Harris v. Rowden
| Decision Date | 09 September 1957 |
| Docket Number | No. 2,No. 45932,45932,2 |
| Citation | 305 S.W.2d 25 |
| Parties | Hugh H. HARRIS, Respondent, v. Delmo D. ROWDEN, Appellant |
| Court | Missouri Supreme Court |
Gene J. MacElhern, Thomas E. Hudson, Hudson, Cavanaugh & Fox, Kansas City, for appellant.
Thos. E. Deacy, Thos. E. Deacy, Jr., Deacy & Deacy, Kansas City, for respondent.
BOHLING, Commissioner.
This appeal involves an automobile collision at a highway intersection. Hugh H. Harris sued Delmo D. Rowden for $17,941.14 damages. Defendant filed an answer and counterclaim, seeking $20,000 damages. Plaintiff's claim was submitted on grounds of primary and humanitarian negligence. Defendant's claim was submitted on grounds of primary negligence. The jury returned a verdict for defendant on plaintiff's claim and for defendant and against plaintiff on defendant's counterclaim for $5,500. The court sustained plaintiff's motion for new trial on the ground of error in giving certain instructions for defendant, reinstating plaintiff's claim. Defendant has appealed. We have jurisdiction by reason of the amount in dispute, plaintiff's claim plus defendant's judgment. Fulton v. City of Lockwood, Mo., 269 S.W.2d 1; McDonald v. Logan, 364 Mo. 382, 261 S.W.2d 955.
The accident occurred at the intersection of U. S. Highway No. 50 and Colburn road in Jackson County, Missouri. Highway No. 50 is a divided highway at the scene of the collision, has two 22-foot paved slabs with a parkway of 24 to 30 feet between the slabs, and extends northwesterly and southeasterly. The east slab is for northbound and the west slab is for southbound traffic. Colburn road is a two lane east-west highway with a 36-foot pavement. The pavement flares out at all the corners to facilitate turning at the intersection. There was a stop sign for westbound traffic on Colburn at the northeast corner of the intersection some distance east of the east edge of the northbound slab of No. 50, but its exact location was not established. There was no stop sign for westbound traffic on Colburn for the southbound slab of No. 50. On account of the angle involved in the intersection, the distance from the east edge of the northbound slab to the east edge of the southbound slab of No. 50 was 60 to 62 feet. An electric caution flasher signal, showing 'Slow 40 miles an hour,' was two blocks or more north of the intersection and an intersection sign was 'pretty close' to the intersection for southbound traffic on No. 50.
It was dark at the time of the collision, between 7:00 and 7:30 p. m., November 11, 1952. The night was clear. The pavement was dry. The highways were straight and level. The only automobiles anywhere near the intersection were the two cars involved. There were no obstructions to the view of plaintiff or defendant.
Defendant lived at Richland, Missouri. He drove his father's 1941 Oldsmobile sedan to Kansas City that morning in the hope of finding work. He stated the headlights, brakes and horn of his car were in proper operating condition. He drove to Kansas City in three or four hours and estimated the distance to be 150 miles. He was on his way home on the west half of the southbound lane at the time of the accident.
The issues call for a consideration of the evidence favorable to plaintiff. Plaintiff, driving, was westbound in his 1946 Oldsmobile sedan on Colburn road. Mrs. Margaret Pennington occupied the front seat with him. Plaintiff had the headlights of his car on, but defendant did not. Plaintiff stopped at the stop sign at the northeast corner of the intersection. He looked both ways for traffic on No. 50. He could see no approaching traffic. He started across the intersection. As he proceeded he continued to look for approaching traffic on No. 50, and testified there was no southbound traffic on No. 50 or eastbound traffic on Colburn road, and no lights of any other automobile that he could see any place. He did not see any cars. He could have seen a car with its headlights on. He proceeded across the southbound lane of No. 50 without stopping, there being no stop sign there for westbound traffic on Colburn. When the front 7 or 8 feet of his sedan had cleared the west edge of the southbound lane of No. 50 and without his seeing any lights or hearing any horn or other warning signal of an approaching car, the right side of his sedan from the windshield to the rear bumper was struck headon by defendant's car. Plaintiff did not slacken his speed after he started up at the stop sign, and estimated he reached a speed of 6, 8 or 10 m.p.h. Defendant estimated plaintiff reached a speed of 10 or 15 m.p.h. The width of an automobile was established at 6 feet or a few inches less, and there was 12 to 13 feet of the southbound lane open for southbound traffic on No. 50 east of plaintiff's sedan.
Some testimony given by defendant at the trial and in a deposition offered in evidence by plaintiff tended to aid plaintiff's case. Defendant saw the caution sign and the crossroads sign. Upon passing the caution sign he reduced his speed to 40 m.p.h. He traveled with his right wheels within three or four feet of the west edge of the southbound lane. When he was 200 feet north of the intersection be first saw plaintiff's car about half way across the northbound lane. Defendant watched plaintiff's car. He did not know there was no stop sign for westbound traffic on Colburn for the southbound lane of No. 50, and thought plaintiff would stop. Defendant was not thinking about stopping. He was about 100 feet north of the intersection when he realized there was danger of a collision and was within 75 or 80 feet of the intersection when he first thought of putting on his brakes. Plaintiff's car had moved into the southbound lane four or five feet when defendant applied his brakes and defendant had his brakes on and was sounding his horn when 40 to 50 or 30 to 40 feet from the intersection. Defendant made no effort to swerve his car. He thought he could stop in 200 feet when traveling 40 m.p.h.
D. E. Millsap, of the State Highway Patrol, investigated the accident. He testified defendant's car left skid marks of 45 to 48 feet in length on the extreme west lane of No. 50 before the impact; that the skid marks came straight ahead to the point of impact; and that defendant told him he was traveling 40 m.p.h. at the time of impact.
There was other evidence of record that defendant was traveling 40 m.p.h. at the instant of impact.
Defendant adduced evidence in support of his counterclaim. It need not be developed.
The occupants of both automobiles received injuries in the collision.
Plaintiff contends defendant's instruction No. 10 erroneously relieved defendant of any duty under the humanitarian doctrine until plaintiff's perilous position became apparent to 'defendant, Delmo D. Rowden'; and erroneously directed a verdict for defendant upon the whole case, ignoring plaintiff's primary negligence submissions. The instruction reads (emphasis supplied):
'The Court instructs the jury that there was no duty resting upon defendant, ...
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