De Lay v. Ward

Decision Date09 November 1953
Docket NumberNo. 43903,43903
PartiesDE LAY v. WARD.
CourtMissouri Supreme Court

Ward & Reeves, Caruthersville, for appellant.

Limbaugh & Limbaugh, Cape Girardeau, for respondent.

DANTON, Judge.

This is an action for damages for personal injuries sustained by plaintiff, a three year old child, when she was struck and injured by an automobile operated by defendant. The cause was submitted solely upon humanitarian negligence in failing to slacken speed, swerve or warn. Verdict and judgment were for plaintiff for $2,000

Defendant took an appeal to the Springfield Court of Appeals and that court ordered the judgment reversed and judgment entered for defendant on the ground that the trial court should have directed a verdict for defendant, as requested. The court said: 'There is not the slightest evidence in the case that defendant ever saw plaintiff until he saw her knocked down and injured by coming in contact with his automobile. * * * There is not the slightest evidence in this case that defendant ever knew that plaintiff was at the side of the highway chucking rocks or other substances into the sewer outlet, until he saw her 'dart' in front of his car. It was then too late for defendant to slow down or to stop his automobile or even to warn plaintiff of her deadly peril.' (Italics ours). DeLay v. Ward, Mo.App., 262 S.W.2d 626. The cause has been transferred to this court and we shall review the record as on original appeal. Art. V, Sec. 10, Const. of Missouri 1945, V.A.M.S.

Error is assigned solely on the trial court's action in overruling defendant's motion for a directed verdict based upon the ground that 'the evidence wholly fails to substantiate any charge of negligence alleged in the plaintiff's petition' and under 'the law and the evidence, the plaintiff is not entitled to recover.' If plaintiff made a submissible case for the jury on any of the assignments of negligence pleaded and submitted to the jury, the court did not err in overruling the motion for a directed verdict. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 94. We have reached the conclusion that viewing the evidence in a light most favorable to plaintiff, the jury could properly find that, in the exercise of the highest degree of care, the defendant could have seen the plaintiff crossing the highway ahead of him and in imminent peril of being struck by his automobile in time, thereafter, with the means at hand and with safety to himself and others, to have slackened the speed of his automobile and avoided injuring the plaintiff. We find it unnecessary to consider the other assignments of negligence submitted.

At the time plaintiff was injured she was crossing Main Street in Bell City, Missouri. Main Street extends from the southwest to the northeast. It is a 'black top', hardsurfaced highway. It is also State Highway No. 91 and the principal highway extending through the city. Defendant was a resident of Bell City and familiar with the highway and with its intersection with Section Line Road extending north and south and intersecting the highway a short distance south of DeLay's garage, a building located on the northwest side of Main Street. The width of the traveled portion of the highway and the width of its shoulders or right of way does not appear from the record, but it is apparent from the testimony that it was a two-lane hard-surfaced state road. From the testimony, a jury could infer and find that the traveled portion of the road was approximately 18 feet in width.

About 3:20 p. m., November 30, 1951, defendant was traveling northeastwardly on his right-hand side of the highway and the plaintiff was crossing from the northwest to the southeast side of the highway. She was struck and injured when she was within about two feet of the southeast edge of the traveled portion of the highway. The right side of the front burmper struck the child and the right rear wheel appears to have passed over her. In view of the conflicts in the evidence, we shall review the testimony of some of the witnesses.

Defendant, called as a witness by plaintiff, testified that, as he approached Bell City driving his 1949 Mercury automobile, he slowed down west of the Cotton Belf railroad tracks and passed around another automobile that had stopped there; and that he then proceeded into Bell City. When defendant entered Main Street and turned northeast, he could see DeLay's garage on his left about 150 yards up the highway. He saw that the highway in front of DeLay's garage was completely blocked by a self-propelled combine located on the highway. He didn't 'know what position it was in,' but it was on the highway and 'they' were working on it and he saw and knew the operator. He 'could absolutely not go around it'; but, as he approached the combine, it began moving off the highway. He could see DeLay's garage and could see on the left side of the combine and he looked in there but didn't see anyone. It does not appear how far DeLay's garage building was located from the edge of the traveled portion of the highway. Defendant testified he 'wouldn't say' there was as much as 15 or 20 feet 'between the garage and the beginning of the highway,' but there were 'a few feet in there.' Other witnesses said there was room for the combine between the garage and the road.

