Lee v. Holland, 21805
| Decision Date | 04 May 1953 |
| Docket Number | No. 21805,21805 |
| Parties | LEE v. HOLLAND. |
| Court | Missouri Court of Appeals |
Lester G. Seacat, Jefferson City, for appellant.
Keyes & Bushman, Jefferson City, for respondent.
This is an action for damages for personal injuries sustained by plaintiff William Henry Lee (a minor) as a result of being struck by an automobile driven by defendant, Clinton Eugene Holland, while plaintiff was a pedestrian on Highway 54 north of Jefferson City. Plaintiff had a verdict and judgment in the sum of $5000 and defendant appeals.
On Sunday, January 1, 1950, plaintiff Lee, age 17 and three other boys, Herbert Willis, James Pfenenger and George Wagner, spent the afternoon hunting along the Katy tracks in Callaway County north of Jefferson City. Lee was wearing a yellow coat, Willis a white sweat shirt, Pfenenger a brown flannel shirt, and Wagner a yellow sweat shirt. All wore blue jeans.
The boys quit hunting before it was dark, but stopped along the tracks and rested a little bit. Later in the afternoon they started to Jefferson City. From a point near the Katy tracks they walked south on the shoulder of the west or right side of Highway 54. From that point to the scene of the accident the road is straight and level. The slab is 21.5 or 22 feet wide. The shoulder was 7 or 8 feet wide and was a fairly smooth place to walk.
At the time of the accident Pfenenger and Willis were walking abreast in front of the group. Pfenenger was on the inside about two feet from the slab. Willis was on the outside. Wagner was immediately behind them and plaintiff Lee was behind Wagner. They had remained on the shoulder off the slab all of the way and walked without stopping from the point near the Katy overpass until the accident happened.
The accident occurred at about 6 o'clock p. m., across the slab from Dean's Drive-In (a drive-in restaurant) which was situated about 60 feet from the edge of the highway slab on the east side of Highway 54. It was a little less than half a mile north of the intersection of Highways 63 and 54 north of Jefferson City, and a little over half a mile south of the highway overpass at the Katy tracks. The restaurant was open for business at the time and advertising lights on the outside were lighted and there were cars in the driveway.
Just before defendant's automobile hit plaintiff Lee, one of his companions (Willis) glanced around over his shoulder and said something to him. At that time Lee was on the shoulder about 2 1/2 feet from the edge of the slab and about five feet back of Willis who spoke to him in an ordinary tone of voice. Lee was carrying a single shot 20-guage shot gun, horizontally over his neck and shoulders with one arm looped over the stock and one arm over the barrel. A few seconds--'a very, very, short period of time' after that Lee was struck by the car.
Lee testified that he was walking on the shoulder at the time, but was closer to the slab than was Wagner. He did not see or hear the automobile before it struck him or feel the impact. He had no recollection of being hit or of anything that transpired thereafter until the following Friday.
One eye-witness to the impact described it thus:
'
This same witness testified that the accident happened so fast that he could not say whether Holland's car was on the slab or on the shoulder.
After the impact Lee passed Willis and Pfenenger at an angle to the pavement, either in the air or rolling, and came to rest 15 to 20 feet away on the shoulder about six to ten feet from the right side of the slab, more in the ditch than on the shoulder. He passed in front and on the left of Willis and Pfenenger, who were on the shoulder at the time, and between them and the pavement.
Immediately after the accident all of the other boys went to the aid of Lee. He was unconscious or semiconscious when the bystanders reached him and was bleeding some about the head. At least one of his shoes was off and perhaps both of them. The barrel of his gun (observed later) was bent and the stock was broken.
Defendant's car, after a momentary slowdown, continued down the highway about 1500 feet. The right front fender was bent; the right front headlight was out; the windshield was cracked and the canvas in the convertible top was torn.
The Highway Patrol arrived on the scene within a very few minutes. At that time defendant stated to the Patrol that he was driving about 65 miles an hour. He also stated that the car he was meeting at the time had its lights on and that he did not see anybody on the highway and didn't know he had hit anything until he felt it.
Various witnesses for plaintiff testified that no horn was heard before the accident. Also that no flashing lights were observed, or the car observed to swerve.
After the accident, the witnesses observed only one car approaching from the south between the Highway 54-63 intersection and the scene of the accident. It was some distance down the road and had dim lights.
An ambulance was called from Jefferson City and plaintiff was taken to a hospital there where he remained for 13 days. Since no claim is made that the verdict is excessive there is no need to recite the extent of plaintiff's injuries.
Defendant, Holland, age 22, testified he started from Fulton to Jefferson City about 5:30 p. m., on January 1, 1950, driving a '48 Studebaker convertible. He was accompanied by Miss Mildred Zbendin and Donald Schiverdecker. At the time of the trial the latter was in the Air Corps and unavailable as a witness. They were in the front seat together. Miss Zbendin sitting in the middle. They were on their way to a picture show in Jefferson City. Defendant said his car was going 60 to 65 miles an hour; that the brakes were in good order; that he was driving on the right-hand side of the center line of the highway; that he never had his car off the slab; that prior to the time of the accident, he did not see anybody on the pavement or in front of the car. At the time that the accident occurred he knew that he had struck something but did not see it before the impact. He had his headlights on and was looking straight ahead and watching the highway as he went down the road. After he struck the object, he thought he had hit a dog or a bird or something because it broke the windshield and he started to go on and then decided he had better stop and make sure. When he went back plaintiff was lying on the slanting part of the shoulder.
Miss Zbendin also testified that defendant drove on the slab portion of the highway all the way from the overpass to the scene of the accident; that the car was not on the shoulder at any time. She recalled the circumstances that the car struck something, but she did not see anything prior to the time of the impact.
Mr. Ray Little, of Fulton, an auto body man, did the repair work on defendant's car after the accident. He testified that the right front fender was bent around the headlight and the headlight was shoved back. The windshield was broken out. The chrome molding around the windshield was bent. The upright post had a dent across it like some sharp object had hit it.
The balance of defendant's evidence went to the nature and extent of plaintiff's injuries.
At the close of plaintiff's case, and again at the close of all the evidence defendant offered and the court denied his motion for an instructed verdict.
Defendant's first contention is that the court erred in...
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