Henrickson v. Resnik

• Decision Date: 05 May 1965
• Docket Number: No. 8382,8382
• Citation: 390 S.W.2d 610
• Court: Missouri Court of Appeals
• Parties: Margery HENRICKSON, Plaintiff-Appellant, v. Ronald Lee RESNIK, Defendant-Respondent.

Page 610

390 S.W.2d 610

Margery HENRICKSON, Plaintiff-Appellant, v. Ronald Lee RESNIK, Defendant-Respondent.

No. 8382.

Springfield Court of Appeals, Missouri.

May 5, 1965.

H. K. Wangelin, Wangelin and Friedewald, Ralph R. Bloodworth, Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-appellant.

Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, Joe C. Welborn, Briney & Welborn, Bloomfield, for defendant-respondent.

HOGAN, Judge.

This case arose out of a collision between automobiles driven by the plaintiff and defendant at the intersection of Ninth and Maude Streets in Poplar Bluff, Missouri. Plaintiff's husband, Dr. H. M. Henrickson, who was riding with her as a passenger, was killed, and the plaintiff and defendant both sustained certain personal injuries.

Plaintiff charged the defendant with numerous acts of primary negligence, but submitted both her claim for the wrongful death of her husband and her own claim for personal injuries in a single instruction predicated upon the defendant's humanitarian negligence in failing to slacken the speed of his vehicle and swerve to the right. The defendant, who filed an affirmative counterclaim, submitted his case upon the plaintiff's primary negligence in entering the intersection when the defendant was approaching so closely as to constitute an immediate hazard of collision, and upon plaintiff's humanitarian negligence in failing to stop. The jury found against the plaintiff both on her claim for wrongful death and for personal injuries, and found affirmatively for the defendant upon his counterclaim, assessing his damages in the sum of $5,000.00. The plaintiff has appealed.

In order to deal appropriately with the parties' contentions, it is necessary to state the evidence introduced tending to support the conflicting factual versions of the manner in which the collision was brought about.

Ninth Street runs north and south, and Maude Street runs east and west. Both are paved, concrete streets, and they intersect approximately at right angles. At the west entrance to the intersection, Maude Street runs slightly upgrade and is 26 feet 3 inches wide from curb to curb; it is slightly wider at the east entrance. There is a stop sign on Maude for eastbound traffic 2 feet 1 inch west of the southwest corner of the intersection. On the northwest corner of the intersection, there is a brick building, then known as Piggie Hogg's Market, the south property line of which is 7 feet 2 inches north of the north curb line of Maude. On the west side of Ninth Street, north of the intersection, there is a parking lane or strip some five feet wide along the west curb 'in front of' Piggie Hogg's, so that Ninth Street is 26 feet 8 inches from curb to curb on the north side of the intersection but only 21 feet 3 inches from curb to curb at the south entrance. There was no stop sign for traffic southbound on Ninth.

As the plaintiff related the accident, she was driving east on Maude, about 4:25 P.M. on Saturday, January 5, 1963, taking her husband to his work at the Poplar Bluff Hospital. Plaintiff was driving and her husband, a physician, was seated in front with her. As she came to the intersection, Mrs. Henrickson stopped about two feet west of the stop sign, and looked first to her right, and then to her left. At the time, there was a car parked along the west curb of Ninth Street, and Mrs. Henrickson's view to the left (north) was obstructed by the parked vehicle, and to some degree by the building, but she estimated that she could then see 40 to 50 feet to her left. Plaintiff then 'eased in' to look further, and again made an observation of traffic when the front end of her automobile was clear of the parked automobile and some two feet out into the intersection. At the time she made her second observation, plaintiff estimated that she could see 100 to 125 feet in either direction, north or south, and estimated her forward speed to be two to four miles an hour.

Perceiving no oncoming traffic in either direction, plaintiff then proceeded into the intersecting, increasing her speed to five or six miles an hour. As she reached a point where the front end of her vehicle, a four-door 1962 Cadillac, was about four feet east of the east curb line of Ninth Street, her automobile was struck behind the left front door by the defendant's vehicle and pushed south against a telephone pole. Dr. Henrickson was thrown from the vehicle and was killed, and the plaintiff sustained personal injuries.

