Finch v. Kegevic

• Decision Date: 25 October 1972
• Docket Number: No. 9169,9169
• Citation: 486 S.W.2d 515
• Parties: Jane FINCH, Plaintiff-Appellant, v. Ruth KEGEVIC, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 515

486 S.W.2d 515

Jane FINCH, Plaintiff-Appellant, v. Ruth KEGEVIC, Defendant-Respondent.

No. 9169.

Missouri Court of Appeals, Springfield District.

Oct. 25, 1972.

Benjamin J. Francka, Springfield, for plaintiff-appellant.

Glenn A. Burkart, Mann, Walter, Burkart & Weathers, Springfield, for defendant-respondent.

TITUS, Chief Judge.

Two female-operated automobiles collided at the intersection of east-west University Street and north-south Hampton Street in the City of Springfield. Plaintiff, the sole occupant of her vehicle, was eastbound on University. Defendant was alone in her automobile and traveling north on Hampton. There were no witnesses to the accident other than the two participants, neither of whom saw the other prior to the casualty. Likewise, both parties disclaimed any knowledge of what transpired immediately before, during, or immediately after the impact. Plaintiff submitted her case on two disjunctive assignments of negligence under the humanitarian doctrine. All of the evidence regarding the collision was produced by plaintiff; defendant did not testify and her version of the matter consisted of excerpts read from her deposition by plaintiff. Members of the jury sworn to try the case in the Circuit Court of Greene County returned a $10,000 verdict for plaintiff. Thereafter, defendant moved the trial court for judgment in accorance with her previously filed motion for a directed verdict. Rule 72.02, V.A.M.R. The court obliged defendant by setting aside the verdict and entering judgment in her favor. Plaintiff appealed. The lone issue here is whether plaintiff made a submissible case on defendant's alleged failure to slacken speed or stop under the humanitarian doctrine, and in determining that question we proceed to relate and consider the evidence adduced in the light most favorable to plaintiff's view and afford her every favorable inference, if reasonable, which the evidence tends to support. Cloninger v. Wolfe, Mo.App., 477 S.W.2d 440, 441; Rawson v. Ellerbrake, Mo.App., 423 S.W.2d 14(1).

The first street west of and parallel to north-south Hampton (traveled by defendant) is Kings. A photographer said the distance between Hampton and Kings via University 'measured 207 steps (which) would be very close to 600 feet.' The first street south of and parallel to east-west University (traveled by plaintiff) is Sunshine. By measuring 'the distance from University to Sunshine on Hampton,' the photographer 'came up with a figure of 100 steps (which) would be approximately 300 feet.' University is 30 feet wide, paved with concrete, and is outlined by concrete curbings. The surface of Hampton was variously described as 'gravel or gravel and oil,' 'blacktop,' and 'bituminous or asphaltic,' with 'chug holes;' it measures 'from 14 feet in width to 18 in various places, and the average mean (sic) width . . . would be about 16 feet. That's just approximate.' No curbings delineate the bounds of Hampton. The accident occurred in clear daylight, the roadways were dry, and no signs, signals or other traffic controls were present at the intersection of University and Hampton. Both of the involved vehicles, including their brakes, were in good mechanical condition.

