James v. Berry

• Decision Date: 02 May 1957
• Docket Number: No. 7566,7566
• Citation: 301 S.W.2d 530
• Parties: Nora B. JAMES, Plaintiff-Appellant, v. James Logan BERRY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 530

301 S.W.2d 530

Nora B. JAMES, Plaintiff-Appellant, v. James Logan BERRY, Defendant-Respondent.

No. 7566.

Springfield Court of Appeals, Missouri.

May 2, 1957.

Motion for Rehearing Overruled May 8, 1957.

J. W. Grossenheider, Lebanon, for plaintiff-appellant.

Donnelly & Donnelly, Lebanon, for defendant-respondent.

STONE, Judge.

In this jury-tried action for damages resulting from an intersectional vehicular collision in Lebanon, Missouri, on June 23, 1955, plaintiff, Nora B. James, who had judgment for $1,000, appeals from the order sustaining defendant's motion for new trial on the ground (with another) that plaintiff failed to make a submissible case. The cause was submitted on defendant's alleged primary negligence in failing to yield the right of way to plaintiff's automobile.

At the time of accident, plaintiff and her brother, Noah Clemmons, then 71 years of age and a resident of California, were returning to plaintiff's home in Lebanon after a sight-seeing and fishing trip to the Lake of the Ozarks. They were riding in a 1955 Oldsmobile '88' owned by plaintiff, which she personally had driven to the lake that morning and on a part of the return trip the same afternoon. Although her brother was driving when the collision occurred, plaintiff readily agreed that she had the right of control over her automobile. As the record clearly establishes (and as plaintiff does not seriously dispute), plaintiff and her brother were engaged in a joint enterprise and his negligence (if any) in the operation of her automobile was imputable to her. Hill v. St. Louis Public Service Co., Mo., 64 S.W.2d 633, 635; Smith v. Wells, 326 Mo. 525, 547, 31 S.W.2d 1014, 1024-1025; Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 170-171, 213 S.W. 818, 821-822(3). See also Kieffer v. Bragdon, Mo.App., 278 S.W.2d 10, 15-16(8); Haynie v. Jones, 233 Mo.App. 948, 954, 127 S.W.2d 105, 107(4); Roland v. Anderson, Mo.App., 282 S.W. 752, 754(5).

The collision occurred at the intersection of Washington and Commercial Streets, between plaintiff's Oldsmobile south-bound on Washington and defendant's GMC pickup east-bound on Commercial. There was a stationary 'stop' sign on the northwest corner of the intersection for south-bound vehicles on Washington, but no form of traffic control for east-bound vehicles on Commercial. Commercial was fifty-five feet wide west of its intersection with Washington and forty-seven feet wide east of that intersection. Washington was thirty-four feet wide north of the same intersection but only twenty-eight feet six inches wide south thereof.

Plaintiff insisted that her brother came to 'a complete stop' at the stop sign on the northwest corner of the intersection. From that point, defendant's east-bound pickup on Commercial would have been visible--'I (plaintiff) would think so, yes, sir.' Plaintiff could not remember whether she had looked in either direction. In any event, she admitted that she had not observed defendant's pickup prior to the impact. When asked whether she had seen her brother look to his right or toward the east, plaintiff replied, 'I can't say that I did; I can't remember that'; and, when defendant's counsel followed with the suggestion that 'you can't say one way or the other about it,' plaintiff quickly agreed, 'no, I can't say.' Without objection, her own counsel elicited from plaintiff the statement that, when her brother started forward from the 'stop' sign, 'he had to go in gear * * * and he said when he saw Mr. Berry (defendant) that he speeded up a little bit to try to avoid the accident'; and, the investigating policeman, a witness for plaintiff, said that plaintiff's brother had told him, 'I stopped at the stop sign and then started across--I saw this pickup coming and saw that it was going to hit me.' Thus, plaintiff's evidence indicates that her brother likewise did not see defendant's approaching pickup while plaintiff's automobile was standing at the 'stop' sign. Certainly, the transcript before us would neither justify nor permit a contrary inference. Plaintiff's brother did not testify.

