Fisher v. Gunn

• Decision Date: 13 September 1954
• Docket Number: No. 43927,No. 1,43927,1
• Citation: 270 S.W.2d 869
• Parties: Jasper H. FISHER, Plaintiff-Respondent, v. Darrell G. GUNN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 869

270 S.W.2d 869

Jasper H. FISHER, Plaintiff-Respondent, v. Darrell G. GUNN, Defendant-Appellant.

No. 43927.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954.

Horace F. Blackwell, Jr., William H. Bates, Lathrop, Righter, Blackwell & Parker, Kansas City, for appellant.

John W. Schwartz, Hale Houts, J. D. James, Hogsett, Houts & James, Kansas City, for respondent.

COIL, Commissioner.

Plaintiff-respondent obtained a $12,500 verdict and judgment for personal injuries and property damage allegedly resulting from defendant-appellant's negligence. Plaintiff submitted his case solely on defendant's alleged humanitarian negligence in failing to slacken or swerve. Defendant now contends that: Plaintiff failed to make a submissible case; the court erred in excluding evidence and in giving an instruction; and the judgment is excessive.

On August 11, 1951, plaintiff, Jasper H. Fisher, accompanied by his wife and child, drove his automobile north on U. S. Highway 169 at about 25 miles per hour, intending to turn left into a driveway on the west side of the highway. About one mile south of Gashland, Missouri, when about 150 feet south of the driveway's south edge, he gave a 'left turn' hand signal and started to turn at a place about 10 feet south of the driveway, at which time he had reduced his speed to about five m. p. h. While traveling the 150 feet, he looked to the north and south and saw no traffic approaching. As he began his turn, he again looked north and saw defendant's automobile about 250 feet to the north, traveling south. Plaintiff, nevertheless, proceeded to make an 'angling' left turn from the point 10 feet south of the drive. He had partially executed the turn so that when the front wheels of his automobile were about one foot off the pavement's west edge and in the driveway, defendant's automobile struck the right side of plaintiff's automobile and caused it to 'sail through the air' and become stationary, headed east, against a telephone pole 35 feet south of the driveway, on the west side of the highway.

In plaintiff's direct examination: 'Q. Do you have any judgment as to the speed the car [defendant's automobile] was going at that time? A. No sir, I have no judgment of the speed the car was going.' In plaintiff's cross-examination: 'Q. Now, after the accident you stepped off and measured from the driveway to the point north of the driveway 225 or 250 feet where you saw Mr. Gunn's [defendant's] car at the time you began your turn, did you not? A. Yes sir. Q. You concluded from that distance and by the use, I think, of a card that you carried in your billfold, Mr. Gunn was going about 65 or 70 miles an hour at the time, did you? A. Yes.'

The only witness adduced by plaintiff who testified as to the speed of defendant's automobile prior to and at the time of impact, said that defendant's speed was 60 to 70 m. p. h.--closer to 70 than to 60; that there was no slackening or swerving of defendant's automobile prior to the impact; and that the stop lights on the rear of defendant's automobile did not show 'on' until defendant had traveled 30 feet beyond the impact point; and that defendant's automobile stopped about 75 feet beyond the impact point headed southwest with its front wheels off the pavement's west edge.

Plaintiff's further evidence was that, at the time of and prior to the collision, there was no other traffic on the highway so that at the time plaintiff blocked the west travel lane while making his left turn, the east travel lane was unobstructed.

Defendant testified, in part, that as he proceeded southwardly he was following 50 feet behind another southbound car; that he saw plaintiff's car moving at 2-3 m. p. h., when its front wheel was about 2 feet west of the center line; that at that time his (defendant's) speed was 35 m. p. h., and he was less than 50 feet north of the collision point; that at 35 m. p. h., he could have stopped or swerved within 100 feet; that at 65 m. p. h., he could not, within 225 feet, have safely swerved sufficiently to have avoided the collision.

The highway consisted of two 9-foot lanes. There was a hill crest about 1500 feet south of the driveway. One approaching from the south descended the hill, then traveled up a slight rise to the driveway at the crest of the rise. There was a hill crest about 1200 feet north of the driveway. One approaching from the north descended into a 'dip', then ascended to the driveway at the crest of the rise. Plaintiff testified that a vehicle approaching from the north could not be seen by one in an automobile 150 feet south of the driveway, if the southbound automobile was in the 'dip'. Plaintiff said he did not see defendant's automobile when he looked north from a place 150 feet south of the driveway and therefore later 'presumed' that defendant's car was then in the 'dip'.

