Foster v. Farmers Ins. Co., Inc.

• Decision Date: 01 August 1989
• Docket Number: No. 71365,71365
• Citation: Foster v. Farmers Ins. Co., Inc., 775 S.W.2d 143 (Mo. 1989)
• Parties: Lucille FOSTER, Plaintiff-Respondent, v. FARMERS INSURANCE COMPANY, INC., Defendant-Appellant.
• Court: Missouri Supreme Court

Page 143

775 S.W.2d 143

Lucille FOSTER, Plaintiff-Respondent, v. FARMERS INSURANCE COMPANY, INC., Defendant-Appellant.

No. 71365.

Supreme Court of Missouri En Banc.

Aug. 1, 1989.

Rehearing Denied Sept. 8, 1989.

Lance W. Lefevre, Kansas City, for defendant-appellant.

Jerry Kenter, North Kansas City, for plaintiff-respondent.

BILLINGS, Judge.

Defendant Farmers Insurance Company filed this appeal from a judgment entered on a jury verdict for plaintiff Lucille Foster in her suit for damages. The court of appeals concluded the evidence was insufficient to support a lookout submission. Transfer was granted and, applying the most favorable evidence rule, this Court affirms the judgment.

Plaintiff's cause of action arose from an accident in Blue Springs, Missouri. The only witness at trial was the plaintiff. The following undisputed facts appear from her testimony.

On August 29, 1983, a clear, sunny day, at around 8:00 a.m., plaintiff Lucille Foster was walking north on the west shoulder of Fifteenth Street in Blue Springs, Missouri. Fifteenth Street is a paved two-lane, two-way street with gravel shoulders five to seven feet wide and runs north-south. The road is flat, and plaintiff could see "maybe 200 yards" down the road in front of her. She was accompanied by her mother as they walked side-by-side on the shoulder, with plaintiff on the side nearest traffic.

After a number of southbound cars had passed the plaintiff without event, her shoulder was struck and she was injured by the tailgate section of a large black pickup truck which was driving south. The driver of the truck did not stop and was never identified.

Plaintiff testified she was walking approximately one foot from the pavement; that she first saw the pickup that struck her when it was 30 to 40 feet away; that it was entirely upon and six to twelve inches from the edge of the pavement; that she did not see any part of the truck sticking over onto the shoulder; that the truck did not swerve, but continued going straight; that when the front of the truck passed her, it was only six inches off her right shoulder, and that she moved away from the pavement a few inches as the truck approached her. She also testified that she never saw the truck leave the pavement.

Plaintiff brought suit against defendant Farmers Insurance Company under an uninsured motorist clause in a policy issued to her and her husband by Farmers. Her petition, inter alia, alleged the hit and run driver was negligent in failing to maintain a proper lookout. Defendant does not dispute the fact that the truck struck the plaintiff, nor that it caused her injuries.

Plaintiff's case was for the jury unless, taking as true all her evidence that is not entirely unreasonable or opposed to physical law, viewed in the light most favorable to her case, and giving her the benefit of all reasonable inferences therefrom, there is no room for reasonable minds to differ on the issues. Vaeth v. Gegg, 486 S.W.2d 625, 628 (Mo.1972); Gregory v. Robinson, 338 S.W.2d 88, 91 (Mo.banc 1960); DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633 (Mo.banc 1953). The Court finds, for the reasons which follow, that plaintiff's theory that the driver negligently failed to keep a lookout for her was properly submitted to the jury.

The obligation of a driver to maintain a careful lookout imposes the "continuous and inescapable duty to maintain a vigilant lookout ahead and laterally ... in such observant manner as to enable him to see what one in the exercise of the highest degree of care for the safety of himself and others could and should have seen under similar circumstances." Graham v. Conner, 412 S.W.2d 193, 200-201 (Mo.App.1967); Braun v. Hoffmeister, 366 S.W.2d 406, 408 (Mo.1963); Section 304.010, RSMo (1986). The driver is also under a duty to take effective precautionary action "when a person, in the exercise of the highest degree of care, would have reason to anticipate danger." Thomas v. Wade, 361 S.W.2d 671, 674 (Mo. banc 1962); Section 304.010, RSMo (1986). The driver's obligation to maintain a lookout extends to a pedestrian regardless of whether they are standing upon the shoulder, Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938 (Mo.1947); Skiles v. Schlake, 421 S.W.2d 244, 246 (Mo.1967); Graham, 412 S.W.2d at 201, or upon the traveled part of the roadway, Ferdente v. St. Louis Public Service Company, 247 S.W.2d 773, 778 (Mo.1952); Schmidt v. Allen, 303 S.W.2d 652, 659 (Mo.1957).

