Hawkins v. Whittenberg

• Decision Date: 17 September 1979
• Docket Number: No. 10655,10655
• Citation: 587 S.W.2d 358
• Parties: Catherine HAWKINS, Administratrix of the Estate of Selma Mary Winfrey, Plaintiff-Appellant, v. Newell WHITTENBERG, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 358

587 S.W.2d 358

Catherine HAWKINS, Administratrix of the Estate of Selma Mary Winfrey, Plaintiff-Appellant, v. Newell WHITTENBERG, Defendant-Respondent.

No. 10655.

Missouri Court of Appeals, Southern District, Division One.

Sept. 17, 1979.

John R. Courtney, Springfield, for plaintiff-appellant.

E. C. Curtis, Farrington, Curtis, Knauer & Hart, Springfield, for defendant-respondent.

FLANIGAN, Chief Judge.

Plaintiff, the administratrix of the estate of Mrs. Selma Winfrey, brought this wrongful death action against defendant Newell Whittenberg. The theory of the petition was that Mrs. Winfrey's death was caused by the negligence of defendant in the operation of his automobile on August 22, 1974, at the intersection of Commercial and Van Buren in Lebanon, Missouri. The petition alleged that defendant's automobile struck Mrs. Winfrey, a 77-year-old pedestrian, inflicting injuries which resulted in her death on January 19, 1975. Defendant admitted that the injuries sustained by Mrs. Winfrey were fatal. Mrs. Winfrey was survived by five adult children.

At the close of plaintiff's evidence the trial court sustained defendant's motion for directed verdict. Plaintiff appeals.

Plaintiff argues that the ruling of the trial court was erroneous in that plaintiff made a submissible case, both on the issue of defendant's liability and on the issue of damages. Plaintiff claims that the evidence was sufficient to submit to the jury the issue of defendant's negligence in failing to keep a careful lookout. Plaintiff also claims that the trial court erred in rejecting plaintiff's offer of proof with respect to a habit of Mrs. Winfrey.

In seeking to uphold the ruling of the trial court, defendant argues that plaintiff failed to make a submissible case on the issue of defendant's failure to keep a careful lookout and also argues that plaintiff's evidence was insufficient to show that Mrs. Winfrey's children, as the statutory beneficiaries, sustained any pecuniary loss as a result of her death.

In Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811 (Mo.App.1975), the western district of this court set forth the principles which govern review of the action of the trial court in sustaining a defense motion for a directed verdict offered at the close of plaintiff's evidence. It stated, at 814, that such a ruling "is a drastic one," and is proper only when "all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ." The court also said, at 815, "the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom."

On the issue of liability plaintiff introduced the testimony of Joel Richards, Jerry Rhoads, and portions of the deposition of the defendant. Plaintiff also introduced three photographs of the scene. On the basis of that evidence the jury reasonably could have found the following facts.

Commercial Street runs east and west and Van Buren Street runs north and south. The junction of the two streets is a T intersection, the intersection being the southern terminus of Van Buren.

The accident occurred at 8:52 a. m. on August 22, 1974. The defendant was driving a Chrysler Imperial automobile. Prior to the impact the defendant was traveling east on Commercial with the intention of making a left turn onto Van Buren. As he traveled east on Commercial there was no westbound traffic on that street. As he commenced his turn the defendant's speed was 20 miles per hour "at the very most."

Plaintiff introduced the following portions of defendant's deposition:

"Q. After you started into your left hand turn, you saw you had it clear, no westbound traffic on Commercial, did you then accelerate and continue on in a generally northwardly direction on Van Buren?

A. Very slow.

Q. Very slow, but you maintained the speed did you?

A. After I turned the corner.

Q. Did you maintain the speed or did you increase it or diminish?

A. No, I didn't increase it.

Q. Did you maintain it?

A. Just about maintained it because just a short turn you turn right again.

Q. All right. Did you at any time see a lady by the name of Selma Mary Winfrey?

A. I did not see nobody.

Q. Did you feel your car come into contact with . . .

A. I did but it was I can explain it this way. Have you ever run over a limb out on the side of the road or anything and you know how it sounds? Well, now, that is just how it sounded, just like I had run over a limb.