Defendant didn't know exactly how fast he was driving when he first saw the combine and at that time he did not immediately slow down, but as he approached and got closer he began to slow down. Defendant further testified: 'As I got up closer to the combine, as I approached it, I wasn't driving fast. We have a short curve coming across the railroad there * * * and a fellow couldn't make the curve much over 20 miles. * * * All right, as I got up closer and closer, I kept slowing down, driving along slow, you know, and I expect I got down to 10 mile, waiting for the combine to give me room to go on up through Bell City. I had to wait to get them to give me my right side of the road.' Defendant did not stop, but he 'had to slow down for it to get out' of his way. The combine was backing off the highway at an angle, not directly towards the garage, but 'almost west.' He could see it was moving backwards. He was watching the combine, 'until there was enough room to get by.' Defendant testified: 'Whenever they give me my half of the road I went by the combine. * * * It was still in the other lane, * * * when that combine give me my half of that right-of-way there on 91 Highway, I was right up pretty close to the combine. * * * As soon as I had room to go through, I went on through. * * * I don't think I was driving over 15 mile but I would say 20 to be sure, to catch the speed I was driving. * * * When I first seen the little girl she was crossing the highway in front of my car. * * *

'Q. She was going south across the highway? A. Yes.

'Q. Was she going straight across? A. I couldn't tell you. This was quick, and it takes a little time for the mind to concentrate there, and she was just a few feet in front of may car when she started across the road, and, absolutely, I couldn't keep from hitting her. * * * I don't know whether I got on the brake before I hit the little girl--it was all about the same time. * * * I was over on my side of the road, to the right. I had to be there to get around this combine--if I ever swerved to the left--I wasn't going to run into the combine. * * * I rather think it (the automobile) hit her a little bit on the fight side, from the middle, just a little from the middle. * * * She was approximately 2 1/2 to 3 feet over on the black top, from the right side of the road. * * *

'Q. How long did it take you to stop, Mr. Ward? A. Just a very few feet, Mr. Limbaugh.'

On cross-examination by his own counsel defendant stated:

'Q. Now, at the time you approached that place * * * did you know at that time this child was behind the combine? A. I did not.

'Q. If the child had been in the open there, in front of the garage would you have seen her? A. Yes, sir.

'Q. But you did not see the child until she darted from behind the combine? A. No, sir, I did not.

'Q. At that instant you tried to get on your brakes, and did get them on? A. Yes, sir.

'Q. Did you do everything you knew to do to avoid the accident? A. Absolutely, I did.'

Plaintiff's witness McKee testified that at the time in question he was working at DeLay's garage, working on a combine, testing the rear wheels. He was standing on the ground behind the combine watching the wheels and had been working on them. Three or four persons were behind the combine with him. No one was in front of it. The operator of the combine had 'pulled out towards the road and was backing up when the accident happened.' The combine 'went out about a foot' on the highway and was then 'backed up' towards the garage. The engine was running and making a 'right smart noise.' Plaintiff 'was poking some rocks down a hole, into the sewer, in front of the garage.' The sewer was northeast of the combine 'somewheres around ten feet.' 'Mr. Ward was coming up the road and just as Dianne started across the road I saw Mr. Ward come behind the combine, and we heard the lick.' Witness did not see her when she was struck by the car, but only when the right rear wheel ran over her. She was released about 40 feet (by measurement) from the point where she was struck. 'It was 40 feet from where she lay to where the car stopped.' He estimated the speed of the car at 25 to 30 m. p. h. The combine had been out about 6 feet on the highway before defendant arrived, but it was out only about a foot when defendant passed it in his automobile. The automobile stopped 'about the center of the road.' If defendant attempted to swerve, he didn't see him, but he did see defendant in the car and defendant was at all times on his own side of the road. Witness estimated the width of...

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