Knight v. Richey
| Decision Date | 14 July 1952 |
| Docket Number | No. 1,No. 42790,42790,1 |
| Parties | KNIGHT v. RICHEY |
| Court | Missouri Supreme Court |
Fred F. Wesner, Sedalia, E. E. Thompson, Sam Mandell, Kansas City (Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel), for appellant.
Frank O. Knight, Kansas City, for respondent.
VAN OSDOL, Commissioner.
In this action for personal injuries sustained by plaintiff in an intersectional collision between the motor bicycle on which plaintiff was riding and the automobile driven by defendant at or near the western corporate limits of Sedalia the jury awarded plaintiff $15,000, and defendant has appealed from the judgment entered upon the verdict.
Plaintiff's case was submitted to the jury upon primary negligence of defendant in driving at a high and excessive rate of speed, and in failing to yield the right of way to plaintiff; and upon negligence under the humanitarian rule in failing to slacken speed or swerve to the right.
Defendant-appellant contends (1) plaintiff's evidence shows that he was guilty of contributory negligence as a matter of law in failing to look out, barring his recovery upon primary negligence; and (2) the evidence was insufficient to justify the submission of defendant's negligence under the humanitarian rule, in that there was no substantial evidence tending to show the speed of defendant's automobile could have been slackened or the automobile swerved and the injury averted after plaintiff was in imminent peril. Defendant-appellant further contends (3) Instructions Nos. 1, 2 and 3, given by the trial court at plaintiff's request, were erroneous. In examining these contentions it is necessary to consider the evidence tending to show the physical surroundings and the facts and circumstances of the collision.
The north side of West Main Street, an east-west street, paved with asphalt 'black top' twenty feet wide, is intersected by North State Fair Boulevard, a north-south street, paved with asphalt eighteen feet wide, on the western outskirts of Sedalia. The building of the Kehl Packing Company is located some fifty feet northwest of the intersection. There are no 'stop' signs at the intersection. North State Fair Boulevard does not pass directly through Main Street. The boulevard 'jogs' to the eastward and then continues southwardly. South of Main Street the boulevard is known as State Fair Boulevard. It is thirty feet from a southward projection of the east line of North State Fair Boulevard to the west line of State Fair Boulevard. It is ninety feet from the projected center line of North State Fair Boulevard to the center line of State Fair Boulevard 'proper.' In approaching from the north, North State Fair Boulevard ascends at a grade of about four per cent until it attains the approximate level of West Main Street at the 'property line.' The hard surface of North State Fair Boulevard widens or 'fans out' as the boulevard approaches the pavement of West Main. At the approach there are ten or twelve feet of solid level ground available for traffic north of the north edge of the Main Street pavement. The evidence tends to show that in July 1948 there were elm seedlings, buck brush and horse weeds six to ten feet high along and between the ditch and the property line east of the boulevard and north of West Main. Exhibits, photographs introduced by plaintiff, disclose that the brush, weeds and seedlings extended southwardly and to within fifteen or twenty feet of the pathway of westbound vehicles on West Main.
Soon after 10:30 o'clock in the morning of July 29, 1948, plaintiff, Claude H. Knight, seventeen years old, was riding his Schwinn- Built Wizard Motor Bicycle, approximately six feet long, southwardly on North State Fair Boulevard. It was a 'sunshiny day,' and the pavement was dry. When plaintiff was in the vicinity of the right of way of the Missouri Pacific Railroad, three or four blocks north of the intersection of the boulevard with West Main, his motor bicycle (or 'motor bike') was in good condition mechanically and he was moving at a speed of about ten miles per hour. His motor bicycle and defendant's westbound '47 Nash collided as plaintiff was moving from North State Fair Boulevard out onto West Main.
Plaintiff was seriously injured, and his 'motor bike' was demolished. The front of defendant's automobile was badly damaged.
Plaintiff testified that, moving at a speed of ten or twelve miles per hour, he could have stopped his motor bike within about fifteen feet. He has no recollection of what transpired after he moved from the vicinity of the Missouri Pacific right of way. He was rendered unconscious by the collision. Physicians testified it is not unusual for head injuries such as were sustained by plaintiff to cause traumatic amnesia, or traumatic loss of memory of 'what happened immediately preceding the accident.'