Submission of negligence on this theory requires that there be substantial evidence from which a jury could find that the driver, in keeping a careful lookout, could have seen the plaintiff in time to have taken effective precautionary action. Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978). There must also be evidence that the driver had the means to avoid the collision and failed to use them. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 772 (Mo.1965). The driver "must be held to have seen what looking would have revealed" unless the view was obstructed, Graham, 412 S.W.2d at 201. His failure to do so is negligence as much as if he had not looked at all. Schmidt, 303 S.W.2d at 657; Haymes v. Swan, 413 S.W.2d at 319.

Defendant does not dispute the fact that the driver could have seen the plaintiff as he approached her. Plaintiff testified that there were no cars in the lane opposite the truck and that she saw the truck in time to move slightly to her left, allowing the inference that the driver had sufficient time and opportunity to swerve and avoid hitting the plaintiff.

Reconciling plaintiff's estimates of her position in the way most favorable to her case, the jury could have believed that the truck was six inches from her shoulder when the front passed her. Driving within six inches of her body at a speed of thirty-five miles per hour is dangerous and it is reasonable for the jury to have determined that in the exercise of the highest degree of care, the driver of the truck should have known that, if he did not swerve, the path of his truck would take him dangerously close to the plaintiff. See Schmidt, 303 S.W.2d at 659.

Defendant contends that the accident could not have occurred under the facts as related by the plaintiff. However, there is no dispute that the accident occurred, and evidence, however improbable, must not be withdrawn from the jury unless it appears to be so clearly and irrefutably impossible that reasonable minds cannot entertain any other conclusion. Hardin v. Illinois Central R. Co., 334 Mo. 1169, 70 S.W.2d 1075, 1079, cert. denied, 293 U.S. 574, 55 S.Ct. 86, 79 L.Ed. 672 (1934); Garrison v. Ryno, 328 S.W.2d 557, 561 (Mo.1959); Lansford v. Southwest Lime Co., 266 S.W.2d 564 (Mo.1954). "A party is not conclusively bound by his mere estimate of time, speed or distance, or the position of an automobile or train at the time of an accident" Smith v. Siercks, 277 S.W.2d 521, 525 (Mo.1955), which is not at odds with his theory of the case.

Disregarding plaintiff's estimates of time, speed, distance, and the position of the truck, except as they favor her case, plaintiff's evidence indicates that for the accident to have occurred as she related it, the rear of the truck need only have moved over six inches in the time it took to pass her. Such an occurrence may seem unlikely, but it is not clearly opposed to physical law. "[H]owever improbable the testimony of the witness who testifies to a fact not in itself impossible may appear in the ordinary course of events its credibility is for the jury." Jenkins v. Kurn, 346 Mo. 904, 144 S.W.2d 76, 79 (1940), cert. granted, 312 U.S. 675, 61 S.Ct. 740, 85 L.Ed. 1116, rev'd on other grounds, 313 U.S. 256, 61 S.Ct. 934, 85 L.Ed. 1316, on remand, 348 Mo. 942, 156 S.W.2d 668 (1941); Hardin, 70 S.W.2d at 1079; 64 C.J. 357, § 354.

The trial court did not err in giving plaintiff's instruction number five submitting failure to keep a lookout, and defendant's motions for directed verdict and judgment notwithstanding the verdict were properly overruled.

The judgment is affirmed.

BLACKMAR, C.J., RENDLEN and HIGGINS, JJ., and DOWD, Special Judge, concur.

ROBERTSON, J., dissents in separate opinion filed.

WELLIVER, J., dissents and concurs in separate dissenting opinion of ROBERTSON, J.

COVINGTON, J., not sitting.

ROBERTSON, Judge, dissenting.

I respectfully dissent. In so doing, I adopt the unanimous opinion of the Court of Appeals, Western District, reversing the judgment of the trial court. That opinion, authored by the Honorable Anthony P. Nugent, Jr., follows without further attribution.

On August 29, 1983, ...