Haymes v. Swan, 8558

• Decision Date: 01 March 1967
• Docket Number: No. 8558,8558
• Parties: Janie Marie HAYMES, Plaintiff-Respondent, v. Hilda R. SWAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 319

413 S.W.2d 319

Janie Marie HAYMES, Plaintiff-Respondent, v. Hilda R. SWAN, Defendant-Appellant.

No. 8558.

Springfield Court of Appeals, Missouri.

March 1, 1967.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 28, 1967.

Church & Jones, Donald W. Jones, Lindell R. Church, Springfield, for plaintiff-respondent.

Allen, Woolsey & Fisher, Raymond E. Whiteaker, Russell G. Clark, Springfield, for defendant-appellant.

TITUS, Judge.

Plaintiff Janie Marie Haymes sued defendant Hilda R. Swan in the Greene County Circuit Court for damages allegedly sustained because of an encounter of the parties at the intersection of Kellett and High Streets in Springfield, Missouri, near 1:30 p.m., May 24, 1965. Defendant counterclaimed. The jury, in the form suggested by MAI 32.03, returned a $5,000 verdict for plaintiff. Defendant's motion to the trial court for judgment in accordance with her trial motions for directed verdict or for a new trial as to all issues was overruled. Defendant has appealed.

No traffic control signs or signals were present at the intersection of the two streets, each measuring 30 feet from curb to curb. Kellett Street, running north and south, is paved and intersects at right angles High Street which travels east and west. High Street is graveled. Pictorial evidence indicates the weather was clear and the road surfaces dry when the collision occurred. Contrary to her deposition testimony (more to be said of this later) plaintiff testified a low hedge obstructed her view at the intersection. The location of the hedge is not shown in the record but we assume it is at or near the northwest corner of the intersection.

Plaintiff was driving a Chevrolet station wagon south on Kellett and defendant was operating her Pontiac Tempest east on High when the front of the Pontiac collided with the right 'two doors' of the Chevrolet. An investigating police officer located dirt and debris caused by the impact in the intersection 'approximately 20 feet south of the north curbline on High (and) approximately 8 feet east of the west curbline of Kellett.' No tire or skidmarks were observed. After impact the Chevrolet stopped wheels up, headed south near the east curb of Kellett, with the rear of the vehicle 50 or 60 feet south of the intersection. Without upsetting, the Pontiac came to rest 20 or 25 feet south of the intersection headed northwest with its rear wheels onto the east parkway.

Accompanied by her daughter who was sitting with her back to the right front door facing her mother, plaintiff testified she was operating the Chevrolet 25 miles per hour while driving south on Kellett. 'One or two car lengths from High, the intersection,' she slowed to 20 miles an hour. 'I looked to the right and to the left and I didn't see anything. And I proceeded on through the intersection about twenty miles an hour and just before I left the intersection, I felt an impact and that's all I know.' The daughter who likewise never saw the Pontiac, asserted plaintiff was driving 20 miles an hour, 'slowed down about a car length and a half from High and looked to her right and to her left and went on through.' This witness agreed 'it's a pretty open intersection.'

Plaintiff had testified in her deposition 'it is a clear, open intersection,' there is not 'anything to obstruct westward vision,' and that she could see west down High Street 'at least two blocks.' Responding to a deposition query if she looked but once to her right before driving into the intersection, plaintiff said, 'I tell you, I made the second look then * * * probably (at) the middle of the intersection.' Attesting she was 'wrong' and 'confused' when she deposed, at the trial plaintiff testified 'I'm not going to say I looked (to the right) the second time.' Plaintiff told the jury that a week before trial she had revisited the scene and seated in an automobile placed the length of two cars north of the intersection of Kellett, she made observations of another vehicle which was headed east and placed in the center of High Street west of the intersection. When the latter vehicle was entirely visible to plaintiff, measurements disclosed its front end was ninety-six and one-half feet west of the intersection. Plaintiff was familiar with the accident scene by reason of having traveled the route she was taking on the day of the accident for fourteen years.

Defendant said she was driving east on High 20 to 25 miles per hour but slowed to 15 or 20 upon nearing the intersection. Admitting she is 'not a very good guesser,' defendant testified as she was just coming up to the intersection she looked left (north on Kellett) and then to her right and saw no approaching traffic. 'Then when I looked back to the left I saw this blue station wagon coming at a very high rate of speed * * * just roughly sixty miles an hour.' The Pontiac, according to defendant, was into the intersection 'by the time this station wagon ran in front of me.' Her 'first impulse (was) to put on my brakes (but) I didn't have time to do anything. * * * I put my foot on the brake but how far I got it, I don't know.' Answering written interrogatories, defendant had said ten feet separated the two vehicles when she first saw the Chevrolet, that she had applied her brakes and the Pontiac had slid or skidded prior to the moment of impact.

