Harrellson v. Barks
| Decision Date | 26 June 1959 |
| Docket Number | 7744,Nos. 7740,s. 7740 |
| Citation | 326 S.W.2d 351 |
| Parties | Florence Louise HARRELLSON and Florence Louise Harrellson, Administratrix of the estate of Glenn Harrellson, Plaintiff-Appellant, v. Barbara Hopkins BARKS, Defendant-Respondent. Florence Louise HARRELLSON and Florence Louise Harrellson, Administratrix of the estate of Glenn Harreilson, Plaintiff-Respondent, v. Barbara Hopkins BARKS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Riddle & Baker, Malden, Briney & Welborn, Bloomfield, for Florence Louise Harrellson.
Powell & Jones, Dexter, for Barbara Hopkins Barks.
There are two cases which involve the appeals of opposing parties from the same judgment. Since there can be only one judgment, the cases are consolidated, but in purpose of hoped-for clarity they will be considered as separate cases.
Case No. 7740 is plaintiff's appeal in a humanitarian negligence intersection case. Plaintiff obtained a verdict on two counts which were concerned with personal injury and one count which was concerned with property damage. The court thereafter sustained defendant's motion for judgment in accordance with motion for directed verdict at the close of the evidence on the counts which concerned personal injury and, in the alternative, sustained defendant's motion for new trial in respect to such counts. In this, plaintiff's appeal, the first and principal question is whether plaintiff made a submissible case.
The scene of the accident is well depicted by a scale map or plat which plaintiff placed in evidence. This shows the intersecting streets, sidewalks, and the houses on the four corners. Most of the distances and measurements are marked on the plat by the engineer. Where they are not set forth it is not difficult to arrive at distances by use of the scale.
Both streets are asphalt or bituminous substance. The pavement on Castor Street, which runs east and west, is 20 feet wide. The pavement on Mulberry, which runs north and south, is 19 feet wide on the north and 21 feet wide on the south of the intersection. Thus the paved intersection proper, that is, that portion of the crossing common to both street, 1 is approximately 20 feet square, although the corners are rounded. The sidewalks on each side of Mulberry (the north-south street) sit back 14 feet from the pavement. The sidewalks on Castor Street (the east-west street) sit back 24 1/2 feet on the south side, 18 feet on the (west) north side of the intersection, and 26 1/2 feet on the (east) north side. Between the sidewalks and the pavement are gradually sloping ditches.
The pavement was dry. Plaintiff was going south on Mulberry in a two-door 'Hudson Rambler,' and the defendant was driving east on Castor in a Mercury. The automobiles came together near the center, but in the southwest quadrant, of the intersection.
Plaintiff testified that she drove her Hudson south down the west side of Mulberry Street at a speed of 20-25 miles per hour. As she approached the sidewalk which runs down the north side of Castor Street she applied her brake and slowed her automobile, not to a complete stop, but slow enough that she could, and did (by manual shift), shift her car into second gear. She looked to the west (her right) and saw the defendant, Barks, approaching from the west. She did not estimate the speed or distance of the Barks car but said it was opposite the third house down the street. After seeing the Barks car and shifting into second gear, she 'just eased on through the intersection' at a speed which she estimated at 15-20 miles per hour. She looked to the left but did not look back to the right until she 'heard a noise.' At that time the defendant's car was almost upon her. She (plaintiff) started to swerve to the left, and almost immediately her car was struck at the right door, opposite the driver. She says that at the time of the impact she was on her right (west) side of Mulberry Street and 'the front part of' her car was past (south of) the (east-west) center of the intersection. Neither the testimony nor plaintiff's plat shows the distance between 'the third house down the street' and the intersection. The distance from the north line of the intersection proper to the north line of the sidewalk, slightly north of which plaintiff looked and saw defendant, braked, slowed, and shifted into second gear before proceeding forward, is 22 feet.
Other facts to which plaintiff testified were that, as she came into the intersection:
'Q. And you could have turned to the left there, * * *? A. Yes, I could have made a left-hand turn there.
