Holtmeyer v. Scherer

• Decision Date: 28 December 1976
• Docket Number: No. 37501,37501
• Citation: Holtmeyer v. Scherer, 546 S.W.2d 29 (Mo. App. 1976)
• Parties: Paul HOLTMEYER, Plaintiff-Respondent, v. Joseph Lee SCHERER, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 29

546 S.W.2d 29

Paul HOLTMEYER, Plaintiff-Respondent, v.Joseph Lee SCHERER, Defendant-Appellant.

No. 37501.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 28, 1976.

Kortenhof & Ely, Ben Ely, Jr., St. Louis, for defendant-appellant.

Hansen, Stierberger & Hartley, E. A. Stierberger, Union, for plaintiff-respondent.

GUNN, Judge.

Plaintiff's motorcycle and an automobile operated by defendant collided at an uncontrolled intersection in Washington, Missouri.Plaintiff brought suit and the jury awarded him $35,142.50 for personal injuries and property damage.On appeal, defendant raises the following points: 1) that plaintiff was contributorily negligent as a matter of law; 2) that it was error to permit a police officer to testify that the street on which plaintiff was traveling was a major thoroughfare; 3) that the trial court erroneously permitted expert witness testimony as to the location of the vehicles at the point of impact; 4) that the trial court erroneously permitted expert witness testimony regarding the speed of the vehicles at the time of impact; 5) that it was error to include in plaintiff's verdict director a submission that defendant was driving on the wrong side of the road; 6) that the trial court erred in failing to completely define 'right of way' as it related to an uncontrolled intersection.We find that the admission of expert witness testimony regarding the point of impact of the vehicles to be prejudicially erroneous and therefore reverse and remand.

The accident occurred on a summer evening while still daylight and took place at the uncontrolled intersection of Third and Boone Streets in Washington.Plaintiff was traveling on his motorcycle east on Third Street, and defendant was driving an automobile south on Boone Street.Plaintiff's motorcycle was struck on the left side in the southeast quadrant of the intersection, and plaintiff and his wife, ¹ who was riding with him as a passenger, were thrown from the motorcycle.Debris from the accident and some gouge marks made by the motorcycle at the time of the collision were found in the intersection.

Plaintiff was rendered unconscious by the accident and had no recollection of what occurred, but two witnesses testified on his behalf.Marie Rogles observed the accident from her front porch, 50--70 feet away.She testified that plaintiff's motorcycle was moving at a speed of approximately 20 m.p.h. when it entered the intersection; that shortly before entering the intersection (about 50--70 feet away), plaintiff looked to his left into Boone Street, and at the point where plaintiff looked left, a person could see approximately 25 feet into Boone (toward the direction from which defendant was entering the intersection).An embankment and tree obstructed further view into Boone.Mrs. Rogles did not see plaintiff look to his left again and noted that he did not decrease his speed of approach into the intersection nor swerve or sound his horn.At the time plaintiff was struck by defendant's auto, he was more than half-way across the Boone Street intersection.

Plaintiff's wife testified that she was a passenger on the motorcycle driven by plaintiff; that she could not recall whether plaintiff looked to his left before entering the intersection but that he did not slow, swerve or brake once into the intersection.She also testified that the embankment and tree obstructed the view to the left into Boone and that it was possible to see a distance of approximately one car length into Boone before reaching the intersection.Plaintiff's wife further testified that the defendant's vehicle was moving more rapidly than the motorcycle; that she did not observe the defendant brake, swerve or sound a warning; and that the motorcycle had entered the intersection before defendant.

Defendant testified that as he approached the Third Street intersection on Boone Street he reduced his speed from 25 m.p.h. to 20 m.p.h. Defendant's automobile was five feet from the intersection when the defendant first saw the motorcycle, and he estimated the distance of the motorcycle to be 15--20 feet from the intersection.The defendant also testified that he had attempted to apply his brakes.

