Gousetis v. Bange
| Decision Date | 11 March 1968 |
| Docket Number | No. 1,No. 52727,52727,1 |
| Citation | 425 S.W.2d 91 |
| Parties | Richard GOUSETIS and Geraldine Gousetis, Appellants, v. John Anthony BANGE, Respondent |
| Court | Missouri Supreme Court |
Morris A. Shenker and Frank B. Green, Jr., St. Louis, for appellants.
Lloyd E. Eaker, Clayton, for respondent.
HIGGINS, Commissioner.
Action for $25,000 damages for wrongful death. Plaintiffs appeal from verdict and judgment for defendant.
Richard Michael (Rickey) Gousetis, plaintiffs' 8-year-old son, died as a result of a collision between his bicycle and an automobile owned and operated by defendant. The casualty occurred at approximately 6:00 p.m., July 10, 1964, at the intersection of Lindbergh Walk and Lindbergh Drive in the 7600 block of Lindbergh Drive in Richmond Heights, Missouri. Rickey rode his bicycle north on Lindbergh Walk and, after entering the eastboundtraveled portion of that street, was struck by the right front of defendant's eastbound automobile.
Appellants seek a new trial contending reversible error in giving Instruction No. 3 and, in addition to an attempted defense of Instruction 3, respondent contends that error, if any, in the instruction is harmless because he should have had a directed verdict at the close of all the evidence in that plaintiffs failed to show any negligence of defendant was the proximate cause of plaintiffs' injury and plaintiffs' son was guilty of contributory negligence as a matter of law.
Lindbergh Drive is a generally east and west street in a residential neighborhood. It consists of two eastbound traffic lanes with a total width of 20 feet curb to curb and two westbound lanes, also of 20 feet total width. The east and west lanes are separated by a 50-foot parkway. The eastbound portion of the street is straight and fairly level in the vicinity of the casualty. Lindbergh Walk is a concrete walkway running generally north and south connecting four other east-west streets. It is for public pedestrian travel and intersects and crosses Lindbergh Drive at a point about midway of the 7600 block. There was no stop sign at the crossing. The part of the walk involved runs south to north between Hiawatha and Lindbergh Drive and lies between a house on the east side of the Walk at 7616 Lindbergh Drive and one on the west side at 7628 Lindbergh Drive. 7628 Lindbergh Drive was occupied by a Graham family whose son Paul was a playmate of plaintiffs' deceased son. The walkway had a regular street name, 'Lindbergh Walk,' on a standard located at the south curb of the street. A white picket fence paralleled the east side of the Walk. It was 24 inches high at its north or street end near the sidewalk and 26 inches high at the end nearest the house at 7616 Lindbergh Drive. There were some shrubs along the west side of the Walk between the sidewalk and the Graham house at 7628 Lindbergh Drive. As one came north on Lindbergh Walk to Lindbergh Drive the grade was downhill.
The building line for homes fronting the south side of Lindbergh Drive was fairly uniform at 40 to 46 feet south of the south curb of the street. The Graham home was set back 40 feet from the south curb and the garage attached to the east side of the house was set back 46 feet. The surface of the driveway to Graham's garage was higher than Lindbergh Walk which it paralleled. The maximum difference of 26 inches occurred near the building line.
The weather was clear and the sun was shining at the time of the casualty. Defendant, aged 18, was driving his 1953 Chevrolet east on Lindbergh Drive with a friend, Robert Stewart, a front-seat passenger. As he approached Lindbergh Walk, defendant was driving in the eastbound lane nearest the parkway at a speed of 20 to 25 miles per hour.
Rickey was four feet, five inches tall and was coasting northward and downgrade on Lindbergh Walk toward Lindbergh Drive on his sister's 26-inch, 2-wheel bicycle. William E. Trampier and his son Craig were at this time riding bicycles westwardly in the westbound lanes of Lindbergh Drive approaching the crossing of Lindbergh Walk. Rickey became visible to them as he cleared the front building line of the two houses adjacent to the Walk. His head was 'down' as he coasted toward the street.
Defendant first noticed Rickey when his automobile reached a point in the street 'about even with the walkway.' At that time Rickey's speed was about nine miles per hour and he was a foot north of the south curb of the street. Immediately the front of the right headlight and hood struck the front wheel of the bicycle. The impact threw the boy about 15 feet ahead and clear of the car. Defendant applied his brakes immediately on impact and brought his automobile to a stop within 15 feet without running over the boy's body.
Defendant had lived all his life at 7659 Lindbergh Drive, four houses west of the Walk and on the westbound side of the street. He was aware of the likelihood of children in the area and recalled riding his bicycle on the Walk as a child. He did not look toward the building line for children on the Walk on this occasion. He could not say why he did not see Rickey until he was just north of the south curb. He and Robert Stewart returned to the scene the following day and examined it because he could not imagine how Rickey could have gotten out into the street so suddenly without his seeing him. His vision was not obscured by any parked cars at the south curb.
Plaintiffs' evidence on the effect on visibility of the shurbbery on the west side of Lindbergh Walk consisted of photographs which Mrs. Gousetis testified accurately depicted the condition of the shrubs on the day of the casualty. Defendant had testimony unsupported by photographs to the effect that the shrubbery was taller, denser, and more continuous than the condition depicted by the photographs. They were evidence that the shrubbery shown by the pictures would not obscure persons using the Walk from the vision of an eastbound motorist.
Also in evidence were photographs taken from 50 and 85 feet west of the Walk showing an eastbound motorists' opportunity to see the Walk and street when looking to the east and southeast. These, too, were evidence that persons using the Walk would not be obscured to a motorist at those distances by either the shrubbery or the elevation difference between the Walk and the driveway and terraces to the west.
This evidence is sufficient for the jury to say whether defendant, by keeping a proper lookout, could have seen plaintiffs' decedent in time to have avoided the collision. Support for this conclusion may be found in many cases but because of its many similarities, see Hildreth v. Key, Mo.App., 341 S.W.2d 601, 605--608(3--14).
In support of his contention that plaintiffs failed to show any negligence of defendant to be the proximate cause of their injury, respondent cites Zalle v. Underwood, Mo., 372 S.W.2d 98, 102(3): 'Negligent failure * * * to keep a proper lookout cannot be established in the absence of substantial evidence from which a jury could find that in the exercise of the highest degree of care he could have seen (decedent) * * * in time thereafter to have taken effective precautionary action'; Harris v. Lane, Mo.App., 379 S.W.2d 635, 639(9): 'Absent evidence as to when and where defendant could have seen plaintiff, and where his automobile was at the time, the charge that defendant failed to keep a proper lookout rests on nothing more than surmise and conjecture'; and Williams v. Boone, Mo.App., 413 S.W.2d 36, 40(3): '* * * it is error to submit a case based upon alleged failure to keep a lookout unless there is evidence from which the jury could find that in the exercise of the required degree of care the party so charged could have seen the person or object before he did see it.'
Respondent's argument is that his view of the walkway was obstructed by terraces parked cars, and shrubbery, preventing him from seeing decedent until he came out into the street; that there was no evidence of the bicycle's speed; that there was no evidence to show where his car was when he could first have seen the bicycle, or that he could have seen the boy sooner than he did.
There was evidence depicting and describing the terraces and shrubbery in relation to the Walk from which the jury could find that a motorist in defendant's situation could have seen persons or objects of decedent's height in the 46 feet of Lindbergh Walk running northward from the building...
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