Douglas v. Whitledge

• Citation: 302 S.W.2d 294
• Decision Date: 30 April 1957
• Docket Number: No. 7518,7518
• Parties: Roy D. DOUGLAS, Plaintiff-Respondent, v. Jimmie WHITLEDGE, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 294

302 S.W.2d 294

Roy D. DOUGLAS, Plaintiff-Respondent, v. Jimmie WHITLEDGE, Defendant-Appellant.

No. 7518.

Springfield Court of Appeals, Missouri.

April 30, 1957.

C. A. Powell, Dexter, for appellant.

Claude Arnold, Dexter, for respondent.

McDOWELL, Presiding Judge.

This appeal is from a verdict and judgment of the Circuit Court of Stoddard County, Missouri, in favor of plaintiff and against defendant on plaintiff's petition for $200 damages to his automobile, and in favor of plaintiff on defendant's counterclaim wherein he sought $1,000 damages to his car.

Plaintiff's petition is based upon both primary and humanitarian negligence. The cause was submitted to the jury only on primary negligence. As to primary negligence, the petition alleged that on the 26th day of February, about 7:25 A.M., plaintiff was driving north on Mulberry Street in Dexter, in his 1948 Nash Sedan; that when he arrived at the intersection of Mulberry Street with Stanley Street, (which runs east and west) his car was violently struck in the middle portion by defendant's 1954 Mercury, two-door sedan, coming from the east on Stanley Street.

The acts of primary negligence relied on were: That defendant failed to use the highest degree of care in that he failed to stop at said intersection; that he failed to keep a proper outlook for plaintiff and other persons on said street; that he failed to keep a proper control of his automobile; and, that he drove at a high and excessive rate of speed.

Defendant filed answer and counterclaim. The answer admitted that defendant was driving in a westerly direction on Stanley Street and the collision with plaintiff's car, but, denied all other allegations in the petition. It pleaded that the petition failed to state a claim and that if plaintiff sustained any damages it was due to his own negligence and carelessness directly and proximately contributing thereto.

In the counterclaim defendant asked for $1,000 damages to his car because of the negligence of the plaintiff. The acts of negligence relied on were (1) in failing to keep a lookout for and to see defendant's automobile which was approaching from plaintiff's right; (2) in failing to give the right-of-way to defendant's automobile approaching from plaintiff's right, since both automobiles were approaching and entering such intersection at approximately the same time; (3) in failing to stop, slow down or swerve his automobile to avoid the collision, and, (4) in failing to have his automobile under control.

The reply was a general denial.

In our opinion we will refer to appellant as defendant and respondent as plaintiff, the position they occupied in the lower court.

The evidence shows that Mulberry is a blacktop street, 20 feet wide, running in a north-south direction and Stanley is a blacktop street, 17 feet wide, running east and west, intersecting Mulberry Street.

Plaintiff testified that on the morning of February 26, 1955, about 7:25 o'clock, he was driving his car north on Mulberry Street, approaching the intersection with Stanley Street; that at the time he was driving in the east lane of traffic at a speed of between 28 and 30 miles per hour; that he did not slow down as he entered the intersection. He gave this testimony:

'Q. Tell what you did, if anything, as you approached the intersection. A. I looked both right and left at the intersection when I entered it, and saw nobody coming.

'Q. Did you then enter the intersection? A. Yes, sir.

'Q. When did you see him? A. When he was within about two foot of me.'

Plaintiff testified that the impact between the cars was about two feet south of the north line of Stanley Street and about two feet east of the east line of Mulberry Street; that it happened about the middle of the east line of traffic on Mulberry Street; that the front end of his car, at the time of the collision, was about 8 feet north of the north line of Stanley Street; that he observed skid marks after the collision, made by defendant's car, which were 12 feet long from point of impact; that defendant's car was in the north lane of traffic on Stanley Street. He testified:

'Q. All right. You said you first observed his car when he was about two feet from you, what did you do, if you recall, when you saw that situation? A. I didn't have time to do anything.'

Plaintiff stated that after the collision his car came to rest 27 steps north on Mulberry Street, headed west; that there were no other cars traveling on either street at the time of the collision; that it was cloudy but the pavement was dry.

On cross-examination this testimony was given:

'Q. When did you look? A. When I entered the intersection.

