Hendershot v. Minich
| Decision Date | 10 December 1956 |
| Docket Number | No. 44846,No. 2,44846,2 |
| Citation | 297 S.W.2d 403 |
| Parties | Saron HENDERSHOT and Dorothy Hendershot, Respondents, v. Richard W. MINICH, Appellant |
| Court | Missouri Supreme Court |
Thos. E. Deacy and Deacy & Deacy, Kansas City, Poague, Poague & Brock, Clinton, for appellant.
Perry M. Cortner and Walter A. Raymond, Kansas City, for respondents.
This is a suit for damages of $15,000 for the alleged wrongful death of plaintiffs' son, Saron Dale Hendershot, who was not quite 12 years old at his death. There was a nine-man verdict for the defendant, but the court sustained plaintiffs' motion for a new trial upon the stated grounds that the 'verdict of jury is against the weight of the evidence and for error in giving defendant's Instruction No. 3.' Defendant has appealed from that order. Section 512.020, RSMo 1949, V.A.M.S. Defendant, accompanied by his wife and children, was driving a 1951 Studebaker car westerly on Highway 35 in Cass County, Missouri; this was a paved highway, 18 feet wide. Defendant's car struck the deceased as the latter was riding his bicycle southwardly across this highway, at its intersection with a gravel road; the gravel road ran alongside the '8-Mile School,' located on the northeast corner of the intersection. The actual collision occurred near the southeast corner of the intersection, and about 3 feet from the south edge of the pavement. The deceased was struck by the right front fender of the car and he was thrown against the windshield; his bicycle was struck by the right headlight; the right headlight and the right side of the windshield were shattered. Admittedly, the boy died from the injuries so received.
The case was submitted to the jury solely upon the humanitarian theory. Defendant now claims, among other things, that plaintiffs' evidence failed to establish a submissible case upon that theory; we shall first consider that contention and the facts applicable thereto, for the point, if sustained, would be decisive of this appeal.
The day in question, September 14, 1953, was clear, and the accident occurred shortly before 4:00 P. M., apparently as pupils were being dismissed from school. Defendant testified that he passed a school zone sign approximately 200 to 250 feet east of the scene, and that thereupon he reduced his speed to about 40 miles per hour; there was other evidence that this sign was 508 feet from the intersection; defendant saw children in the schoolyard. There was some evidence concerning the presence of weeds, brush, etc., along the north fence row at the intersection, but we need not consider this, for the defendant testified that he saw deceased plainly when the latter was riding his bicycle south on the gravel road about 25 to 35 feet north of the edge of the pavement; there was no evidence that deceased ever stopped riding southward prior to the collision, and indeed all the evidence shows that he did continue so riding, and in a straight line, but at somewhat of an angle. Defendant stated that when he first saw the boy he, the defendant, was approximately 150 to 175 feet east of the intersection, and that he also saw another boy in the gravel road with a bicycle, standing still, and about 5, 10 or 15 feet back from the pavement. Other eyewitnesses testified that they saw no other boy there. It is fairly inferrable that defendant took no action when he first saw the deceased, except to continue to watch him. Defendant further testified that: as deceased came up about even with the other boy, he rose up and hit his pedals 'real hard,' and increased his speed; at that time the defendant was approximately 135 to 145 feet from the intersection, and he realized that the boy might ride on to the highway, so he 'hit the brake and horn at the same time * * * and cut to the left,' as that appeared to him to offer the best chance of missing the boy; at the time he turned to the left, however, the boy was in the right lane of the highway and pretty close to the middle line. At the time of the impact defendant's car was about half on the shoulder and half on the south portion of the pavement; the car left skidmarks, all in the south lane, 69 feet long, which for some unexplained reason, apparently stopped about 15 feet short of the point of impact, although the right wheels were still on the pavement. Defendant stated that he thought it would have been possible to swerve back to the right while skidding, but that he did not think he would have averted the accident by doing so; also, that there was a 'kid in the other intersection,' and that he thought deceased might 'stop in my lane.'
