Janicke v. Hough
| Decision Date | 07 February 1966 |
| Docket Number | No. 24330,24330 |
| Parties | William J. JANICKE, Plaintiff-Appellant, v. Betty HOUGH, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
John J. Phillips and James S. Cottingham, Independence, for appellant.
Thos. E. Deacy, Thos. E. Deacy, Jr., Edward W. Mullen, Deacy & Deacy, Kansas City, for respondent.
MAUGHMER, Commissioner.
We have here a damage suit growing out of a collision between two automobiles at a city street intersection. The verdict was for the defendant. On appeal plaintiff contends (1) the court erred in giving defendant's instruction on contributory negligence and (2) there was no causal connection established between plaintiff's alleged improper acts and the collision.
Shortly after 11:00 a.m. on the Sunday morning of September 30, 1962, plaintiff, William J. Janicke, alone in his Chevrolet automobile, was proceeding east on Kansas street and nearing its intersection with Lightburne street in the City of Liberty, Missouri. At the same time the defendant, Betty Hough, with her one year old daughter lying on the back seat, was driving her Chevrolet Corvair north on Lightburne street approaching the same intersection. Both of these streets had bituminous surfaces and at the time were wet. The surrounding area was flat. There was a stop sign at the Lightburne entrance into the intersection. Kansas was a one way street--east only. A church was immediately adjacent to the northwest, Sunday morning services were in progress and automobiles were parked on Kansas street both east and west of Lightburne. Both vehicles, according to the evidence, approached the scene at from 20 to 25 miles per hour. The front part of defendant's Corvair struck the Chevrolet near the right rear fender.
Robert E. Jacobs, a part-time police officer, arrived shortly after the accident. He found defendant's vehicle with about one-third of its length into the intersection. He said plaintiff's car was 'angled into a '60 Chevy on the south side of Kansas street 25 feet east from the intersection'. After the collision with defendant, plaintiff's car had bounced first into an automobile parked on the north side of Kansas street and from that into a second car parked on the south side of Kansas street, both east of Lightburne.
Defendant was not familiar with the area. She stated that as she neared the intersection her child made an outcry, she looked over her shoulder and did not see the stop sign until it was only a few feet away. She applied her brakes, skidded, but was unable to stop completely before entering the intersection. After the collision, the only damage to her car was a dent in the chrome on the front end. The child was still lying, apparently undisturbed, on the back seat. The defendant later entered a plea of guilty to the charge of careless driving. She said she applied her brakes when she first saw the stop sign and did not see plaintiff's car until 'I was about a car length from the intersection'. 'It seemed like his car was right in front of me'.
Plaintiff's description of the occurrence was as follows: He approached the intersection at a speed of from 20 to 25 miles per hour. 'Cars were lined up on both sides of the street' (parked), he could not see Lightburne street because of a 'row of bushes running down Lightburne street'. He saw the defendant's automobile 'a split second' before the collision. His car entered the intersection first. After the collision with defendant, his vehicle struck an automobile parked on the north side of Kansas street and then one on the south side. When he first saw defendant she was '15 or 20 feet before the center of the intersection' and he at that time was '8 to 10 feet west of the west curb line of Lightburne'. Plaintiff made no attempt to apply brakes but 'stepped on the gas and tried to accelerate to get across ahead of her'.
The plaintiff submitted and sought recovery solely upon defendant's failure to stop before entering the intersection thereby 'violating the traffic stop sign'. The defendant, having pleaded contributory negligence as a defense, offered and the court gave Instruction No. 6, submitting that defense. We set out Instruction No. 6:
'Your verdict must be for the defendant whether or not defendant was negligent if you believe:
'First, plaintiff either: failed to keep a careful lookout, or drove at an excessive speed, or failed to slow before entering the intersection; and
'Second, plaintiff's conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
'Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained'.
This instruction authorized the jury to find that plaintiff was contributorily negligent if he (1) 'failed to keep a careful lookout' or (2) 'drove at an excessive speed' or (3) 'failed to slow before entering the intersection'. We agree with plaintiff's assertion that there must be evidence from which a jury might reasonably conclude that plaintiff did fail to keep a careful lookout, did drive at an excessive speed and did fail to slow before entering the intersection, else the giving of this instruction was improper. Dawley v. Hoy, Mo., 341 S.W.2d 111.
In deciding whether a defendant's instruction is supported by substantial evidence, the court must consider the evidence in a light most favorable to defendant and disregard all unfavorable evidence. Palmer v. Lasswell, Mo., 287 S.W.2d 822, 827; Dawley v. Hoy, supra, 341 S.W.2d l.c. 116.
Plaintiff concedes the point with respect to his 'failure to slow before entering the intersection'. He admits he did not slow, but rather speeded up in an effort to clear the area ahead of defendant. Plaintiff denies there is proper evidence justifying a submission of excessive speed. He says his speed was within the 25 miles per hour limit authorized by the city ordinances of Liberty. However, keeping within the posted or authorized speed limit does not necessarily show the exercise of the highest degree of care in respect to speed under any and all circumstances. Here the road surfaces were wet, church services were in progress, bushes obstructed the view to the south and automobiles were parked almost solidly on Kansas street where plaintiff was traveling. These circumstances resulted in restricting the street width, requiring a longer distance for stopping, and lessening the view to the south on the intersecting street. Was plaintiff, therefore, justified in approaching the intersection at the maximum or nearly maximum speed limit and, when he saw defendant's car to the south, stepping on the gas and speeding up? Were these acts in the exercise of the highest degree of care? We believe the issue of excessive speed under all of these surrounding circumstances was for the jury and was properly submitted for their determination. Kitchen v. Wilson, Mo., 335 S.W.2d 38; Steele v. Goosen, Mo., 329 S.W.2d 703.
That brings us to the third element. Was there evidence from which the trier of the facts would be authoized to conclude that plaintiff negligently failed to keep a proper lookout and if so, that such failure had a direct causal connection with the collision? Was the view of plaintiff obstructed as he approached the intersection? Did he see defendant's automobile as soon as he was able to see it and if he had kept a careful lookout, could it reasonably have been expected and found that he would thereby have been able to have avoided the accident? Defendant says that under the evidence the answer to this last question should be 'Yes'. Plaintiff says there is no substantial evidence that he could have seen defendant's automobile had he been looking in time to have prevented the collision. In determining this issue, which is the point most vigorously debated by the parties, we examine and incorporate herein pertinent parts from the testimony of plaintiff, defendant, Officer Jacobs and Lora Bean, custodian of the Second Baptist church, who saw the accident from about 75 feet away.
The plaintiff said he saw defendant's automobile 'just at a split second' before it struck, 'I was in the intersection before she was', her car was 'approximately a car length away or two lengths from my car', when he saw it. It was his best judgment that when he first saw defendant's vehicle, 'it was 15 to 20 feet south of the center of the intersection' and at that time he was ...
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