Hall v. Clark

• Decision Date: 14 January 1957
• Docket Number: No. 45301,No. 2,45301,2
• Parties: Mary HALL, Appellant, v. George CLARK, Respondent
• Court: Missouri Supreme Court

Page 344

298 S.W.2d 344

Mary HALL, Appellant, v. George CLARK, Respondent.

No. 45301.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1957.

Rehearing Denied Feb. 11, 1957.

Thomas F. Manion, J. D. Leritz, J. L. Leritz, St. Louis, for (plaintiff) appellant.

Ernest E. Baker, St. Louis, for respondent.

BOHLING, Commissioner.

This is an intersection collision case between a Plymouth and a Chevrolet automobile. Mary Hall sued George Clark, who filed a counterclaim. The jury found the issues against the plaintiff on plaintiff's claim and in favor of defendant on his counterclaim; and, in accordance with the verdict, judgment was entered for $12,500 against plaintiff. Plaintiff contends error was committed in the giving of instructions, in the admission and exclusion of evidence, and that the verdict is grossly excessive.

Plaintiff predicated a verdict on negligence under the humanitarian doctrine in that defendant failed to sound a warning, or failed to stop, or to reduce speed, or to swerve his automobile.

Defendant's instructions were to the following effect: No. 1 was an abstract instruction informing the jury every driver of an automobile was required to exercise the highest degree of care and a failure to exercise the highest degree of care constituted negligence. No. 3 was a defendant's burden of proof instruction. No. 4 predicated a defendant's verdict upon findings that plaintiff failed to come to a complete stop for the intersection and that such failure to stop constituted negligence, if the jury found defendant was not negligent as submitted in the instructions. No. 6 was a defendant's converse humanitarian instruction. No. 7 was a sole cause instruction. No. 13 was defendant's measure of damages instruction.

Plaintiff attacks defendant's sole cause instruction on several grounds, including the ground that the evidence did not present a sole cause situation. The instruction predicated a verdict for defendant on plaintiff's claim on findings that plaintiff drove her car 'to the south of a motor truck at said intersection, and that she emerged from the south side of said motor truck and drove into the path of defendant's automobile, at a time when the defendant's automobile was approaching and was so near to plaintiff, and traveling at such a rate of speed that plaintiff, in the exercise of the highest degree of care, knew or should have known that a collision was likely to result,' and a finding that such action on the part of plaintiff was negligence and the sole, direct and proximate cause of the collision. It, in form, is much like instructions approved in Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 465; Jants v. St. Louis Pub. Serv. Co., 356 Mo. 985, 204 S.W.2d 698, 701[1-8]; Schlemmer v. McGee, Mo., 185 S.W.2d 806[1, 2].

Defendant says plaintiff failed to make a submissible humanitarian case and cannot complain of error in defendant's sole cause instruction or error in its abstract instruction (No. 1). Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, 960[11-13]; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 899, 900; Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, 769; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600, 604. The issues call for a statement of the facts.

The collision occurred at the intersection of Bremen, an east-west street, and North Florissant boulevard (for brevity herein designated Florissant), a north-south street, in the city of St. Louis between 4:00 and 4:15 p. m. August 8, 1949, a clear, dry day. Each street is 36 feet wide. Bremen is level, but there is a slight downgrade for southbound traffic on Florissant at Bremen. There were 'stop' signs at both corners on Bremen for traffic approaching Florissant, but none on Florissant for Bremen. The westbound traffic 'stop' sign was about 19 or 20 feet east of the curb on Florissant and about 20 feet farther east was a 'No Parking' sign. At the northeast corner of the intersection is a small lawn, a sidewalk and then a brick building, its west wall being 10 or 12 feet east of the curb of Florissant.

Defendant was driving a 1947 Chevrolet southwardly on Florissant, with his wife and Mrs. Doris Finch on the seat with him. His car was proceeding about 7 or 8 feet east of the west curb and 2 or 3 feet west of the center line of Florissant, and traveling 25 to 30 m. p. h. The Chevrolet was in good operating condition.

