Jefferies v. Saalberg

Decision Date01 December 1969
Docket NumberNo. 25106,25106
Citation448 S.W.2d 288
PartiesRichard C. JEFFERIES, Plaintiff-Respondent, v. Harvey SAALBERG, Defendant-Appellant.
CourtMissouri Court of Appeals

Terence C. Porter, Columbia, for appellant, Welliver, Porter & Cleaveland, Columbia, of counsel.

Carl E. Sapp, Columbia, for respondent, Sapp, Woods, Dannov & Orr, Columbia, of counsel.

CROSS, Judge.

While riding as a passenger in an automobile owned and driven by one Robert Lee Reese, plaintiff received injuries when that vehicle collided at a street intersection with an automobile driven by defendant Harvey Saalberg. To recover his damages, plaintiff originally sued both drivers as defendants. Prior to trial Reese 'settled' with plaintiff and was dismissed from the action as a defendant.

Upon trial the cause was submittd to a jury on the theory that defendant (Saalberg) either (1) failed to keep a proper lookout, or (2) failed to stop his automobile when he knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped. The jury returned a verdict for $3,000.00 in plaintiff's favor. Defendant appeals.

It is here contended by defendant that the trial court should have set the verdict aside and entered judgment in his favor on the ground that there was no evidence from which the jury could properly find that he could have avoided the collision 'by maintaining a lookout or stopping his vehicle.' In determining that question, we must assume the truth of every fact and circumstance in plaintiff's favor shown in evidence, whether by plaintiff or defendant, and give plaintiff the benefit of all reasonable inferences which may fairly be drawn therefrom. All evidence and inferences unfavorable to plaintiff will be disregarded. Under the foregoing limitations, we set out applicable portions of the evidence.

The collision occurred at the intersection of Providence Road and Stewart Road in Columbia, Missouri, on November 19, 1966, in the nighttime at approximately 11:30 P.M. The weather was clear and conditions of visibility were good. Providence Road runs north and south and has four lanes--two for northbound travel and two for southbound. It is a well-lighted thoroughfare. Stewart Road runs east and west and has only one lane for travel in each direction. Each lane is twelve feet wide. The speed limit for Providence Road is 30 m.p.h. The intersection is controlled by 'stop and go' traffic signal lights, flashing red, green and yellow in sequence. The Reese car in which plaintiff was a passenger was traveling northward on Providence Road toward the intersection and the Saalberg car was traveling westward on Stewart Road.

Police officer James Garrison testified that he was called to investigate the accident. He found most of the debris at a point in the intersection 'in the center almost of the two northbound lanes.' He observed skidmarks from the Reese car extending from their point of origin approximately sixty feet northward to the point of impact, and extending northwest beyond that point for an additional sixty to seventy feet, indicating that 'it skidded sixty feet to where it hit the Saalberg car, and then sixty to seventy feet on to where it came to rest.' The Reese car finally stopped at the northwest corner of the intersection. The Saalberg car was knocked 'sideways' and to the north and came to rest in the outside northbound lane of Providence Road about ninety feet beyond the point of impact. The Saalberg car was damaged on the left side toward the front and the Reese car was damaged in the area of the right front fender. The officer testified that a person 'setting on Stewart Road going west' can see to the south on Providence for a distance of approximately three hundred to four hundred yards. He 'located' only one witness at the scene of the accident, namely, James Askew, Jr.

Plaintiff testified that just prior to the collision the Reese car in which he was riding was traveling northbound in the inner lane toward the intersection at 40 to 45 m.p.h. When the vehicle was from one hundred fifty to one hundred seventy-five feet south of the intersection the signal light turned from green to yellow. Reese then accelerated 'trying to make the yellow light.' At a point ninety feet south of the intersection Reese applied his brakes. Plaintiff stated that 'at that time I saw the station wagon which I thought was moving on the hill. It didn't look like it was going to be any trouble to me. * * * When we got close to the intersection we saw the station wagon dart out.' Plaintiff did not know whether defendant's automobile 'stopped at the edge of the intersection or whether it didn't.' At that time and at a point ninety feet south of the intersection Reese applied his brakes and swerved to the left. Although it was plaintiff's testimony that the Reese vehicle approached and entered the intersection traveling in the inner northbound lane there is other evidence convincingly indicating that Reese was then traveling in the outside lane.

