Johnson v. Bush

• Decision Date: 25 August 1967
• Docket Number: No. 8573,8573
• Citation: 418 S.W.2d 601
• Parties: Viola JOHNSON, Plaintiff-Respondent, v. George L. BUSH and Ozark Gas and Appliance Company, a corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 601

418 S.W.2d 601

Viola JOHNSON, Plaintiff-Respondent, v. George L. BUSH and Ozark Gas and Appliance Company, a corporation, Defendants-Appellants.

No. 8573.

Springfield Court of Appeals, Missouri.

Aug. 25, 1967.

Raymond E. Whiteaker, Allen, Woolsey & Fisher, Springfield, for defendants-appellants.

B. H. Clampett, Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-respondent.

HOGAN, Judge.

This is an action begun by plaintiff to recover damages for personal injuries and property damages sustained in an automobile collision. The plaintiff originally sued defendant George L. Bush (the driver of the vehicle which collided with hers), the driver's father, and a corporation owned by the driver's father, upon theory that defendant George L. Bush was the agent and servant of one of the other two defendants. Defendant George L. Bush filed a counterclaim which we need not consider here, and the corporate defendant filed a counterclaim for property damage done to its vehicle which George L. Bush was driving. The plaintiff dismissed as to the driver's father and the corporate defendant, and submitted her case against defendant George L. Bush upon both primary and humanitarian negligence. The counterclaim made by defendant Ozark Gas and Appliance Company was also submitted. A jury resolved the matter by finding for the plaintiff in the aggregate sum of $3,000 and against both defendants. The defendants have appealed. The nature and extent of the plaintiff's injuries are not in dispute. Our review will be limited to those claims of error which have been briefed and argued in this court. White v. Kuhnert, Mo.App., 207 S.W.2d 839, 840(1).

The accident which gave rise to this case occurred in the city of Springfield, Missouri, when the plaintiff, emerging from a private driveway, attempted to turn left on Kearney Street. Kearney is 58 feet wide and runs east and west at this point. It is divided into six lanes, two each for east and westbound traffic, with an outer 'de-acceleration' lane next to the curb on both the north and south sides. The plaintiff stated that at the time in question 'traffic * * * was pretty heavy (on Kearney) either from one direction or the other.'

Mrs. Johnson had stopped at a service station on the north side of the street to have some air put in her right front tire. The service station is on the north side of Kearney facing south, and there are two driveways leading from the service station into the street, one at the east side of the station and the other at the west. The plaintiff had entered the premises from the east and was headed west when she stopped. In order for her to get to her destination, it was necessary for her to leave the service station by the west driveway, cross Kearney from north to south, and proceed easterly in one of the south (eastbound) traffic lanes. Accordingly, Mrs. Johnson moved to the west entrance and turned south 'with (her) front wheels next to the dip (at the curbline)' and 'sat (there) quite a little while looking both ways.' The evidence establishes that at this point Kearney slopes down to the west and that the crest of the slope or hill is 375 feet east of the approximate center of the driveway from which the plaintiff started to turn. Plaintiff stated that when the last car passed going west, she looked to the west and saw one eastbound car on Kearney approximately two blocks away, then looked back to the east 'and there was nothing there and I took off into the street,' at a speed of 'anywhere from five to ten miles an hour.' Mrs. Johnson was 'looking to the east as (she) pulled out into the street,' but 'did look where (she) was going out in the street later.' As Mrs. Johnson 'got out into the street and was crossing the center line,' with her vehicle headed 'southeasterly, though mostly east,' the defendant's vehicle, going west, struck the 'left front' part of plaintiff's vehicle. Plaintiff stated that she did not see the defendant's vehicle until it was '* * * like two, three feet from (her),' and estimated that Mr. Bush was driving very fast, 'fifty, sixty.'

In support of her case, the plaintiff introduced parts of a pre-trial deposition given by defendant Bush. Mr. Bush's version of the facts was that immediately prior to the collision he 'came up over a hill' going west on Kearney, and that 'just when (he) came over the top of the hill' in the south westbound lane, he saw plaintiff's vehicle 'sitting in the middle of the road, blocking the right-hand lane.' Mr. Bush believed that he had plenty of time to 'go around' on the left but according to his testimony plaintiff saw him and stepped on the gas and he had to swerve over into the eastbound (south) lane, but he 'swerved as far as (he) could and still hit her.' Mr. Bush estimated that plaintiff was no more than 80 feet away when he first saw her, and that her vehicle was then sitting with the 'front bumper just over the center line between the right and left-hand lanes' in the westbound portion of the highway. Mr. Bush estimated his speed to be about 30 miles per hour at the point of impact. Much other evidence was presented, but this is a sufficient background statement to show the nature of the case.