The sight distance across the southwest corner of the accident intersection was confusingly described by an elderly resident there, as follows: (Direct examination) 'Q. . . . 60 feet back from the intersection, could you tell the Court how far a person looking to the left or to the west can see on University? A. Well, we have a house on the opposite (side) of the street on the corner, quite a large lot next and then another house. I can easily see all of that distance. I guess I'd say two hundred feet anyhow. . . . Q. . . . is there anything to obstruct one's view as they look west on University? A. No. There is a yew out to the sidewalks. ¹ It's about four feet high at the highest part on the top, but then it's all clear. (Cross-examination) Q. And you say that when you are 60 feet south of University on Hampton you can see 200 feet west on University? A. There is . . . a rather large yew at the corner of our house. I would say that would take 12 to 15 feet. I would say 45 feet could be clear. Q. 45 feet what direction? A. Looking west. Q. You say then that when you are 60 feet south of University you can see 45 feet west on University? A. Our house sits, I think 60 feet from the corner. There is a . . . large yew that would cut off another 15 feet possibly so you could see for 45 feet. You could see out University.' Testimony of the photographer regarding the sight distance, proceeded thusly: 'Q. Now, did you have occasion to observe the shrubbery and growth and the buildings on the southwest corner of this intersection? . . . A. There is some shrubbery on the corner, some kind of arbor vitae evergreen and . . . near the west line there is a low hedge and a tree in the corner. . . . Q. Do the branches on the tree obstruct the view of someone looking across the corner of the intersection? A. May I see the photograph? . . . Yes, there's trees. I notice there are three trees in the photograph, so there are three trees there.'

A police officer, upon arriving at the scene, found both cars an unstated distance east of the intersection. Defendant's automobile was partially upon the south University parkway and showed signs of having received damage at the front of the left side of the left front fender and to the left rear fender just back of the wheel well. Plaintiff's vehicle was in a yard on the north side of University with its front end nearly against a tree with which it had apparently collided. Damage to plaintiff's car was limited to 'the front right and to the front center.' The officer observed no skid marks or debris at or near the intersection. He did, however, discover a 'freshly made' gouge mark in the concrete, 4 to 6 inches long and pointing southwest to northeast, which was located '14 feet north of the south curb line of University (and) 19 feet east of the west curb of Hampton;' the policeman could not ascertain 'which of the automobiles might have made it.'

Plaintiff testified she drove south on Kings and, after observing a stop sign, turned left or east onto University. Her recollection is limited to having driven eastward along University '15 or 20 seconds' on the right side of the street, 'looking straight ahead, right and left,' and not exceeding the 'legal speed limit . . . 30 miles an hour,' but she could not 'remember anything after that.' Although plaintiff 'had traveled that way several times,' she 'didn't know Hampton was there.'

Those portions of defendant's deposition that were read to the jury are no more elucidating than plaintiff's testimony, and defendant's memory ceased 'just as I approached there (the intersection).' Defendant recounted she had driven 15 to 20 miles per hour to cross Sunshine and while traveling on Hampton, but she also stated that before nearing the intersection she slowed from that rate as she intended to stop at University and because 'I certainly didn't speed down that rough street (Hampton).' At oen point defendant was asked if she did 'stop on this occasion' and she replied 'I am quite sure I did.' However, when pressed further to ascertain definitely if she was 'standing at the time of the impact,' her answer was, 'No, I wasn't standing.' Defendant explained there was a 'great big tall pine' on the southeast corner of the intersection and 'quite a bit of shrubbery, and things there' on the southwest corner of the intersection which prevented a northbound motorist from seeing along University 'until you really get to the very intersection . . .. You have to pull out a ways before you can look down (University), you can't stop way back because you can't see. . . . I looked evidently to the right first. . . . I don't recall (looking west or left), of course, after the impact, it is very hard to know. . . . You can't say anything definitely.'

The basis for liability under the humanitarian doctrine is that plaintiff came into a position of imminent, impending and immediate danger in which injury to plaintiff was reasonably certain if the existing circumstances remained unchanged. Calvert v. Super Propane Corporation, Mo., 400 S.W.2d 133, 140(10); Dixon v. Kinker, Mo.App., 410 S.W.2d 347, 351(8). However, it is only when plaintiff comes into such a position and defendant becomes chargeable with notice of plaintiff's peril, that the doctrine seizes upon the situation and imposes upon defendant a duty to thereafter exercise proper care to avoid the threatened injury. When, if ever, defendant becomes chargeable with notice of plaintiff's peril, depends upon the reasonable appearances of the situation confronting defendant. In other words, it is the reasonable appearances of the situation that imposes upon defendant the duty to act, and this is true whether plaintiff is oblivious or not. Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947(5); Farmer v. Taylor, Mo.App....