James Askew, Jr. was called as a defendant's witness. He stated that he was present and saw the collision when it happened. Just prior to that occurrence Askew had been driving his automobile northward on Providence Road, approaching the intersection involved. When he was approximately sixty feet south of the intersection he saw the light was yellow, 'assumed it was going to change to red', applied his brakes and came to a stop approximately three to five feet from the south boundary of the intersection. He had been traveling in and came to his stop in the second lane from the right, same being the inside lane next to the center line. The witness testified as follows: 'I had stopped * * * had come to a stop. Approximately one or two seconds later, I saw a car come by me on the right and it swerved and ran into the side of Mr. Saalberg's car that was headed west on Stewart Road, approximately the left front door, or maybe a little ahead of the left front door.' The point of impact was almost directly in front of Askew's standing vehicle. Askew had not previously observed the Saalberg vehicle and did not see it enter the intersection. He confirmed that since his car occupied the inner lane of Providence Road it could not have obstructed Saalberg's view of the Reese car as it passed the Askew car on the right traveling in the right hand or outer lane.

Defendant Saalberg testified to the following effect: Just before the collision he had been driving westward along Stewart Road at a speed of 'maybe 20--25 miles an hour'. When he arrived at the intersection with Providence Road the light facing him was red. He came to a complete stop, at a point on Stewart Road about twenty feet east of the intersection line and remained there for approximately five seconds, waiting for the light to change to green. While so waiting defendant observed that the Askew car had 'pulled in from the south' on Providence Road and had stopped 'near the intersection'. When the light for westbound travel changed to green, defendant 'proceeded forward' into the intersection, without looking either to the right or to the left, and was 'hit immediately' by the Reese automobile. He testified: 'I saw the Askew car sitting there and when the light changed, then I moved forward without again looking left or right, yes, Sir. * * * I never did see the car that hit me. * * * I presume if I had looked to the left, I might have seen him (Reese). I'm not sure that I could have looked that quickly because he came at a terrific speed.' In response to the question, 'Actually you should have seen him come on down the road', defendant answered, 'If I had looked that way, but I didn't'. He agreed that in order to have seen the Reese car approaching all he had to do was twist his head 'a little to the left'. Defendant acknowledged that Providence Road was well-lighted and that when he was twenty feet east of the intersection he could see to the south 'maybe three to five hundred feet.'

Plaintiff's case was submitted to the jury by a verdict directing instruction reading as follows:

'INSTRUCTION NO. 4

Your verdict must be for the plaintiff and against the defendant Harvey Saalberg if you believe:

First, defendant either:

failed to keep a proper lookout, or defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped but defendant failed to do so, and

Second, defendant's conduct in any one or more of the

respects submitted in Paragraph First was negligent, and Third, as a direct result of such negligence plaintiff

sustained damage for which he has not been fully compensated by Robert Lee Reese.'

M.A.I. 17.02 Modified and 17.04.'

Substantive principles of law on which plaintiff's case are founded are here noted. A motorist operating his vehicle on the public highways is under the continuous duty to exercise the highest degree of care at all times and to keep a careful and vigilant lookout for other persons and vehicles on the highway. Section 304.010 RSMo 1959 as amended, V.A.M.S. and authorities in following Notes of Decisions Nos. 73, 74 and 75. In Miller v. St. Louis Public Service Company, Mo.Sup., 389 S.W.2d 769, the court said: 'The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions. It is only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril.' The above defined duty is incumbent upon a motorist entering an intersection and he is not relieved of it by...

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7 cases
  • Brittain v. Clark
    • United States
    • Missouri Court of Appeals
    • December 23, 1970
    ...have known that there was a reasonable likelihood of collision in time thereafter to take such preventive measures (Jefferies v. Saalberg, Mo.App., 448 S.W.2d 288, 291(2)), this would not warrant the giving of an instruction on those elements of primary negligence unless there is, in additi......
  • McHaffie By and Through McHaffie v. Bunch, 76840
    • United States
    • Missouri Supreme Court
    • January 24, 1995
    ...have known that there was a reasonable likelihood of collision in sufficient time to take such preventive measures. Jefferies v. Saalberg, 448 S.W.2d 288, 291 (Mo.App.1969). If reasonable minds could differ as to when a driver knew or could have known of a reasonable likelihood of collision......
  • Riley v. Bi-State Transit System
    • United States
    • Missouri Court of Appeals
    • September 22, 1970
    ...v. West, Mo., 416 S.W.2d 162; Robertson v. Weinheimer, Mo., 411 S.W.2d 197; Schaetty v. Kimberlin, Mo., 374 S.W.2d 70; Jefferies v. Saalberg, Mo.App., 448 S.W.2d 288 and Stonefield v. Flynn, Mo.App., 347 S.W.2d It is true that in certain circumstances a plaintiff may submit his case under t......
  • Hill v. Boling
    • United States
    • Missouri Court of Appeals
    • May 6, 1975
    ...or immediate peril. Wilson v. Toliver, 305 S.W.2d 423 (Mo.1957); Hood v. Heppler, 503 S.W.2d 452 (Mo.App.1973); Jeffries v. Saalberg, 448 S.W.2d 288 (Mo.App.1969). 'The peril truly must be imminent--that is, certain, immediate, and impending . . .. A likelihood or bare possibility of injury......
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