Q. Were you keeping a lookout for pedestrians or any animals or anything that might be in your approach?

A. I usually don't look for cats and dogs.

Q. Were you generally looking to the front?

A. I always do.

Q. In the road, and you did not see her did you?

A. I did not see her.

Q. What caused you to apply your brakes? When you looked up in your reverse mirror?

A. When I looked up in the reverse mirror I was wondering why a limb was out there and I looked up to see what kind of a limb was out there and what I did, and that is how come me to look back in the mirror. . . .

Q. Just so the record is absolutely clear, your testimony is that you never saw this woman prior to looking up in your rearview mirror and seeing her?

A. You mean there at the time?

Q. Yes.

A. I never seen her at all.

Q. Okay.

A. Until I looked up in my rearview mirror.

Q. You never saw her until you felt two bumps, you looked up in your rearview mirror and then you saw her?

A. That is right."

Defendant also testified that Mrs. Winfrey was lying 20 or 30 feet north of the north curb line of Commercial. When he felt the two bumps his speed was about 15 miles per hour and his car was "still angling in the turn," not yet straightened out on Van Buren.

Joel Richards, the policeman who investigated the accident, interviewed the defendant at the scene. The defendant told Richards that "when I made the corner I felt a rough spot, I felt like I had hit something. . . . I must have hit Mrs. Winfrey because when I looked in the rearview mirror there was no one between me and her."

There was a telephone pole at the northeast corner of the intersection and Mrs. Winfrey's body was lying in Van Buren Street 341/2 feet north of the pole. Richards testified that there was "a blood smear on the pavement and I believe Mrs. Winfrey was dragged approximately five feet as a result of the accident." Her body was in the right or northbound lane of Van Buren which is a two-lane street.

Richards conducted an inspection of the defendant's vehicle which included placing it on a lift at a service station so that he could check its underside. The inspection failed to disclose any blood, hair, "disturbance of dust on the car" or any other indication of what portion of the vehicle it was which figured in the impact with Mrs. Winfrey.

Jerry Rhoads was at his place of employment "right at the intersection." He did not see the impact but did see Mrs. Winfrey lying in the street "about 15 feet from the sidewalk which runs east and west on the north side of Commercial." The north edge of the sidewalk was approximately 9 feet north of the telephone pole. Rhoads did not see any "tree limbs or sticks or anything on Van Buren" and "Van Buren was in good condition."

Negligence, consisting of a driver's failure to keep a careful lookout, is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken "effective precautionary action." Heberer v. Duncan, 449 S.W.2d 561, 563(3) (Mo. banc 1970); Bunch v. McMillian, 568 S.W.2d 809, 811(3) (Mo.App.1978). To support the giving of a lookout instruction there must be evidence to support a finding that the driver, charged with failing to keep a careful lookout, could have avoided the collision by means which he possessed but failed to use. Lovelace v. Reed, 486 S.W.2d 417, 419 (Mo.1972); Miller v. St. Louis Public Service Co., 389 S.W.2d 769, 772(3, 4) (Mo. 1965).

"Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged (with failure to keep a careful lookout) to take effective action in avoidance." Zalle v. Underwood, 372 S.W.2d 98, 102(2) (Mo.1963).

The mere happening of the accident, tragic as it was, does not establish negligence on the part of defendant. Harris v. Lane, 379 S.W.2d 635, 638 (Mo.App.1964).

To be actionable, negligence must be a proximate cause of injury and that general principle applies when the specific negligence involved is that of failure to keep a careful lookout. Shelton v. Bruner, 449 S.W.2d 673, 679-680 (Mo.App.1969). On plaintiff rested the burden of showing a causal connection between such negligence and decedent's injuries although such connection may be shown by proof of facts and circumstances from which it may reasonably be inferred. If the evidence leaves the element of causal connection "in the nebulous twilight of speculation, conjecture and surmise," plaintiff did not carry her burden. Shelton, supra, at 680.

It is true that a person driving an automobile along a city street "must take note not only of persons who are actually in the pathway of danger, but of those who are approaching and apparently about to go into danger, and to act on such appearances." Trimble v. Sipes, 506 S.W.2d 353, 355(1) (Mo.1974). It was defendant's duty to keep a lookout ahead and laterally. Williams v. Ricklemann, 292 S.W.2d 276, 281(6) (Mo.1956); Trimble, supra, at 355; Evett v....