Jones v. Fritz, 7980
| Decision Date | 16 January 1962 |
| Docket Number | No. 7980,7980 |
| Citation | 353 S.W.2d 393 |
| Parties | Nadine JONES, Plaintiff-Respondent, v. Albert FRITZ, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Almon H. Maus, Monett, for defendant-appellant.
Edward V. Sweeney, Monett, for plaintiff-respondent.
On this appeal, defendant seeks reversal of a judgment in the sum of $10,000 for personal injuries sustained by plaintiff as the result of a vehicular collision at the intersection of Ninth and Cleveland Streets in Monett, Missouri, on October 27, 1958. Plaintiff submitted her case upon defendant's alleged negligence in failing to stop before entering the intersection (in violation of a city ordinance) and in failing to yield the right of way. The sole issue here is whether plaintiff was contributorily negligent as a matter of law.
Ninth is a north-and-south street about thirty feet in width with a blacktop surface from curb to curb. Cleveland is an east-and-west street with a two-lane blacktop roadway (about twenty feet in width) in the center of the street and an unpaved strip (about ten feet in width) on each side of the blacktop. For more than five years prior to the collision under consideration, the intersection of Ninth and Cleveland had been 'a four-way stop,' established as such by a city ordinance (received in evidence) which required all vehicles to stop before entering the intersection and provided for erection of a stop sign on each corner. At the time of accident, this intersection was protected by such signs, each of which was lettered '4 WAY STOP,' and by a blinking light, flashing red in all directions, suspended over the center of the intersection. Both plaintiff and defendant were familiar with the intersection. Plaintiff, then thirty-nine years of age, a housewife, the mother of two boys, and a part-time bookkeeper at the local radio station in Monett, was traveling east on Cleveland in a 1956 Ford tudor en route from her home to a local cold storage warehouse to get some applies for the evening meal. Defendant, then sixty-four years of age, a farmer and livestock hauler, was traveling north on Ninth in a 1955 Chevrolet automobile en route from the Parakeet Beer Tavern in Monett (where, so his story ran, he had, although 'tired, wore out, not feeling good,' visited with a neighbor for 'something like' one hour and forty minutes during which he ordered the familiar two short beers but left half of the second one) to his farm home some three and one-quarter miles north of the city. It was still daylight, shortly after 5:00 P.M.
Following plaintiff's version of the accident, we read that she (alone in the Ford) drove east on Cleveland at 'something around twenty, twenty-five miles an hour' until about the middle of the block west of the intersection of Ninth and Cleveland when she took her foot off the accelerator. Thereafter, she slackened speed gradually and came to a complete stop 'about even with the stop sign' controlling eastbound traffic which was located on the south side of Cleveland twenty feet west of the west curb of Ninth Street. Viewing plaintiff's testimony as a whole in the light most favorable to her, we agree with her counsel that it is fairly inferable that she stopped at a point where, in her position in the driver's seat, she was 'about even with the stop sign.' Having heretofore denied judicial knowledge of the precise distance from the front end of a Chevrolet automobile to the driver's seat [Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 377], we do not now profess such knowledge as to a Ford automobile. But, since we need not and should not pretend ignorance concerning matters of common knowledge [Elder v. Delcour, 364 Mo. 835, 838, 269 S.W.2d 17, 19(2), 47 A.L.R.2d 370, 372; ABC Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876, 884(10)], we may and do know judicially that it is several (certainly no less than six) feet from the front end of a Ford automobile, of the vintage driven by instant plaintiff, to the driver's seat. So, when plaintiff stopped, the front end of the Ford was less than fourteen feet from the west curb of Ninth Street.