Defendant testified that she turned on Castor Street one block west, that she came down the street at 20-25 miles per hour, but slowed down to 15 or 20 miles per hour as she approached the intersection; that as she was between the sidewalk and the intersection and the front of her car was near the west intersection line she first saw plaintiff's car, north of the sidewalk on the north of Castor (the approximate place she marked was some 26 1/2 feet north of the intersection); that she immediately applied her brakes and went forward in a continuous skid across the west lane of Mulberry Street to the point of impact. She said her skid marks extended from the sidewalk line to point of impact, and in this she was supported by a picture exhibit and the testimony of a police witness. She said her brakes were in good condition.
The only stopping distance proved was that of defendant's Mercury based on 20 miles per hour. This distance is 22 feet reaction time and 18 feet braking distance.
Plaintiff's witness Buford Brown testified in reference to plaintiff's map Exhibit A. He said he observed the collision from the front porch of the second house east on the north side of Castor Street. He was some 100 feet northeast of the center of the intersection.
He was alerted to the probability of impending collision by the sound and scream of defendant's tires on the pavement ('and she left black marks'). He said, 'That's how come me to look up * * * and I heard these tires and I looked up and the Mercury was the first I saw.' He did not estimate the distance in feet defendant's Mercury was west of the intersection, but the witness was 'oriented' to the first house west of the intersection on the south side of the street and he placed an X opposite this house as the place where he first saw the Mercury after his attention was attracted to it. The engineer's measurement markings extend only 60 1/2 feet west of the intersection, but, by scale, the place where the witness first saw the skidding Mercury ('she rode her brakes') was approximately 68 feet from the west edge of the intersection. His estimate of the Mercury's speed as it (obviously skidding) approached the intersection was 'between 25 and 30' miles per hour.
At approximately the same time he saw plaintiff's Hudson Rambler. It was then, as he said, its front end at a place which he marked approximately even with the south line of the sidewalk extending along (the west portion of) the north side of Castor Street and 18-20 feet from the north line of the intersection. She, plaintiff, crossed the intersection at a speed 'going right at 20.'
The next position he gives is when plaintiff's Hudson was 'right in the middle of the intersection,' about a foot from it. He says that at that time the defendant's car was about 10-15 feet from the point of impact. The defendant let up on her brakes, the front of her car came up, and it ceased slowing its speed. He placed the point of impact at a place which is a little north of the center of the south half of Castor Street and a short distance west of the center line of Mulberry Street. He said that at the time of the collision the plaintiff had her left wheels 'just a little over the center line of Mulberry Street.' He also said that defendant's eastbound skid marks ended slightly east of the sidewalk on the west side of Mulberry and extended back (west) therefrom a distance of 20-25 feet.
The witness was presented with defendant's exhibit picture, which shows clear and unmistakable tire marks extending continuously across the west side of Mulberry up to the point of collision. He said he would not say they were there that day like that as far as he knew; that he wasn't sure of that, but 'I'd say she let up on her brakes.' The whole import of his testimony, however, is that defendant did let up on her brakes some 10 or 15 feet west of the point of the impact. The witness stated he did not know defendant's speed after she let up on her brakes.
As to the zone of peril, the defendant was on the right. There is no evidence of stop or traffic control markers. The plaintiff looked and saw the defendant approaching. She was not oblivious and the zone of peril was therefore considerably shortened. It did not begin until plaintiff was so close to the pathway of defendant's car that it was certain she could not stop, slacken speed or swerve and avoid the collision. 2 The plaintiff braked and slowed her car at the approximate sidewalk line, shifted into second gear, and continued forward at a reduced speed. In determining the zone of peril the defendant's duty arose, and she was entitled to act, upon 'reasonable appearances.' 3 The plaintiff testified that she could have turned to the left. 4 She also testified that 'more than likely' she could have stopped her car before the collision if she had known the defendant was going to hit her. 5
These facts no doubt influenced the plaintiff to choose her theory and submit (by her main instruction) upon the proposition that plaintiff came into imminent peril when she entered the...
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