In the language of her counsel, to which plaintiff gave ready affirmation, the impact occurred 'in the southwest corner of the intersection' after 'the front of your (plaintiff's) car had already gone out of the intersection.' The only definite statement as to the specific location of the point of impact with reference to the east and west lines of Washington was by defendant, called as a witness by plaintiff, who said that 'we were just about as near in the center there as you could be, that is, as far as Washington is concerned,' when the front end of defendant's east-bound pickup struck the right side of plaintiff's south-bound automobile. Plaintiff thought that, at the time of collision, her automobile 'couldn't have been going over 15 or 20 miles' per hour. Defendant's estimate of his speed, on which plaintiff relies, was that he (defendant) 'wasn't going over 20 mile an hour' as he approached and entered the intersection. He frankly admitted that he 'didn't see (plaintiff's) car until I was right against it'--'it was right up on me.' Defendant's theory of the case, supported by two sy-stander witnesses, was that plaintiff's automobile, traveling at '40 or 50 mile an hour,' came into the intersection without stopping or even diminishing speed.

Granting to plaintiff, as we should and do, the benefit of the evidence most favorable to her and all inferences reasonably deductible therefrom [see cases collected in West's Missouri Digest, Appeal and Error, k 927(7)], the triers of the facts reasonably might have inferred and found, as plaintiff's counsel here emphasizes, that plaintiff's automobile entered the intersection first. And, although Section 304.021(1), 16 V.A.M.S. [Laws of 1953, loc. cit. 592(16)], on which plaintiff leans heavily, is inapplicable in the instant case because of the 'stop' sign which is a 'form of traffic control' [Creech v. Blackwell, Mo., 298 S.W.2d 394, 399(3)], we recognize that, absent any applicable statute or ordinance, the vehicle first reaching and entering an intersection ordinarily has the right of way over a vehicle subsequently entering the same intersection. Wilson v. Toliver, Mo., 285 S.W.2d 575, 580(5), and authorities there cited. But, mere split-second priority in entering an intersection first, either by 'nosing' across the projected curbline of the intersecting highway after a complete stop [e.g., Branscum v. Glaser, Mo., 234 S.W.2d 626; Folluo v. Gray, Mo.App., 256 S.W.2d 273] or by racing into the intersection at undiminished speed [e.g., Douglas v. Whitledge, Mo.App. 302 S.W.2d 294; see also Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, 500], does not give an absolute and unqualified right to proceed regardless of then existing circumstances and conditions, although many motorists apparently entertain that mistaken notion. Wilson v. Toliver, supra, 285 S.W.2d loc. cit. 582(10).

Thus, a motorist who desires to enter an intersection on a through highway is required to 'yield the right of way to other vehicles which have entered the intersection on the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard.' (All emphasis herein is ours.) Section 304.021(4), 16 V.A.M.S.; Laws of 1953, loc. cit. 593(19). The same limitation finds even more forceful expression in Ordinance No. 1164 of the City of Lebanon, Missouri (received in evidence pursuant to stipulation of the parties), which provides that 'the driver of a vehicle shall likewise stop in obedience to a stop sign * * * at an intersection where stop signs are erected at one or more entrances thereto, although not a part of a through highway, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, and may then proceed.' And, in the absence of an applicable statute or ordinance, the driver first entering an intersection 'would be contributorily negligent if he entered when it appeared or should have appeared to him as a reasonably prudent person that to enter would probably result in a collision.' Creech v. Blackwell, supra, 298 S.W.2d loc. cit. 400. To the same effect, see Wilson v. Toliver, supra, 285 S.W.2d loc. cit. 580.

In the case at bar, the driver of plaintiff's south-bound automobile had an obligation, imposed by the quoted ordinance, to stop in obedience to the sign on the northwest corner of the intersection, and plaintiff's theory of the case was and is that her brother recognized that obligation and stopped. Before moving from such position of safety at the 'stop' sign and attempting the proceed through the intersection, plaintiff's brother had a duty to look for traffic approaching from his right or from the west, as was defendant's pickup. Weis v. Melvin, Mo., 219 S.W.2d 310, 311(3); Burke v. Renick, Mo.App., 249 S.W.2d 513, 516. This was a duty not to be discharged by a fleeting, hurried, perfunctory, mechanical and indifferent glance, but...