Kirks v. Waller, 48107
| Decision Date | 09 January 1961 |
| Docket Number | No. 2,No. 48107,48107,2 |
| Citation | 341 S.W.2d 860 |
| Parties | David Paul KIRKS, a minor, by Peter C. Kirks, his next friend, Respondent, v. Alvin T. WALLER, Appellant |
| Court | Missouri Supreme Court |
John M. Kilroy (Shughart, Thomson, Stark & Kilroy, Caldwell, Blackwell, Oliver & Sanders, Kansas City, of counsel), for appellant.
Paul C. Sprinkle, Richard P. Sprinkle, and John P. Ryan (Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel), for respondent.
BOHLING, Commissioner.
David P. Kirks, a minor, by his father as next friend, sued Alvin T. Waller for $50,000 damages for injuries received when struck by a truck operated by defendant. The jury returned a unanimous verdict for defendant. The court granted plaintiff a new trial for error in giving instruction No. 5. Defendant has appealed, and contends said instruction was not erroneous and that plaintiff failed to make a case on the submitted negligence that 'defendant could have swerved said truck and given a warning of its approach' under the humanitarian doctrine. If plaintiff failed to make a submissible case, any error in defendant's instructions was immaterial and the court erred in granting plaintiff a new trial. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 830; Graves v. Atchison, T. & S. F. R. Co., 360 Mo. 167, 227 S.W.2d 660, and cases cited.
Plaintiff was injured about 4:40 p. m. August 31, 1956, on 87th Street, an east-west street, in Jackson County at the entrance to the Benjamin Stables. The Stables border 87th on the south and are a half block or more east of Hillcrest, a north-south street. Eighty-seventh Street has an 18-foot concrete pavement with shoulders 5 to 6 feet wide on each side. A drive, wide enough for two cars, leads southwardly from the concrete to the Stables and a long barn extends eastwardly from this entrance along 87th Street. Several driveways extend from the pavement to residences north of 87th Street in the vicinity of the entrance to Benjamin Stables, one being almost opposite said entrance. It is upgrade for eastbound traffic from Hillcrest to this entrance and then slightly downgrade to the east.
Mr. Kirks had taken his children to the Benjamin Stables to ride horseback. Plaintiff, who was about 5 years old, was returned to the Kirks car on the stable lot when he decided not to ride, and Mr. Kirks took the other children riding.
Defendant, a carpenter, and three men, who had worked together since 1948, finished work for the week about a half mile or more east of the Benjamin Stables. Defendant took his brother's 1953 GMC halfton pickup truck to proceed west on 87th to get some 'cokes' for the group. There was no westbound traffic ahead of defendant.
Three passenger automobiles, operated by James W. Menaugh, Richard H. Kelly, and Orville C. Repper, were eastbound in that order on 87th. Menaugh and Kelly were Jackson County Deputy Sheriffs. They were plaintiff's witnesses. Repper, an electronics engineer, was driving a 1950 4-door Mercury. He was a witness for defendant.
As the vehicles approached the entrance to the Benjamin Stables, the speed of the eastbound cars was estimated at 20 to 25 m. p. h. and the speed of defendant's truck was estimated at 30 to 35 m. p. h. The place involved was in a 45 m. p. h. speed zone.
Menaugh saw plaintiff at the entrance to the Benjamin Stables. When he was within 15 to 20 feet of plaintiff, plaintiff suddenly ran out on the pavement in front of his car. Menaugh tried to but didn't have time to stop and, had plaintiff not stopped and jumped back, his car would have struck plaintiff. Menaugh, thinking plaintiff would run out in front of another car, immediately pulled onto the south shoulder and parked about 3 or 4 car lengths, 50 to 60 feet, east of the entrance. He did not know whether he got all the way off the pavement. He continued to watch plaintiff through his rear view mirror. Plaintiff was 'more or less prancing and trying to go,' 'acted like he was wanting to run across the road,' and was edging to the west. Menaugh first saw defendant as defendant was passing him after he was parked, and believed Kelly had but was sure Repper had not passed him. He estimated that, as the Kelly and Repper cars passed him, the Repper car was approximately 2 or 3 car lengths, 30, 35 feet, back of the Kelly car. Menaugh saw plaintiff start running across the road behind the Repper car as soon as, it looked like, Repper passed plaintiff, saw plaintiff 'come out from behind it [the Repper car] onto the other part of the pavement, and then I heard the brakes squealing.' Plaintiff did not come out from in front of the truck. The truck stopped. Menaugh immediately turned around and went back to the scene. He estimated that the collision occurred 75 to 80 feet 'back' of his parked car, about the middle of the north half of the pavement; that the front of the truck was west, he did not know how far, of the stable driveway, and plaintiff was on the pavement within approximately 3 feet of its north edge and approximately 8 or 9 steps in front of the truck. He testified that his car as he pulled onto the shoulder and on the shoulder would obstruct defendant's view to some extent and, as the occurrence developed, the Kelly and Repper cars passed between plaintiff and defendant.
