Garber v. Scott, 35953

• Decision Date: 24 June 1975
• Docket Number: No. 35953,35953
• Citation: 525 S.W.2d 114
• Parties: Shelia GARBER, Plaintiff-Respondent, v. Amos SCOTT et al., Defendants, Amos Scott and St. James A.M.E. Church, Defendants-Appellants. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 114

525 S.W.2d 114

Shelia GARBER, Plaintiff-Respondent, v. Amos SCOTT et al., Defendants Amos Scott and St. James A.M.E. Church, Defendants-Appellants.

No. 35953.

Missouri Court of Appeals, St. Louis District, Division Four.

June 24, 1975.

Fitzsimmons & Fitzsimmons, Attorneys, Inc., Northcutt Coil, Clayton, for defendants-appellants.

Sommers & Holloran, Inc., James P. Holloran, St. Louis, for plaintiff-respondent.

NORWIN D. HOUSER, Special Judge.

Action for damages for personal injuries sustained by Shelia Garber when a motorcycle on which she was riding as a passenger was struck by a station wagon driven by Amos Scott in the intersection of Lindbergh Boulevard and Blake Avenue in St. Louis County. Plaintiff sued Scott, the church of which he was assistant pastor, and Daniel Holland, operator of the motorcycle. A jury returned a verdict for plaintiff for $25,000 against all defendants. From the judgment entered upon the verdict Scott and the church have appealed.

Appellants' first point is that the court erred in giving Instruction No. 2 submitting negligent failure to keep a careful lookout for the reason that the charge was not supported by substantial evidence.

Lindbergh Boulevard, a north-south 5-lane main trafficway, has three northbound lanes and two southbound lanes, separated by a 4-foot grassy divider strip, south of the intersection. Blake Boulevard has two eastbound lanes and one westbound lane, separated by a 4-foot median divider strip, west of the intersection, and one eastbound lane and two westbound lanes, separated by a 4-foot divider strip, east of the intersection. Traffic is controlled at the intersection by electric stop-and-go lights. Westbound traffic on Blake turns left (south) on the green light; there is no green arrow; and there is a sign requiring such traffic to yield to eastbound traffic on Blake. Lindbergh is 60--65 feet wide from east to west edge. Each lane is approximately 10 feet wide. The following diagram roughly presents the physical situation:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The collision occurred at 9 p.m. on September 8, 1971. It was dark. Street lights, vehicle lights and lights in stores in the vicinity were turned on. Visibility of cars from every corner of the intersection to every other corner was good. The general lighting condition of the intersection was 'bright'--admittedly good. Scott had 'no trouble observing the entire intersection.' The weather was dry and fair.

There was evidence from which the jury could have found the following facts: Holland, with plaintiff seated behind him, holding around his waist, approached the intersection on Blake, operating his motorcycle westwardly, intending to turn left (south) on Lindbergh. He brought the motorcycle to a stop at the intersection, because the red light was against westbound traffic. Immediately to his left, in the lane next to the divider strip, an automobile driven by one Chackes was also waiting for the light to turn green. The left-turn signal lights on both Holland's motorcycle and Chackes' automobile were blinking. Cater-cornered across the intersection, headed in the opposite direction (east) on Blake, also waiting for the light to change, was an automobile and next behind it was the station wagon driven by Scott. These two eastbound vehicles were in the south or outer lane of Blake.

Scott observed the blinking light on the Chackes automobile but did not see the blinking light on the motorcycle. When the traffic light changed from red to green each of the four vehicles above described moved forward. Chackes advanced halfway across the intersection, with little if any turning movement to the left or south, and then he stopped, yielding to eastbound traffic. The automobile in front of the station wagon moved into and out of the intersection. The motorcycle started forward, turning left in front of Chackes' stationary automobile, at a speed of 3 to 5 m.p.h. ('enough to keep balance') and continued south on Lindbergh at an undiminished speed of 3 to 5 m.p.h. The station wagon, which had stopped 26 feet west of the west curb line of Lindbergh extended, started forward, slowly accelerating as it entered the intersection to a speed of less than 10 m.p.h. Scott was intending to cross Lindbergh and continue east on Blake. Neither driver saw the other in time to avoid a collision between the station wagon and the motorcycle. Although lighting conditions and visibility were good; although Scott saw the Chackes automobile move out and observed it come to a stop, and notwithstanding there were no obstructions to prevent Scott from seeing and he could have seen the motorcycle, Scott did not actually see the motorcycle or its riders at any time until the motorcycle was straight ahead in front of him, directly in his path, and only 3 feet away. He had passed the west curb line and had passed the entire first (western-most) lane of Lindbergh before he saw the motorcyclists. At that time the front end of the station wagon was a car length (16 feet) south and the same distance west of the front end of the Chackes automobile. The station wagon was in very good operating condition. It had good brakes, tires and steering. As soon as he saw the motorcyclists Scott immediately applied the brakes, which took ahold but too late to avoid a collision. The station wagon did not swerve; its horn was not sounded. The collision occurred in the southwest quadrant of the intersection, in the second lane from the west curb line of Lindbergh. The right front part of the station wagon collided with the right rear portion of the motorcycle, throwing its occupants off and seriously injuring plaintiff. The station wagon shoved the motorcycle five feet east of point of impact and came to rest with the motorcycle under its front part.

These facts form a sufficient basis for a jury finding that Scott failed to keep a careful lookout, as submitted in Instruction No. 2. 'The proper test of failure to keep a careful lookout as a proximate cause is whether in the exercise of the highest degree of care the driver of the defendant's vehicle could have seen the other vehicle in time to have taken effective precautionaryaction in avoidance.' Marshall v. Bobbitt, Mo., 482 S.W.2d 439, 442. And see Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970); Zalle v. Underwood, 372 S.W.2d 98 (Mo.1963). As Scott started up from a stopped position and followed the car in front of him, approaching and entering the intersection, he had the duty to exercise the highest degree of care and to maintain a careful and vigilant lookout ahead and laterally ahead, Gerdel v. Broccard, 428 S.W.2d 492 (Mo.1968); 4A Missouri Digest Automobiles, k171(9), a duty 'not relieved or excused by the fact that he (was) favored by a green light nor (did) that fact confer upon him an absolute right to proceed across the intersection regardless of the movement of other traffic, Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455. While the duty of care is commensurate with the circumstances (one of which is the green light in his favor) he cannot rely solely on the 'go' signal or drive blindly into the intersection without looking. Collier v. St. Louis Public Service Co., supra; 60 C.J.S. Motor Vehicles § 360 b, p. 855. A motorist favored with a green traffic signal has the right to assume that non-emergency vehicles approaching on an intersecting street will obey the red light and stop, and to rely upon that assumption until he knows or by the exercise of the highest degree of care should know the contrary. Collier v. St. Louis Public Service Co., supra.' Politte v. Miller, 301 S.W.2d 839, 842 (Mo.App.1957). A duty on the part of Scott to act arose when in the...