Johnson v. Cox

• Decision Date: 09 November 1953
• Docket Number: No. 1,No. 43440,43440,1
• Citation: 262 S.W.2d 13
• Parties: JOHNSON v. COX
• Court: Missouri Supreme Court

Page 13

262 S.W.2d 13

JOHNSON v. COX.

No. 43440.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1953.

Barnhart, Wood and Bransford and C. V. Barnhart, St. Louis, for appellant.

Kerth & Schreiber, Clayton, for respondent.

COIL, Commissioner.

Juanita Johnson, plaintiff-appellant, sought $15,000 damages for the alleged wrongful death of her husband who was fatally injured when the motorcycle he was riding collided with an automobile driven by defendant-respondent. Juanita has appealed from the judgment entered on defendant's verdict and asserts that the trial court erred in giving sole cause instruction 2 and in overruling her motion to require a witness to answer a question asked at a deposition.

About 9 o'clock on a dark, clear night, defendant drove eastwardly on the upgrade, dry, 40'-wide, asphalt pavement of St. Charles Rock Road to a place opposite a store located 68 feet north of the north edge of the street. At 10 m. p. h., she began a left turn for the purpose of entering the store's well-lighted parking lot. When she had traveled 10 feet in her turn, and when the left front wheel of her automobile was about 5 feet north of the center line, and when her automobile was facing northeast, a dark-colored motorcycle, being operated westwardly by deceased, collided 'head on' with the center of the front of the automobile. Defendant was the only eyewitness. She said she heard no sound prior to, and saw the motorcycle just an instant before, the impact, when it was not more than 5 feet away; she estimated its speed at 45-50 m. p. h.; it had no lights burning; her headlights illuminated the pavement ahead of her car for a distance of approximately 60 feet.

Plaintiff relied on defendant's testimony given in a deposition and certain expert testimony as to stopping distances. She submitted her case under a humanitarian instruction hypothesizing defendant's failure to stop or swerve.

Defendant's instruction 2 was: 'The Court instructs the jury that if you find and believe from the evidence that Marvin Johnson, deceased, on the occasion described in the evidence, operated the motorcycle as described in the evidence, at a time after dark without a lighted headlight, or at a rate of speed of approximately 45 to 50 miles per hour, and if you further find that such rate of speed, if any, was high, dangerous and excessive, and if you further find and believe that such act or acts, if any, constituted negligence and were the sole cause of the collision described in the evidence, and that defendant was not guilty of negligence as submitted in other instructions herein, then your verdict must be in favor of the defendant, Lovie Cox.' Plaintiff attacks this instruction on three grounds, one of which must be sustained. However, inasmuch as the case may be retried, we should dispose of the other two grounds.

Plaintiff contends that the evidence, viewed from a standpoint most favorable to defendant, demonstrated that defendant was negligent as a matter of law and thus a sole cause instruction should not have been given. Wilkins v. Stuecken, 359 Mo. 1047, 1052, 225 S.W.2d 131, 134[3, 4]. This contention is based upon the proposition that deceased's motorcycle had to be at a place where it was visible in the headlights of defendant's automobile at the time she began her left turn; that defendant was charged with a duty to look and therefore must have seen what looking would have revealed. This argument is fortified by mathematical calculations based on defendant's own testimony tending to demonstrate that the motorcycle was only 50 feet away at the time defendant began her left turn, and thus well within the beams of her headlights. This contention overlooks, however, that we may not assume the truth of a fact based upon an inference which is not compelled. That is to say, the validity of plaintiff's contention in this respect depends upon assuming as a fact that deceased's motorcycle was in such a position on the highway that it was, at all times prior to the collision, within the view afforded by defendant's headlights. There was no testimony as to the motorcycle's position on the highway or its direction of travel until it was within five feet of the collision point. Whether prior thereto the motorcycle was on the extreme north side of the street, or in the process of moving from the north side to the center of the street, or was traveling westwardly in a straight line, is not shown. While the jury might infer from the evidence that the motorcycle must have been in a position to have been seen by defendant, if she had looked, in time for her to have stopped or swerved, we may not assume such as a fact when determining whether defendant was negligent as a matter of law. Furthermore, even if it be assumed that the motorcycle was for a certain distance in a portion of the highway within the reach of defendant's headlights, to convict defendant of negligence as a matter of law, we must also assume as a fact that defendant's headlights would have made visible in time the dark-colored, unlighted, fast-moving motorcycle; and this, despite the evidence that there were bright lights on the store mentioned which shone toward the highway. We are of the opinion that defendant's negligence was a jury question under plaintiff's humanitarian submission. Jants v. St. Louis Public Service Co., 356 Mo. 985, 993, 204 S.W.2d 698, 701.

Plaintiff also contends that there was no substantial evidence to support the submission of a speed of 45-50 m. p. h. This contention is based on the proposition that defendant's estimate of the motorcycle's speed (the only direct evidence as to speed) was of no probative value and should have been excluded. As noted, defendant saw the motorcycle only an instant before impact and when the motorcycle was not more than 5 feet from the front of her automobile. By mathematical computation, assuming the accuracy of her estimate of her speed, the motorcycle's speed, and its distance away, she observed it only for about 1/16 or 1/18 of a second. Defendant also said, however, that she saw the motorcycle long enough to see that there were no lights and that it was a motorcycle; that her estimate of its speed was based on what she saw in that 'fleeting second before the impact' and 'based on the impact I received and based on the fact I did not see him at any time previous to that.' Inasmuch as defendant professed to be able to judge the speed of the approaching motorcycle, taking into account that she was herself a driver of an automobile, and that she observed the damage to the front end of her automobile as a result of the collision (the bumper was bent into the grille with considerable damage to the grille), we think that the trial court correctly permitted her to testify as to her estimate of the speed of the approaching motorcycle. The weight of that testimony was for the jury after having the benefit of plaintiff's cross-examination on the subject. Tutie v. Kennedy, Mo.App., 272 S.W. 117, 121; Flach v. Ball, 209 Mo.App. 389, 404, 240 S.W. 465, 469.

Instruction 2 is prejudicially erroneous, however, because it fails to hypothesize facts from which a jury could find that deceased's negligence was the sole proximate cause of the collision. We have repeatedly held that a proper sole cause instruction must so do, as well as to (as does instruction 2) negative the defendant's humanitarian negligence as submitted by plaintiff. Long v. Mild, 347 Mo. 1002, 1009, 149 S.W.2d 853, 858[9, 10]; Semar v. Kelly, 352 Mo. 157, 164, 176 S.W.2d 289, 293[7, 9]; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 1163, 159 S.W.2d 254, 257[7, 8]; McGrath v. Meyers, 341 Mo. 412, 418, 107 S.W.2d 792, 795; Janssens v. Thompson, 360 Mo. 351, 360, 228 S.W.2d 743, 748.

Instruction 2 submits only the abstract propositions that either deceased's negligent speed...