Kelly testified Menaugh started to stop and he then first saw plaintiff jump back from in front of Menaugh's car. Plaintiff was standing 5 or 6 feet south of the edge of the concrete when he passed. He first became conscious of a car following him when he came alongside Menaugh's car, and was then traveling about 10 m. p. h. He testified that the truck passed him after he passed plaintiff; that Menaugh pulled onto the shoulder. Kelly made a 'U' turn, 'anywhere between fifty and a hundred feet' east of the entrance to the stables to return to the scene.
Repper was first some distance behind the Kelly car. He noticed plaintiff run out on the road and back to approximately 10 feet south of the concrete. When Menaugh's car slowed, witness slackened speed and got real close, within 5 or 10 feet of the Kelly car. The cars were then traveling 10 to 15 m. p. h. He looked in his rear view mirror and saw plaintiff 'take out,' start running north across the street 'within 10 feet' behind his car. Plaintiff, based on the cross-examination, puts this distance in his brief at 10 or 15 feet. At approximately that time he saw defendant's westbound truck within about 10 or 15 feet of his car, sensed there would be an accident, looked in his rear view mirror, and saw the impact. The truck continued on for 10 or 15 feet after striking plaintiff.
Defendant Waller testified that the truck was about 7 feet wide; that he was traveling 30 to 35 m. p. h.; that he was looking ahead all the time as he was proceeding westwardly; that he saw to his right and to his left; that the eastbound cars, which were moving slowly in the south lane, obstructed his view of the driveway and he did not see plaintiff on the driveway; that plaintiff, when he first saw him, was very close to, approximately in the center of, within a step or two of the center of 87th Street, running as fast as he could go across the pavement, and the truck seemed to be right on top of plaintiff, 50 feet, or maybe more, from plaintiff; that he, defendant, immediately hit his brakes, locked his wheels and left skid marks approximately 58 feet long; that plaintiff never stopped running; that he was not able to stop the truck, struck plaintiff, and continued on some distance after the impact before he could stop.
The testimony was that defendant did not swerve his truck (defendant stating he did not have time) or sound his horn; that the skid marks were on the north half of the pavement, 58 feet in length, and practically straight; and that a dent caused by the truck striking plaintiff was just to the left of the center of the upper portion of the grille of the truck. The truck was in good mechanical condition.
Defendant had expert testimony, the only evidence on the issues, that it would take 76 feet to stop the truck when traveling 30 m. p. h. and 96 feet to stop it when traveling 35 m. p. h. and that the skid marks showed all the wheels on the truck had locked at the same time, and with the front wheels locked, it was impossible to swerve the truck in either direction.
Our review of the submissibility of plaintiff's case is on the theory upon which plaintiff grounded a recovery. Quinn v. St. Louis Pub. Serv. Co., Mo., 318 S.W.2d 316, 323; Welch v. McNeely, Mo., 269 S.W.2d 871, 875. We review the evidence in the light most favorable to plaintiff, give plaintiff the benefit of all favorable inferences arising therefrom and disregard defendant's evidence unless it aids plaintiff's case. Daniels v. Smith, Mo., 323 S.W.2d 705; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633[3, 4]. But the favorable consideration of the evidence rule calls for a consideration of all the facts shown by plaintiff, not merely part of them isolated from the rest (Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 142); and it does not require courts to supply missing evidence, or disregard the dictates of common reason and accept as true that which obviously, under all the record, is not true, or to give plaintiff the benefit of any other than reasonable inferences (Wilkins v. Allied Stores of Mo., Mo., 308 S.W.2d 623, 629; Nance v. Atchison, T. & S. F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547, 552; East v. McMenamy, Mo., 266 S.W.2d 728, 731[2, 3]).
The peril as a basic fact of the humanitarian doctrine ...
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