Euler v. Schulthes

• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Citation: 522 S.W.2d 155
• Parties: Barbara EULER, Plaintiff-Respondent, v. William E. SCHULTHES, d/b/a Santa Fe Cab Company, Defendant-Appellant, and George R. Betancourt, Defendant. 26726.
• Court: Missouri Court of Appeals

Page 155

522 S.W.2d 155

Barbara EULER, Plaintiff-Respondent, v. William E. SCHULTHES, d/b/a Santa Fe Cab Company, Defendant-Appellant and George R. Betancourt, Defendant.

No. KCD 26726.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

James Horn, Edward Sheppard, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant-appellant.

Richard W. Mason, St. Joseph, for plaintiff-respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

In this jury tried action for damages resulting from an intersection vehicular collision in Kansas City, Missouri, on May 23, 1972, plaintiff, Barbara Euler, received a verdict in the amount of $3,500.00 against defendant William E. Schulthes, d/b/a Santa Fe Cab Company. The jury returned a verdict in favor of defendant George R. Betancourt. Schulthes appealed. Plaintiff did not appeal from the verdict rendered in favor of Betancourt.

The issue posed by Schulthes on appeal, primal as it may be, is one that does not lend itself to a quick or easy resolution. Did the plaintiff make a submissible lookout case against Schulthes? Parenthetically, plaintiff submitted her case to the jury against both defendants on the sole ground that each 'failed to keep a careful lookout'.

Ascertainment of whether the evidence in a given situation is sufficient to support a submission of negligence is subject to the established principle that a plaintiff is entitled to the benefit of all favorable evidence and all favorable inferences therefrom, regardless of the introductory source, party-wise, of such evidence. However, there is an equally well established qualification to the principle just mentioned. A plaintiff is not entitled to the benefit of evidence which is at variance with his unequivocal personal testimony as to the matters other than mere estimates or opinions, or which is at war with his own theory of the case. Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968), and Anthony v. Morrow, 306 S.W.2d 581 (Mo.App.1957). A congruent review of the evidence, interspersed with interpolations of applicable substantive law, discloses the following facts from which submissibility must be determined.

On the evening of May 23, 1972, around 'dusk', plaintiff was a passenger in a cab owned by appellant Schulthes (the driver of the cab did not appear or testify at the trial). The cab was traveling north on Washington Street in Kansas City, Missouri, approaching an intersection formed by Washington Street and Eleventh Street. Washington was a four-lane, 'one-way' street limited to northbound traffic. Eleventh was a four-lane, 'one-way' street limited to westbound traffic. The intersection was controlled by a 'stop and go' traffic signal light. The cab was northbound in the second lane east of the west curbline. The record is silent as to the make, model and vintage of the cab. The other vehicle involved, a 1970 Toyota operated by George R. Betancourt, was westbound on Eleventh Street, in the second lane north of the south curbline and approaching the intersection. Even the most cursory review of plaintiff's testimony reveals that she was quite adamant, and testified in a positive, unequivocal manner, that the cab had the 'green' or 'go' light as it approached and entered the intersection, and, as well, at the time the collision occurred. Plaintiff is bound by and irrevocably committed to her positive unequivocal testimony that the 'green' or 'go' light favored the cab at all time. Hecker v. Schwartz, supra; Burris v. Kansas City Public Service Co., 226 S.W.2d 743 (Mo.App.1950), and Mollman v. St. Louis Public Service Co., 192 S.W.2d 618 (Mo.App.1946).

The driver of the cab, favored as he was with the 'green' or 'go' light, had the right to assume that Betancourt would obey the traffic signal light and come to a stop before entering the intersection. The driver of the cab had the further right to rely upon this assumption until he knew or by the exercise of the highest degree of care should have known that Betancourt did not intend to obey the traffic light, but instead intended to proceed into and across the intersection without stopping. Coulter v. Bi-State Development Agency of Mo.-Ill. Met. Dist., 434 S.W.2d 793 (Mo.App.1968); Williams v. Funke, 428 S.W.2d 11 (Mo.App.1968); Collier v. St. Louis Public Service Co., 298 S.W.2d 455 (Mo.App.1957). Although plaintiff, absent any indication as to the location of the cab with respect to the intersection or any other fixed reference point, testified that she saw the Betancourt vehicle 'before the actual impact' at which time it was 'supposedly' stopped, her testimony in this respect was clearly equivocal and therefore nonbinding upon her. Smith v. Siercks, 277 S.W.2d 521 (Mo.1955); Burris v. Kansas City Public Service Co., supra. Consequently, one is relegated to searching the record to ascertain whether evidence exists as to when the cab driver's right to rely upon the assumption that Betancourt would obey the traffic signal light terminated. The only evidence touching upon this crucial determination is found in Betancourt's testimony. He testified that when he was 'four or five car lengths' east of the intersection he observed the cab, at which time the cab was approximately 'half a block' away or 'half ways up the street'. If judicial notice is taken that a city block is approximately three hundred feet in length, Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73(4) (1951); Hamell v. St. Louis Public Service Co., 268 S.W.2d 60(1) (Mo.App.1954), the import of Betancourt's testimony is that the cab was approximately one hundred fifty feet 'up the street' at the time his vehicle was 'four or five car lengths' east of the intersection. At this point of time Betancourt variously described his vehicle as traveling approximately ten...