Defendant first asserts that the trial court erred in failing to find the plaintiff contributorily negligent as a matter of law, as the evidence demonstrated that plaintiff failed to keep a careful lookout as he entered the intersection.²In determining whether plaintiff was contributorily negligent as a matter of law, 'plaintiff's evidence must be accepted as being true and he must be afforded the benefit of all favorable inferences arising therefrom.If reasonable men would honestly differ upon the issue of whether plaintiff used and exercised the highest degree of care in the operation of the car (vehicle)he was driving on the occasion involved, that issue should have been determined by the jury, not by the trial court.'Cox v. Miller, 529 S.W.2d 196, 198(Mo.App.1975).It is primordial legal rubric that the issue of contributory negligence is generally for jury determination, Ogden v. Toth, 542 S.W.2d 17(Mo.App.1976), and that the burden of proving plaintiff's negligence, rests with the defendant.Clark v. McCloskey, 531 S.W.2d 36(Mo.App.1975).Furthermore, '(w)hat constitutes negligence in failing to keep a lookout in a particular direction at any certain place or time depends upon the then existing circumstances and conditions and is usually a jury question.'Clark v. McCloskey, Id., at 37.

Defendant relies on the testimony of plaintiff's witnesses for the purpose of showing that plaintiff was contributorily negligent in failing to maintain a lookout as he approached the Third Street-Boone intersection.Mrs. Rogles testified that when the plaintiff was 50--70 feet from the intersection, he looked to his left into Boone Street (the direction from which defendant was approaching) and then proceeded into the intersection without looking to his left a second time.But we also note that the impact of Mrs. Rogles' testimony in favor of defendant that plaintiff did not look to his left a second time is enervated by her further testimony that it was '(n)ot to my knowledge' that he looked back a second time--scarcely a conclusive affirmation that the second look was not made.And plaintiff's wife's testimony is not helpful to defendant, for she simply did not remember whether plaintiff looked to the left.While defendant argues that plaintiff's failure to look to his left into Boone a second time was contributory negligence as a matter of law, based on the evidence, we disagree.Due to the view obstruction, plaintiff would be able to see only approximately one car length, or, at the most, 25 feet looking left into Boone immediately prior to entering the intersection.Therefore, when plaintiff first looked to his left toward Boone approximately 50--70 feet from the intersection, he would not have been able to see the defendant.

It is certainly true that a motorist entering an intersection has a duty to keep a careful lookout ahead and laterally.Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918(Mo.1959);Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972(1952);Cox v. Miller, supra.Courts have frequently noted that in exercising this duty, a motorist cannot be required to look in one direction all the time, or keep his head in constant motion.Schmittzehe v. City of Cape Giraudeau, supra;Knight v. Richey, supra;Cox v. Miller, supra;Johnson v. Bush, 418 S.W.2d 601(Mo.App.1967);Bischoff v. Dodson, 405 S.W.2d 514(Mo.App.1966);Norris v. Winkler, 402 S.W.2d 24(Mo.App.1966).Although a plaintiff is charged with seeing that which could have been seen, 'the law does not require the impossible nor hold one guilty of contributory negligence because of his inability to see through impenetrable objects or bend his vision around them.If plaintiff could not see defendant's automobile, he is not to be charged with negligence in not seeing it.'Cox v. Miller, supra at 198.See alsoFuzzell v. Williams, 288 S.W.2d 372(Mo.App.1956).The record here is lacking any precise or specific evidence to establish the point at which defendant's auto would have been visible to plaintiff.The best that can be said is that plaintiff would have had to have been 'pretty close' to the intersection before he could see defendant.And although there is some evidence that plaintiff may not have looked to his left when he was 'pretty close' to the intersection, we cannot say that his failure to do so rendered him guilty of contributory negligence as a matter of law.For even if the plaintiff had looked to his left in time to have seen defendant's auto, there is no evidence to suggest that having seen defendant's auto, plaintiff could have done something to avoid the accident.Thus, defendant has failed to establish a causal connection by the plaintiff's failure to look and the ensuing accident.Such showing is necessary before we can find plaintiff contributorily negligent as a matter of law.Norris v. Winkler, supra;Fuzzell v. Williams, supra.

Also, by being to the right of the defendant as the vehicles entered the intersection simultaneously, ³plaintiff possessed the right of way pursuant to § 304.351(2) RSMo 1969.The following statement from Knight v. Richey, supra at 975--76 is thus felicitous:

'There was evidence tending to show that plaintiff and defendant reached the intersection at approximately the same time, and there was evidence tending to show that plaintiff reached and moved into the intersection when defendant was yet some distance to the eastward.Although in the exercise of care plaintiff must have seen and become aware of defendant's approach even though the view to plaintiff's left was somewhat obstructed, we believe it should not be said as a matter of law that, in the circumstances of the collision including the circumstance of plaintiff's favored...