A woman who did not witness the actual impact said she observed the station wagon 'come up the street * * * and I seen a lot of dust comin' on High Street.' The last she saw of the Chevrolet it was 'halfway in the intersection' traveling at a 'slow rate (of speed), I would say. * * * I just heard a sound of a car comin' up High fast and the dust blowin'.' Another witness did not see the pre-impact developments but noticed the cars just as they collided. 'It looked like the blue car (Chevrolet) was almost through the intersection from where I was sittin' (and) there was quite a bit of dust on High Street back west, on west from where the crash were.'

A police lieutenant testified for plaintiff as a reconstruction expert and his opinions and conclusions are noted in full by us simply because they encountered no objections from defendant. The lieutenant stated the Chevrolet outweighed the Pontiac by one thousand pounds and had the Pontiac been traveling at a slower speed than the Chevrolet when it struck the station wagon broadside, the Pontiac would 'have been flipped back to the right side of the Chevrolet * * * in other words on the west side of Kellett Street * * *. In this case, instead of following this pattern * * * there was still enough inertia left (in the Pontiac) that it swung completely around, back up over the parkway and followed the Chevrolet * * * about 25 feet.' Assuming the Chevrolet was going 20 miles an hour and the Pontiac 35 to 45 miles an hour at impact, the witness concluded, without objection, the Pontiac 'would have landed up where it did in this particular case.' His reconstruction of the accident indicated to the lieutenant the Chevrolet 'was going at a relatively low rate of speed' when the collision occurred.

A car being driven 20 miles per hour, the lieutenant testified, would travel approximately 30 feet per second and would require one and three-fourths seconds to travel 50 feet. In the same one and three-fourths seconds a vehicle would have to travel 37 to 38 miles per hour to cover 90 to 100 feet. Concerning 'how long are cars,' the witness conceded, 'Some of them can be 15, some of them can be 16, some of them can be 20 feet.' In an experiment conducted by this officer at plaintiff's behest, he placed himself in an automobile facing south on Kellett. When the front of the car was 30 feet north of the intersection he could see west along the curbing of High Street a distance of 'approximately 95 feet.' Moving the front of the car to within 20 feet of the intersection, his sight distance was increased to 'approximately 100 to 110 feet.' When asked: 'One to two car lengths north of the curbline, how far down High Street can you see?' The lieutenant answered 'approximately 95 feet.'

There was no evidence as to the stopping distance requirements of either vehicle at any given speed. Subsections (a) and (b) of Section 22--63 of the General Ordinances of the City of Springfield, as read into evidence, are practically identical to subsections 1 and 2 of V.A.M.S. § 304.021, and have to do with intersection rights of way.

Defendant contends she was entitled to a directed verdict on plaintiff's claim because (1) plaintiff was guilty of contributory negligence as a matter of law in failing to maintain a proper lookout, and (2) defendant's negligence, if any, was not the direct and proximate cause of the accident. In attending to our review of these claims by defendant where plaintiff has been successful with the jury, we must inspect the evidence in the light most favorable to plaintiff, augmented by the best inferences reflected therefrom. Except where it may aid plaintiff, defendant's evidence is ignored. Dressler v. Louvier, Mo. (Banc), 408 S.W.2d 852, 853--854(1); Price v. Seidler, Mo., 408 S.W.2d 815, 819(1); Thomas v. Jones, Mo., 409 S.W.2d 131, 134(2). Even if reasonable minds might conclude both plaintiff and defendant were at fault in producing the collision, as the record here suggests, yet we are not at liberty to hold plaintiff guilty of contributory negligence as a matter of law unless the evidence and inferences favorable to plaintiff's submission permit no other reasonable conclusion. Otherwise, plaintiff's contributory negligence is a jury question. Bischoff v. Dodson, Mo.App., 405 S.W.2d 514, 517(2, 3).

To support her claim plaintiff was contributorily negligent as a matter of law in failing to maintain a proper lookout, defendant cites six cases. ¹ All authorities to which we are referred repeat well-established precepts that 'where one is charged with the duty to look and to look is to see, he...