As we view the evidence, considered most favorably from the standpoint of plaintiff, the question on submissibility resolves itself into whether plaintiff is entitled to use defendant's testimony as to the speeds of defendant's and plaintiff's vehicles, or whether defendant's speed testimony was so contrary to plaintiff's evidentiary theory at the trial as to prevent plaintiff's use of this testimony. If plaintiff is entitled to use defendant's speed evidence, there was substantial evidence to support the hypothesis of plaintiff's main instruction that, after plaintiff came into a position of imminent peril, defendant could have avoided the collision by slackening or swerving. If, on the contrary, plaintiff cannot use defendant's speed testimony, but must rely only upon the speed estimate of the only witness adduced by plaintiff on the subject, then plaintiff failed to prove an essential element of his case, viz., that, at a speed of 60 to 70 m. p. h., defendant could have slackened or swerved after plaintiff was in a position of imminent peril, and thereby could have avoided the collision. Plaintiff does not now contend that there was other evidence to support the last-stated hypothesis, but contends only that he was entitled to use defendant's speed testimony.

Before reaching that question, we note that defendant contends that plaintiff's evidence as to the location of defendant's car at the time plaintiff came into a position of imminent peril was 'completely incredible and of no probative force.' To support this assertion, defendant has submitted a series of mathematical calculations. However, we are of the opinion that defendant's calculations are based upon two fallacious premises. First, the premise that plaintiff testified, and if so, was conclusively bound by his testimony, that, at the time plaintiff looked north and failed to see defendant's automobile, defendant's automobile was in fact in the 'dip'. As noted, plaintiff did testify that because he did not see the defendant's car when he looked north when he was 150 feet south of the driveway, and because he could see vehicles not in the 'dip' for a considerable distance to the north of the collision point, he, therefore, later presumed that when he first looked north defendant's automobile was in the 'dip'. We think that the jury reasonably could have found that defendant's automobile, at the time plaintiff first looked north, was not in the 'dip' but was, in fact, farther north and was observable but that plaintiff failed to observe it. The second unjustified premise is that plaintiff's automobile traveled a distance of 10 1/2 or 11 feet from the time he began his left turn until the collision. True, on cross- examination, plaintiff, in answer to a question which contained the suggestion that he traveled 10 1/2 or 11 feet, agreed that he probably did. But plaintiff also testified that he began an 'angling turn' when he was about 10 feet south of the driveway, and that at collision time the front wheels of his automobile were about one foot into the driveway. Consequently, in determining the distance that plaintiff's automobile traveled in the turning for the purpose of determining the time consumed in the turn, the jury reasonably could have found that plaintiff's automobile traveled a greater distance during its turn than 10 1/2 or 11 feet.

We think it is a matter of common knowledge that the distance from the center of one front tire to the center of the other front tire on plaintiff's Chevrolet automobile was about 4 1/2 feet. Thus, the jury reasonably could have found that, when plaintiff began his turn, his left front wheel was about 6 inches east of the center line. At that time the front of his car was 10 feet south of the driveway. It must follow, then, that plaintiff's right front wheel traveled about the distance of the length of the hypotenuse of a right angle triangle, the other sides of which were each about 15 feet. This means that plaintiff's right front wheel traveled a distance of about 21.21 feet which, at five miles per hour, would require approximately 2.9 seconds. Defendant, about 250 feet away traveling at about 60 m. p. h., would require approximately the same 2.9 seconds to reach the collision point. If, as suggested by defendant, we allow him 3/4ths of a second reaction time, defendant still had about 2 seconds and about 176 feet in which to act to avoid the collision. And while it would seem reasonable to say that in a distance of 176 feet an automobile traveling 60 m. p. h. could, by 'angling', reach the opposite side of an 18-foot pavement and avoid an automobile blocking the 9-foot west lane, we may not take judicial notice that such could be done with safety to the driver, his passengers, and others. And, as we have pointed out, plaintiff failed to adduce any direct evidence either that defendant's automobile could have been sufficiently slackened or swerved in the 176 feet to have avoided the collision.

But, if defendant was traveling 35 m. p. h. and plaintiff was traveling 3 m. p. h. during the turn, defendant took about 4.9...