The plaintiff also had the testimony of two eyewitnesses, the first a Mr. Everett Mitchell, who had been standing nearby when the accident occurred, and a Mr. O. C. Cutsinger, who had seen the casualty from a sunroom in his house on the south-west side of the intersection. Mr. Mitchell had been standing on the east side of Ninth Street preparing to enter the market, and when he had started west across Ninth Street he saw the defendant's southbound vehicle, which 'honked [its] horn at me.' Mr. Mitchell stopped and observed the plaintiff's automobile 'easing out' into the intersection, 'and the Cadillac [plaintiff's vehicle] pulled out in front of him [defendant], and it hit it, hit the Cadillac in the side.' By means of reference points on a photographic exhibit showing the intersection from the north on Ninth Street, Mr. Mitchell estimated that the defendant's vehicle was 91 feet north of the intersection when the plaintiff's vehicle started up. This witness estimated that the front end of the plaintiff's vehicle was about even with the east curb line of Ninth Street when the collision occurred. It was his recollection that there was 'two or three cars' parked along the west curb of Ninth Street at the entrance to the market.

Mr. Cutsinger, who was sitting in his sunroom at the time the accident occurred, testified that he had first seen the plaintiff stop at the stop sign and then had seen her look both to the south and to the north on Ninth. Mr. Cutsinger had seen the plaintiff proceed into the intersection and then had seen the defendant's automobile proceeding south on Ninth Street. At the time when the front end of the Cadillac was 'about the center of the intersection,' the defendant's vehicle had been 83 feet north of the intersection; and as the front end of the Cadillac came to a point some two to four feet east of the east curb line of Ninth Street, the defendant's vehicle struck the plaintiff's 'about the back door of her car.' It was Mr. Cutsinger's testimony that the defendant's vehicle was being driven on the east or left side of Ninth Street, and that he had not slackened his speed at any time before the collision. As Mr. Cutsinger recalled, there had been one automobile parked along the west curb line of Ninth Street, probably four or five feet north of the north curb line of Maude.

The defendant, Ronald Resnik, was 17 years old at trial time, and was represented by his father as guardian ad litem. On the occasion in question, he testified, he and a group of his companions were 'just riding around' in his father's automobile. As he approached the intersection in question, he was driving at a 'slow rate of speed,' which meant '22, 25 miles an hour.' The defendant did not see the Henrickson vehicle until it was 'out in front of me,' at which time, according to his 'best estimate,' he was 10 to 15 feet from the nearest edge of Maude Street. He had no time to sound his horn, nor to apply his brakes. Though there is no center line marked on Ninth Street, the defendant estimated he was driving 'as close as I could to the right,' but because of the automobiles parked along the west cur ('in front of' Piggie Hogg's) he was driving with the left part of his vehicle about one foot east of the center of the street. The defendant 'knew of two' automobiles which were parked on his right. According to Mr. Resnik, the Henrickson automobile was 'in the center of the intersection' when the collision occurred. He believed that he had seen the Henrickson vehicle when it first became visible--that he had 'seen it wehn it first come through.'

Defendant also had the testimony of three of his companions, who had been occupants of his vehicle when the casualty occurred. Robert Christian, the first of these witnesses, was seated in the right front of defendant's vehicle. He estimated the defendant's speed immediately prior to the accident at 'around 25.' He had seen the Henrickson vehicle when 'it was just beginning to pull out,' and it was then '15, 20, 25 feet, something like that,' away. Mr. Christian explained that there were 'two or three cars * * * just right on the corner,' and consequently 'you couldn't see it [the Henrickson car] real good.' He believed that the 'middle' of the Henrickson vehicle had been 'in the center of Ninth Street' when the two cars collided.

Joe Hefner, Jr., another of defendant's witnesses, had been riding in the left rear of defendant's automobile. 'If [he] remember[ed] right,' there were three cars parked along the west curb of Ninth Street, and the 'closest one' was 'right on the curb' of Maude Street, so that a vehicle approaching on Maude Street could not be seen. When the Henrickson vehicle 'pull[ed] out from behind the parked car,' the witness had seen it 'about two car lengths' away; and, while the witness didn't know for sure, he 'would say' the plaintiff was going three to five miles an hour.

Robert Eaton, also a passenger in the defendant's vehicle, estimated defendant's forward speed at 'I'd say 20, 25 miles an hour.' Mr. Eaton had had his attention diverted by glancing at Mr. Mitchell (the pedestrian), and 'at the instant [he] turned back around * * * [he] saw the car [Mrs. Henrickson's car] pull out in front.' When he saw Mrs. Henrickson, her vehicle was 'a couple of feet' out in the intersection, going into the middle of the street, and at that time Mr. Resnik was 'not more than a car length' north of the intersection. It was...