Plaintiff (her only witness to the collision) was driving a 1949 four-door Plymouth westwardly on Bremen, following a course about 8 feet south of the north curb and about 2 feet north of the center line of Bremen. She had been driving for 35 years and was familiar with the intersection. She was traveling about 20 to 25 m. p. h. as she approached Florissant. She came to a complete stop about even with or a little past the stop sign, about 19 feet east of Florissant, and had reached a speed of approximately 12 to 15 m. p. h. when her car was struck. She saw an eastbound Krey Packing Company Ford, driven by Raymond Faupel, approaching Florissant, which stopped west of Bremen for the intersection. When she stopped she looked to the north and to the south. Then, as she 'eased up' to the crosswalk, she again looked to the south and to the north, and as there was no traffic from the north or south on Florissant, she proceeded to cross the intersection with her car in low gear. She estimated she could see 150 to 200 feet north and 75 feet south on Florissant. Defendant offered in evidence part of a deposition by plaintiff to the effect that she stopped at the stop sign and that she did not look north or south on Florissant after she started up. Plaintiff looked straight ahead as she crossed the intersection and did not see defendant's car. When the front of plaintiff's car was about at the west crosswalk and the front wheels about at the west curb of Florissant, she heard an application of brakes and 'almost simultaneously,' the rear of the right rear door and rear fender of her car was struck by the front of defendant's car and plaintiff's car was knocked against the front bumper of the Krey Packing Company Ford parked in the south lane of Bremen at the west edge of the west crosswalk of the intersection. The Plymouth stopped at an angle, headed northwest, with the right rear wheel perhaps in the intersection and most of the car west of the west curb line of Florissant.

For the defendant there was testimony that northbound and southbound traffic was moving on Florissant at the time and place in question; that defendant was traveling 25 to 30 m. p. h.; that plaintiff did not stop but entered and proceeded across the intersection at the speed of 20 to 25 m. p. h., and when plaintiff's car was 2 or 3 feet past the center line of Florissant it was struck on the right rear door by defendant's Chevrolet. Defendant and Mrs. Finch testified that a truck was parked at the north curb of Bremen east of Florissant and west of the stop sign. Defendant testified plaintiff was traveling south of this truck, which was higher than a passenger car, and he first saw plaintiff's car as it was emerging from south of the truck and coming into the crosswalk. 'I thought that she was going to run right out in front of me, and I immediately applied by brakes.' Defendant was then somewhere like 30 or 40 feet or 50 feet from the north curb of Bremen. He also testified that plaintiff traveled 50 to 65 feet from the point where he first saw her to the point of collision. Defendant's witnesses Lonnie Huitt and Raymond Faupel put the speed of the Plymouth at 15 to 20 m. p. h. and 15 m. p. h., respectively.

Plaintiff testified there were no automobiles at the intersection, parked or moving, other than her car and the Krey Packing Co. Ford. Huitt testified that a truck was parked at the east curb of Florissant, north of Bremen sidewalk, and as he looked between this truck and the building he saw the Plymouth coming through the 'stop' sign on Bremen. Defendant did not see this truck. Faupel stated that the only parked car near Florissant and Bremen was at the south curb of Bremen at least 32 feet east of Florissant.

Faupel stated that defendant did not swerve his car but it 'shot off' to the left after the impact.

Plaintiff testified she heard no horn. Defendant's witness Faupel testified defendant did not sound his horn. No witness testified to hearing a horn. Defendant testified: 'Q. Did you sound a horn? A. I don't remember. Q. Did you sound your horn? A. I don't know.'

The collision occurred in the northwest quadrant of the intersection. The front wheels of plaintiff's Plymouth were even with the west curb of Florissant and the north side of the Plymouth was 8 feet south of the north curb of Bremen. The jury could find that she traveled about 56 feet after stopping at the stop sign before her car was struck. She was oblivious of defendant's automobile. Defendant stated he saw plaintiff coming into the east crosswalk, and that plaintiff traveled 50 to 65 feet thereafter. Plaintiff traveled at least 46 feet after defendant saw her car. Her average speed was 6 or 7 1/2 m.p.h. At 6 m.p.h. she moved about 9 feet a second; and at 7 1/2 m.p.h., about 11 feet a second. Four seconds elapsed after she 'started up' before the collision occurred. Although defendant's witness Huitt's testimony is somewhat confusing he testified that he was driving south about 30 to 35 feet back of defendant, and when he first saw plaintiff's car 'coming through the stop sign' he was ('around that neighborhood, approximately') 150 feet north of the intersection. Plaintiff was not necessarily bound by defendant's estimates of speed and distance offered by her as admissions against defendant's interest. Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280[2-5], and cases cited.

A witness for plaintiff testified on direct examination that a 1947 Chevrolet traveling 25 m.p.h. could stop in 30 to 34 feet...