Dressler v. Louvier
| Decision Date | 12 December 1966 |
| Docket Number | No. 52207,52207 |
| Citation | 408 S.W.2d 852 |
| Parties | Robert E. DRESSLER, Jr., Plaintiff-Respondent, v. Earl L. LOUVIER, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Henry G. Eager, Donald H. Loudon, I. I. Ozar, Kansas City, William E. Turnage, Liberty, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondent.
William J. Peters, Fred J. Freel, Sheridan, Sanders, Peters & Carr, Kansas City, for appellant.
This is an action for damages for personal injuries growing out of the collision of two automobiles. Judgment was for plaintiff for $6,000. Defendant appealed to the Kansas City Court of Appeals. That court reversed and remanded for a new trial because of error in the giving of an instruction on humanitarian negligence. On application of plaintiff, we ordered the case transferred to this court. It is to be determined here '* * * the same as on original appeal.' Article V, § 10, Constitution of Missouri, V.A.M.S.; Civil Rule 84.05(h) V.A.M.R.
At the close of plaintiff's case and again at the close of all the evidence defendant moved for a directed verdict. Both motions were overruled.
The case was submitted to the jury October 7, 1964 (prior to the effective date of MAI) on both primary and humanitarian negligence.
Defendant briefs five points, only three of which we need mention and consider, viz., that the court erred: (1) in overruling his motions for directed verdict, because plaintiff was guilty of contributory negligence as a matter of law and because plaintiff failed to make a submissible humanitarian case; (2) in permitting an amendment of the petition after the close of all the evidence to add an allegation of humanitarian negligence; (3) in giving an erroneous instruction on humanitarian negligence.
Because of defendant's claim of error in overruling his motions for directed verdict, it is necessary that we make a full statement of the facts. We review the evidence in a light most favorable to plaintiff giving him the benefit of all favorable inferences arising therefrom and disregard defendant's evidence unless it aids plaintiff's case. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 312(1).
The collision occurred shortly before the noon hour Saturday, March 14, 1964, on Maple Boulevard in Kansas City, Missouri. It was a bright, clear day; the surface of the street was dry.
Maple Boulevard runs in a north-south direction. It has a blacktop surface with a white line designating its center and is forty feet wide from curb to curb in the 400 block where the collision occurred. Missouri Avenue intersects Maple 200 to 250 feet north of the scene of the collision and Maple becomes Lexington Avenue 400 to 450 feet north of Missouri Avenue.
Immediately prior to the collision, plaintiff's 1961 model Chevrolet four-door sedan was parked parallel to the curb on the west side of Maple headed south, approximately in front of 418 Maple. Two other automobiles were similarly parked, one in front of and one behind plaintiff's automobile. Automobiles were also parked at the curb on the east side of Maple, but opposite the point of the collision there was a vacant space of approximately 45 feet along the east curb.
Plaintiff lived on the east side of the street, at 419 Maple. Leaving his residence, he walked across the street and stopped for a few minutes to talk with a friend washing his automobile in the driveway between the curb and sidewalk a few feet south of the automobile parked in front of plaintiff. From there he walked back into the street and north to the driver's side of his automobile. Standing in the street beside his car he could and did see north up Maple 600 to 700 feet. He saw no automobiles approaching from the north, or from the south. He then got in his automobile from its left side and started the motor. His car was equipped with a special inside rearview mirror, about 15 inches long. Looking in this mirror he could and did see back north beyond Missouri Avenue, a total distance of approximately 250 feet, but could not see back to Lexington. He testified that no traffic was approaching from the north. Putting his car in reverse gear, he backed up, looked through the raised windows to his left, could see as far back as Missouri Avenue, and saw no vehicle approaching from the north. At a speed he estimated at one to two mph he pulled out from the curb headed in a southeasterly direction onto the traveled portion of Maple and stopped to look again. At this point a portion of the rear of his car was still in the parking space and its left front corner was, according to his estimate, three or four feet from or west of the centerline. Stopped in this position, he looked again and saw defendant's 1964 Chevrolet about 90 feet away headed toward him in the southbound land traveling at a speed he estimated at 45 to 50 mph. He said he 'froze' and '* * * couldn't do anything else.' Plaintiff said he '* * * was stopped a full two seconds' in this position before defendant struck him; another witness estimated that plaintiff '* * * was at a complete standstill * * * four seconds.' The defendant applied his brakes and skidded or slid into plaintiff's automobile. Pictures of the two vehicles indicate, and testimony of the witnesses is, that the right front corner of defendant's automobile struck the plaintiff's automobile at about the forward edge or hinge end of its left front door.
Plaintiff further testified that the elapsed time between his getting in his parked car and the collision was eight or nine seconds, but that this was '* * * an approximate guess * * *.' He testified that when he saw defendant's automobile 90 feet north of him its left side was two feet west of the centerline; that it did not change its course; that it slid straight into him, its speed being reduced to about 30 or 35 mph at the moment of impact; that upon impact defendant's car veered off to its left and came to a stop with most of its body on the east side of the white line; that his car was knocked sideways to the west three or four feet; that no other vehicles were traveling Maple at the time in either direction; that had defendant swerved his automobile to its left one and one-half or two feet the collision could have been avoided; that defendant could have swerved his car sufficiently to its left in the time and distance he had available from the instant plaintiff saw him and could have gone around plaintiff's car in what plaintiff described as 25 feet of unobstructed street east of him.
According to measurements made shortly after noon that day, defendant's automobile laid down solid uninterrupted skid marks for a total distance of 40 1/2 feet, the first 31 1/2 feet of which were straight to what one witness said was the point of impact; the last nine feet veered off to the southeast across the centerline. North of the solid skid marks there were other broken skid marks two or two and one-half feet in length, and then a skip of undisclosed distance to the point where the solid skid marks began. Other skid marks measuring one foot by three and one-half feet, obviously from plaintiff's car, were found leading off southwest from what was indicated as the point of impact.
Defendant testified that on the morning of the collision he drove onto Maple from Lexington Avenue and was headed south; that Missouri Avenue intersects Maple 200 to 300 feet north of the point of collision; that Maple is 'fairly level,' and there was nothing to obstruct visibility in either direction; that visibility is good from Missouri Avenue to the point of collision; that his speed when he first saw plaintiff's automobile pulling out from the curb was 20--25 mph; that immediately upon seeing plaintiff's automobile he '* * * went for the brakes and tried to steer out of his way;' that when he first saw plaintiff's car it was pulling out from the curb and was '* * * right on top of me;' that plaintiff's car was pulling out at average speed, about '* * * five miles an hour, or two miles, or three miles,' and did not stop prior to impact; that when he first saw plaintiff's car it was five to ten feet from him, or '* * * perhaps a car length;' that he applied his brakes and '* * * steered to the left as hard as I could;' that he skidded into plaintiff's car with his brakes still...
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