As she stopped at the stop sign, plaintiff looked to her right, or toward the south, and then saw defendant's northbound Chevrolet on Ninth Street 'about even with the front doors of the high school,' and thus at a point subsequently found by actual measurement to have been one hundred thirty feet south of the south curb of Cleveland. According to plaintiff, 'he (defendant) seemed to be going about thirty, thirty-five miles an hour, something like that.' It may not be inappropriate to observe here that this statement concerning the speed of defendant's automobile and, for that matter, many of plaintiff's statements pertaining to speeds or distances obviously were not positive declarations of fact but were so phrased and qualified that they clearly were intended to be, and indeed were, nothing more than inexact estimates with all of the frailties inherent in that character of statement. Cf. Davidson v. King, Mo.App., 309 S.W.2d 132, 135. Defendant, no doubt in better position to know or estimate his own speed, said that he was traveling north on Ninth Street at 'something like twenty-five miles an hour.' Since that estimate of defendant's speed was not inconsistent with plaintiff's theory of the case or any judicial admissions by her and was not contrary to physical fact, plaintiff is not hamstrung and hog-tied by her estimate of defendant's speed but, in our consideration of the issue as to her contributory negligence, is entitled to the benefit of defendant's estimate. 1 Whatever the precise speed of defendant's Chevrolet may have been when plaintiff saw it one hundred thirty feet south of the intersection, there was no objection when plaintiff was asked on direct examination, 'was there anything about his (defendant's) speed, considering the distance that he was away, that alarmed you or led you to believe he wouldn't be able to stop,' and likewise no motion to strike plaintiff's answer, 'no, nothing whatsoever'; and, when counsel inquired on cross-examination whether defendant's speed raised 'any alarm or concern as to whether or not he might stop at this intersection,' plaintiff responded, 'no, it didn't, because I knew that there was a four-way stop there, he was supposed to by law stop and he still had plenty of time to put on his brakes.' In the circumstances reflected by the record, the quoted testimony was not without probative value. 2
After observing defendant's automobile, plaintiff looked to her left or to the north and then straight ahead. Seeing no other person or vehicle, plaintiff 'started up slow, just like you normally would' and proceeded into the intersection at an attained speed of 'something around five, six, seven miles an hour, somewhere along in there.' Plaintiff said that 'at five or six miles an hour, (she) could stop * * * in seven or eight or ten feet.' However, it is not clear whether this estimate included the distance traveled during the standard reaction time of three-fourths second (which, at six miles per hour, would have been 6.6 feet), and there was no estimate of stopping distance at seven miles per hour. No horn was sounded by defendant at any time; but, as plaintiff put it, 'something told me to look--I don't know what' when 'I was about the middle * * * of the intersection' (explained as meaning that, in her position in the driver's seat she was in the middle of Ninth Street). Then looking to her right or to the south a second time, she saw defendant's northbound Chevrolet with its front end about even with the south curb-line of Cleveland and thus 'something in the neighborhood of ten or twelve feet' from the right side of plaintiff's eastbound Ford. At that time, defendant was traveling 'approximately the same speed' as when first observed by plaintiff one hundred thirty feet south of the intersection. He 'couldn't possibly' have stopped at the stop sign controlling northbound traffic which was located on the east curb of Ninth Street eighteen feet south of the south curb of Cleveland. Plaintiff immediately attempted to accelerate speed and swerve to her left; but, within a split second, the front end of defendant's northbound Chevrolet struck the center of the right side of plaintiff's eastbound Ford. At the moment of impact, the front wheels of plaintiff's automobile were about even with the east curbline of Ninth Street and the right side of that vehicle was approximately twelve feet north of the south curbline of Cleveland. The right side of defendant's automobile was about five feet west of the east curbline of Ninth. That vehicle did not swerve in either direction prior to the crash.
Reduced to its simplest terms, the burden of defendant's appellate argument is that plaintiff was negligent as a matter of law because, having observed defendant's northbound Chevrolet as she (plaintiff) stopped 'about even with the stop sign' west of the intersection, she thereafter entered the intersection and proceeded to the middle of Ninth Street before looking again to her right or to the south. In this connection, defendant's counsel emphasizes that the speed limit was twenty-five miles per hour, that plaintiff estimated defendant's speed at thirty to thirty-five miles per hour, and that, when asked whether she was 'familiar with how many feet it would take to stop a 1956 Chevrolet automobile' traveling at that speed, she said, 'no (sic) necessarily.' But, as we have pointed out, plaintiff was (and is) entitled to the benefit of defendant's estimate of his speed, towit, twenty-five miles per hour, and to her own testimony (received without objection on direct examination and elicited by defendant's counsel on cross-examination) to the effect that the speed of defendant's automobile gave her no cause for alarm or concern as to defendant's...
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