A witness who was traveling east in a truck on the other side of the intersection, testified: that as he approached the intersection he saw deceased on his bicycle when he was then 8, 10 or 12 feet north of the slab; that defendant's automobile was then about 150 feet east of the intersection; that the boy 'rode straight across the highway' at a speed of 5 to 8 miles an hour and that he did not look either to the right or left; that the automobile driver applied his brakes and pulled to the left side of the pavement and almost missed the boy. This witness and two others in the vicinity testified that they did not hear the sound of a horn from the defendant's automobile. This witness saw no other boy or boys on bicycles; he said that it was apparent to him when he first saw deceased that the latter was going to come on into the highway. An automobile mechanic testified on behalf of plaintiffs that in his opinion a 1951 Studebaker car with good brakes, traveling at 40 miles per hour, could be stopped with safety on a dry pavement within 80 feet after the brakes were applied; various questions were asked of this witness on cross-examination which we think went only to the weight of his testimony. Defendant's wife testified: that deceased, when she saw him, 'kept riding his bike towards the highway,' and that he was looking back over his shoulder 'towards the other boy'; that when her husband swerved the car across the center line, the boy was in the middle of the right lane.
The case was submitted, conjunctively, on the failure of defendant to give timely warning, failure to stop, failure to slow or slacken speed, and failure to swerve to the right or to continue in the right lane without swerving to the left. We do not believe it necessary to engage in intricate calculations here. It is ordinarily for the jury to determine when and where the zone of imminent peril begins as to an oblivious plaintiff. Silver v. Westlake, Mo., 248 S.W.2d 628; Perkins v. Terminal R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W.2d 915. Conceivably, the jury might have found here that the deceased was in the zone of imminent peril prior to the time defendant said he realized the danger. Defendant had the duty to act when it was or should have been reasonably apparent to him that plaintiff was oblivious and 'was intent upon moving into its [his] pathway.' Silver v. Westlake, supra . See also: Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254. Allowing to defendant the advantage in the possible speeds of the bicycle (Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972), at 8 miles per hour the boy was traveling 12 feet per second; defendant, at 40 miles per hour, was traveling 60 feet per second. Defendant admits that he saw deceased plainly when the latter was 25-35 feet back (north) from the edge of the pavement, and when defendant was 150 to 175 feet from the intersection. There was evidence from which the jury might find that the car could have been stopped within approximately 80 feet after the application of the brakes; the elements brought out on cross-examination of this witness and the weight of his testimony were for the jury. The arguments made here as to the time necessary for the brakes to 'take hold' and for friction to build up on the pavement, after the lapse of the reaction time, are too refined to consider as a practical matter. We recognize three-fourths of a second as the normal reaction time, De Lay v. Ward, Banc, 364 Mo. 431, 262 S.W.2d 628, 635, and defendant would have traveled 45 feet during that time. Defendant further admitted, in substance, that he realized a danger existed when the boy was 5, 10 or 15 feet from the edge of the pavement, and when defendant was still 135 to 145 feet from the intersection. The deceased was clearly oblivious at all times, and he continuously rode forward toward the path of defendant's car. There was substantial evidence here, we think, from which the jury might have found that defendant could have stopped prior to the impact, and after he saw or should have seen the boy in a position of imminent peril; and certainly, if that be true, there was sufficient evidence for a finding that he might have slackened sufficiently to permit the deceased to cross. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, 966; De Lay v. Ward, Banc, 364 Mo. 431, 262 S.W.2d 628, 636; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. There was evidence from which it might be found that defendant's brakes were not applied sufficiently to cause skidmarks until his car was entirely in the south lane. The damage to defendant's car, as shown by photographs, indicates that he was still traveling at a substantial speed at the time of the impact. There was substantial contradiction in the evidence as to the sounding of or failure to sound the horn; defendant said he did so; three witnesses in the vicinity testified they heard none. In connection with counsel's argument that the latter evidence was of no import because of the circumstances, see Dickerson v. Terminal R. Ass'n, Mo., 284 S.W.2d 568, and cases there cited. We think that this evidence was sufficiently substantial to make a jury issue. The deceased was a normal...
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