A witness for plaintiff testified of observing the collision. The witness was standing inside the building of the Packing Company northwest of the intersection and looking southeastwardly through a window. He testified the vehicles of plaintiff and defendant collided in the center or a little past the center of Main Street on the south side of that street. Plaintiff was moving ten or twelve mile per hour, and defendant 'was going at least 40.' The defendant's automobile swerved southwardly and came to a stop on the south side of Main sixty feet west of the intersection (another witness said defendant's car was stopped 'about thirty feet west of the west line of the boulevard running north'). The two right wheels of defendant's car were on, and the two left wheels were off, the (south) edge of the 'black top.' The upper part of plaintiff's body was lying under the left (south) side of defendant's car. The motor bike was lying in front of the car.
When the witness first saw defendant's Nash and plaintiff's motor bicycle they were 'right close' to the intersection. Plaintiff was 'just about the center, a little bit past the center of Main Street going south.' The automobile was 'pretty close.' Plaintiff and defendant came into the intersection 'pretty close' to the same time. The witness said he thought each of the parties, plaintiff and defendant, could have seen the other approaching from points one hundred feet from the intersection.
Another witness for plaintiff came to the scene 'shortly after' the collision. The witness testified there were scratches all along the highway as if 'something had been drug across there.' The scratches were in the center, if anything on the south side of the center line of Main Street, and made 'a complete diagonal' until they stopped on the south side of the street.
Plaintiff's witness, a police sergeant, testified that defendant, upon being questioned a few minutes after the collision, stated she had approached the intersection at a speed of thirty-five or forty miles per hour. She explained that she applied the brakes but 'didn't apply them as strongly as she could have applied them' because her two small daughters were standing up in the front seat of the car.
Defendant testified that she was moving westwardly along the right side of West Main and approached the intersection at a speed of about thirty-five miles per hour. She was familiar with the intersection. Her two small daughters were in the rear seat of her car. Upon her near approach to North State Fair Boulevard she saw plaintiff dart southwardly from behind some brush and shrubs. Plaintiff was four or five feet east of the center line of the boulevard. He was looking 'straight south.' When she first saw plaintiff, defendant was approximately fifteen feet east of him; but he was 'at an angle to me, probably a little farther than 15 or 20 feet.' She 'blew the horn and put on the brakes'; and swerved slightly to her left, 'but not appreciably.' She applied her brakes intermittently after the collision to avoid dragging the tires across plaintiff's body. She denied she had told the police sergeant that she had not used the full force of her brakes prior to the collision. From the time she saw plaintiff until he was up within three feet of her vehicle, plaintiff gave no indication that he was going to do anything except continue on across Main Street in front of defendant's car. The front of plaintiff's bicycle was about even with the north edge of the Main Street pavement when defendant started to swerve southwardly (to her left). The front of defendant's automobile was approximately six feet east of the east line of the pavement of the boulevard when she started to swerve. When the vehicles collided, the front end of the bicycle 'might have been slightly across the middle of Main Street, but mostly north of the center line.' The left wheel of defendant's car might have been 'on the center line.'
A witness for defendant testified that defendant was moving about twenty-five miles per hour. The witness saw the motor bike 'run out'; saw the display of the red tail light on defendant's car; and heard defendant sound a warning. When the vehicles collided, the bike was about four and a half feet east of the center of the north road; and the front end of the bike was about three and a half feet north of the center line of Main Street.
(1) We believe defendant-appellant's contention that plaintiff was guilty of contributory negligence as a matter of law is without merit. There was no evidence of plaintiff's conduct during his progress after he left the vicinity of the Missouri Pacific right of way until just before he passed into the intersection. Defendant testified that, when plaintiff moved out on West Main at the intersection, plaintiff was looking 'straight south'; but plaintiff did not so testify. Plaintiff was unable, because of loss of memory, to testify concerning his conduct immediately preceding the collision. Moreover, even...
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