The appellants' first point is that the trial court erred in submitting the cause on defendant Bush's primary negligence, because the plaintiff was contributorily negligent as a matter of law in 1) failing to yield the right of way to the defendant, and 2) in failing to maintain a vigilant lookout as she drove from the service station into the street.

We agree with the appellants in their assertion that the plaintiff was under a duty to maintain a vigilant lookout as she emerged from the service station, and that her duty to the defendant was also governed by the provisions of Section 304.021, par. 5 RSMo 1959, V.A.M.S., which reads:

'The driver of a vehicle about to enter or cross a highway from an alley or any private road or driveway shall yield the right of way to all vehicles approaching on said road or highway.'

Nevertheless, we do not conceive the plaintiff's duty in the same absolute and unyielding terms as the appellants. As plaintiff started to cross Kearney, she did have a duty to maintain a careful and vigilant lookout, and that duty required her to take cognizance of the traffic hazards which a very careful and prudent person should have seen in the same or similar circumstances, James v. Berry, Mo.App., 301 S.W.2d 530, 533(5); Heinecke v. Hardware Mut. Cas. Co., 264 Wis. 89, 58 N.W.2d 442, 444(3), but the plaintiff was not required to see over hills or around obstacles, Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 376(10), nor maintain a continuous lookout in one direction, Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 923(5); Jones v. Fritz, Mo.App., 353 S.W.2d 393, 398(9), and in point of fact, the question whether a driver has been negligent in failing to keep a lookout in a particular direction and has thereby failed to see all he should have seen is usually a jury question. Slaughter v. Myers, Mo., 335 S.W.2d 50, 54(6); Cox v. Moore, Mo.App., 394 S.W.2d 65, 70(13); 61 C.J.S. Motor Vehicles § 526, pp. 437--438. Likewise, though the statute governing the right of way in this situation is absolute in its terms, the plaintiff is only required to yield to those vehicles approaching so closely as to constitute an immediate hazard, Taylor v. Schneider, Mo.App., 370 S.W.2d 725, 728--729(5); 60 C.J.S. Motor Vehicles § 347(b), p. 811, and if, in the most favorable view of the evidence, a jury could have found that the plaintiff, acting as a very careful and prudent person would act, started to cross Kearney in the reasonable belief that she had sufficient time and space to proceed to the eastbound lanes in safety, then it cannot be said that she was contributorily negligent as a matter of law in failing to yield the right of way to Mr. Bush. State v. Arena, 46 Haw. 315, 379 P.2d 594, 603(8--10); Peterson v. Lang, 239 Minn. 319, 58 N.W.2d 609, 612--613(4--6); Temple v. Ellington, 177 Va. 134, 12 S.E.2d 826, 828--829(5)(6).

In arguing the plaintiff's contributory negligence, the appellants have laid great stress upon various conflicting estimates of speed, distance, position and time made by the parties and various other witnesses, inviting us to join them in their conclusion that Mrs. Johnson was contributorily negligent as a matter of law through a process of extrapolation from these estimates. We decline to do so. An examination of the record shows that much of the testimony upon which they base this argument consists of tentative and hesitantly given 'estimates' and 'best judgments' recalled from the witnesses' memories of events which occurred under great stress a year and a half before the trial. Though calculations based on such estimates sometimes have a special relevance in the arcane world of the humanitarian doctrine, see Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648--649(7); Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 602, and authorities cited note 1, it is sufficient to say that as far as plaintiff's primary submission is concerned, the witnesses' estimates of speed, distance, time and position cannot realistically be classified as absolute facts which the jury was bound to accept as true, ¹ and that calculations based on such estimates and approximations cannot convict a plaintiff of contributory negligence as a matter of law. ²

A plaintiff's contributory negligence is a jury question unless it must be said from all the evidence and the reasonable inferences therefrom, viewed in a light most favorable to the plaintiff, that the only reasonable conclusion is that plaintiff was negligent and his negligence was a proximate cause of the injury. Hardy v. St. Louis-San Francisco Ry. Co., Mo., 406 S.W.2d 653, 658(4); Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19(1). We think the most that can...