Farnham v. Boone, 53043

• Decision Date: 09 September 1968
• Docket Number: No. 53043,No. 1,53043,1
• Citation: 431 S.W.2d 154
• Parties: Thomas F. FARNHAM, Appellant, v. John F. BOONE, Sr., Respondent
• Court: Missouri Supreme Court

Page 154

431 S.W.2d 154

Thomas F. FARNHAM, Appellant, v. John F. BOONE, Sr., Respondent.

No. 53043.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1968.

Walter A. Raymond and Raymond, West & Strader, Kansas City, for appellant.

Roy F. Carter and Gordon N. Myerson, Kansas City, for defendant-respondent, Sprinkle, Carter, Sprinkle, Larson & Hanna, Kansas City, of counsel.

WELBORN, Commissioner.

The only issue on this appeal is whether the trial court erred in refusing to submit plaintiff's claim for damages arising from an automobile collision upon humanitarian negligence in failure to stop or slacken speed. The case was submitted on primary negligence in failing to keep careful lookout. The jury's verdict was for defendant. Plaintiff appeals.

The incident in question occurred at about 7:30 P.M., April 27, 1964, at Kansas City. Plaintiff was driving a 1961 Ford 4-door sedan. He was taking his son to band practice at the Gospel Assembly Church located at 3238 The Paseo. He drove south on The Paseo, a 60-foot street divided into six marked lanes, four for moving traffic and one nearest the curb on either side for parked vehicles. Plaintiff saw a parking place on the west side of the street, almost directly in front of the church. The space available was some forty feet between two parked vehicles. A driveway occupied some ten feet of this space and there were some ten feet south of the drive to a parked auto. There were twenty feet north of the drive to the nearest parked vehicle.

According to plaintiff, he headed into the parking space and pulled up to within about two feet of the vehicle to the south. Plaintiff stated first that he pulled in parallel with the curb, but he later stated that the back end 'was then sticking out somewhat.' He said the right front wheel was about a foot from the curb, with the back wheels extending a little farther out than the front wheels, 'maybe two or three feet, maybe the car sitting on just a slight angle.'

After looking in a rear-view mirror and seeing no traffic on the adjacent lane to the left, plaintiff started to back his car slowly into the parking space he intended to occupy. He turned his front wheels to get the back end over and then 'cut' his wheels to get the 'front end into the proper place. It could have been protruding possibly a foot, a couple of feet.' When he almost reached a position where he intended to leave his auto, with his car either stopped or just preparing to stop, the vehicle was struck on the left front fender by an auto driven by defendant. Defendant's auto was damaged in the right front fender by the collision. Plaintiff did not see defendant's auto until the collision occurred.

Defendant was also looking for a place to park. He stated that he was in the first marked lane from the parking lane, that he had been driving south straight in that lane for a block and a half at about ten miles per hour, with no traffic in the lane in front of him. He did not see plaintiff's automobile before the collision. He stopped his auto after the collision within about one half its length. Plaintiff said that his auto was moved forward some two or three feet by the force of the collision. Plaintiff and his wife testified that, following the collision, defendant stated that he was looking for a parking place on the other side of the street.

The plaintiff offered first a verdict-directing instruction based upon humanitarian negligence in failing to stop. Upon refusal of that instruction, he tendered a second humanitarian instruction on failure to slacken speed. When the trial court refused those instructions on the grounds that there was no evidentiary basis for a humanitarian submission, the plaintiff tendered and the court gave an instruction on primary negligence in failure to keep a careful lookout. An instruction, offered by defendant, was given on plaintiff's contributory negligence in failing to keep a careful lookout.

In passing upon the issue raised on this appeal, we do, as appellant points out, view the eivdence most favorably from the standpoint of plaintiff, giving him the benefit of all favorable inference to be drawn from an examination of the evidence in such light, and disregarding defendant's evidence except insofar as it may, consistently with plaintiff's theory, aid plaintiff. Thaller v. Skinner & Kennedy Company, Mo.Sup., 315 S.W.2d 214, 126(2, 3); Robb v. St. Louis Public Service Co., 352 Mo. 566, 178 S.W.2d 443, 444(1, 2); Hopper v. Conrow, Mo.Sup., 347 S.W.2d 896, 899(1--3).

However, as pointed out in Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, 787(1--3): 'Sometimes humanitarian cases require niceties in calculations for the doctrine begins to operate and seizes the facts when imminent peril arises. The duty to make his case is upon plaintiff and he must remove it from the field of conjecture and establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence. If the evidence presents a situation from which liability or nonliability may be equally inferred, the court must declare that no case has been made.'

This case does not admit of extensive 'niceties in calculations.' All of the distances, dimensions and speeds involved are describes this as 'an 'almost escaping case' describes this as 'an 'almost escapting case' where the facts speak for themselves without the aid of opinion evidence thereby making it unnecessary to make all the calculations and demonstrate as to the requested submissions under the humanitarian doctrine.'

Appellant's argument proceeds on the theory that his authomobile was in the defendant's lane of travel from the time that the appellant started to back into the parking place until the time of the collision. Basing his argument on an assumed backing speed of two miles per hour, an assumed length of plaintiff's auto of seventeen feet and the defendant's testimony of his speed at ten miles per hour, plaintiff states that defendant's vehicle traveled 75 feet during the time that plaintiff's vehicle backed an assumed seventeen feet at an assumed two miles per hour. Plaintiff then asserts: 'During that entire period defendant could have seen plaintiff's automobile maneuvering to get to the curb ad is charged with knowledge of its position and movements.' Respondent did testify that he could see for 1 1/2 blocks in the lane of traffic in which his vehicle was moving. Respondent also testified that the point of impact between the two vehicles was in such lane. Therefore, there can be no successful argument that plaintiff was never in the defendant's lane of traffic. However, the difficulty lies in determining when plaintiff's entry into such lane in his parking maneuver placed him in a position of imminent peril, under the humanitarian doctrine.

The problem arises in part from the absence of measurements. For example, plaintiff's brief states that The Paseo, at the point of the collision, is sixty feet wide, divided into six lanes, each ten feet wide. Plaintiff's testimony was that he did not get more than three feet from the curb in his parking maneuver. Assuming that his auto was some 6 1/2 feet wide, the plaintiff's testimony and the...