'Q. But you didn't turn any before you were hit, did you? A. No, sir.

'Q. Did you ever swerve your car in any way? A. No, sir.

'Q. Did you ever put your brakes on? A. No, sir, I didn't have time.

'Q. Yes. Now, when did you look to the right? A. When I entered the intersection.

'Q. Did you look back here (indicating)? A. I couldn't look back there.

'Q. Why not? A. Because I had an obstruction in my way.

'Q. What was it? A. Some bushes there in Baliff's yard.

'Q. What part of your car was in the intersection when you looked to the right? A. It wasn't in the intersection when I looked.

'Q. None of it was? A. No, sir.

'Q. Was the front end up even with this concrete walk? A. Yes.'

The evidence showed there were concrete walks on each side of both streets, about four feet wide. Plaintiff gave this testimony:

'Q. Now, where were you sitting, were you even with the south side or were you farther to the south? A. I was at the north side of the walk, even with the north side of the walk, when I looked for a clear right of way.

'Q. You mean where you were was even with the north side of the walk, is that right? A. I would call that at the entrance of the intersection.'

He testified the seat of the car was about four feet from the front end. He gave this testimony:

'Q. When you looked to the right you could see clear down the street, is that true? A. No, sir; I couldn't see all the way down the street.

'Q. Just tell us what you could see down there, how far you could see. A. Well, there is a tree that would stop a man's obstruction, on the right. * * * Sitting in the corner.'

He stated when he looked he had not got past this tree. He testified he was sitting about four feet or so south of the sidewalk when he looked and he was looking at an angle across the street. He testified:

'Q. Now, how long did you look to the right, just a glance to the right and looked ahead again? A. I looked to the right and looked to the left.

'Q. And you didn't see anybody at any time? A. No, sir.'

He stated after he looked to the right he traveled about 15 feet before the collision; that he was still in the middle of his lane of traffic and defendant was in his middle lane of traffic; that he saw defendant's car out of the corner of his eye and that attracted his attention when he looked to the right. He stated the defendant's car hit his car near the front door on the right side; that his car went on north on Mulberry Street and defendant's car headed north on Mulberry Street. Plaintiff testified he did not know the speed of defendant's car at the time of the collision.

We think the testimony is undisputed that at the southeast corner of this intersection there were bushes, without foliage, along the concrete sidewalk from the corner east on Stanley and south on Mulberry.

Defendant testified that as he approached Mulberry Street, driving west he saw plaintiff's car coming north on Mulberry when he was in about 30 or 35 feet from the intersection, and, at the time was driving about 25 to 30 miles an hour; that when he saw plaintiff was not going to slow down or stop, he put on his brakes; that his car made skid marks from point of impact back about three steps.

Three photographs were offered in evidence showing damage to plaintiff's car. The bent portions of the car on the right side started at the edge of the front fender and extended back to and damaging the back fender. Both front and back doors were mashed in.

Defendant testified that the grill, hood, both front fenders, headlights, bumper, radiator, fan, and fan belt on his car were damaged. There were no stop signs on either street.

Defendant assigns as error the trial court's failure to sustain his motion for a directed verdict at the close of all the evidence and for judgment on plaintiff's petition in accordance with defendant's motion for a directed verdict at the close of all the evidence, because plaintiff was guilty of contributory negligence as a matter of law.

Where a litigant's own evidence establishes his contributor negligence, the issue is for the court. Wilson v. Toliver, Mo.Sup., 285 S.W.2d 575, 580.

Section 304.021 RSMo Cum.Supp. (1955). V.A.M.S. reads:

'1. The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway, provided however, there is no form of traffic control at such intersection.

'2. When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the driver of the vehicle on the right. * * *'

In Weis v. Melvin, Mo.Sup., 219 S.W.2d 310, 311, the law is stated:

'It is the duty of motorists to maintain a careful and vigilant lookout ahead and laterally ahead.' (Citing much authority.)

Then the court stated: 'Other things being equal, the motorist on the left is to yield the right-of-way to the motorist on the right at highway and street intersections. * * * As defendant approached and as she proceeded across the intersection the law placed upon her a duty to watch for traffic on her right, the direction from which she especially would expect traffic as she approached the center line of 63rd street. * * *' Folluo v. Gray, Mo.App.,...