski v. Robinson, 76-1781.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 12, 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......
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