Lilly v. Boswell

• Citation: 362 Mo. 444,242 S.W.2d 73
• Decision Date: 11 July 1951
• Docket Number: No. 42240,No. 1,42240,1
• Parties: LILLY v. BOSWELL et al
• Court: United States State Supreme Court of Missouri

Page 73

242 S.W.2d 73

362 Mo. 444

LILLY v. BOSWELL et al.

No. 42240.

Supreme Court of Missouri, Division No. 1.

July 11, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 10, 1951.

Oliver & Oliver and Jack L. Oliver, Cape Girardeau, for appellants.

Limbaugh & Limbaugh, Cape Girardeau, for respondent.

HOLLINGSWORTH, Judge.

This is an action to recover damages in the sum of $25,000 for personal injuries sustained by plaintiff (respondent) in an automobile collision. The case was submitted under the humanitarian doctrine. Following a verdict for $1,750, plaintiff filed a limited motion for new trial of the issue of damages only on the ground the verdict was grossly inadequate, which motion the court sustained. Defendants appeal, assigning as error: (1) that plaintiff failed to make a submissible case, and (2) the sustaining of plaintiff's limited motion for new trial on the issue of damages.

The evidence is stated from the standpoint most favorable to plaintiff.

The collision occurred near the noon hour on Sunday, the 10th day of April, 1949, at the intersection of Ellis and Independence Streets in the City of Cape Girardeau, Missouri. Ellis Street is 39 feet, 8 inches, in width and extends north and south. Independence Street is 37 feet, 4 inches, in width and extends east and west. A stop sign, 2 feet wide and elevated 6 inches above the level of the pavement, is embedded in the center of Ellis Street, 7 feet and 9 inches south of its intersection with Independence. Independence is a major or 'through' street.

Plaintiff was riding in the rear seat of an automobile owned by her son-in-law, Lawrence B. Fendler, and driven by her daughter, Elizabeth Fendler. In the front seat with Elizabeth Fendler were her husband, Lawrence, and their small son. Two other of their children were in the rear seat with plaintiff. The Fendlers and plaintiff were residents of St. Louis County. They had come to Cape Girardeau on Saturday looking for business possibilities. On the morning of the collision, they had attended church and, at the time of the collision, were driving north on Ellis Street. Defendant Richard Boswell, aged 18 years, accompanied by his mother, his sister and a neighbor girl, had gone to another church in an automobile owned by his father, defendant Thomas E. Boswell. Following the service, they started to their home in the Boswell car, Richard Boswell driving. At the time of the collision they were traveling west on Independence Street.

As the Fendler car, proceeding north on Ellis at 15 to 20 miles per hour, approached the intersection of Independence, Mrs. Fendler and Mr. Fendler noticed the unusual placement of the stop sign, commented upon it, and Mrs. Fendler brought the car to a stop at the sign. She looked to the east and could see a full block down the street. She saw the Boswell car about 'half or three-quarters of the way down the street.' There was nothing unusual about its speed and Mrs. Fendler assumed she had 'plenty of time' to cross Independence. There was no other traffic approaching the intersection. She shifted gears and started across the street in low gear. As she proceeded across the street she was engaged in shifting from low to high gear. When she had gotten three-fourths of the way across the intersection, she realized that the Boswell car was going to strike their car. She exclaimed to the children to 'watch out; he is going to hit us', and the collision occurred at that moment. When she realized the collision was imminent, she swerved to the left, but there was not time or space to permit a 'violent' swerve. She also attempted to apply her brakes. The Boswell car struck the right side of the Fendler car near the door. The Fendler car then rolled on to the northwest corner of the intersection, across a sidewalk, and struck a concrete retaining wall. Other than the testimony of defendant Richard Boswell, to which we will refer, there was no testimony as to the rate of speed at which the Fendler car was traveling from the time it entered the intersection to the point of collision. Richard Boswell, called as a witness by plaintiff, testified that as he drove west on Independence he was driving at 20 miles per hour when he first saw the Fendler car; that he was then 60 feet east of the intersection; that the Fendler car was on Ellis Street about 10 feet south of the intersection with Independence when he first saw it; that he assumed it would stop at the sign and continued his speed of 20 miles per hour from the time he first saw it until within 12 feet of the collision; that the Fendler car was traveling about the same speed as defendants' car when he first saw it and he did not know whether it slowed down at the stop sign; he just knew it did not stop at the sign, but came on through the intersection and never stopped from the time he first saw it until after the collision; that he was 40 feet from it when he realized it was going on through the intersection and was unable to stop, slow or swerve his car and avoid the collision; that when he was 40 feet from the Fendler car he undertook to apply his brakes, proceeded about 28 feet before the brakes were set and his car then skidded 12 feet to the point of collision.

Under the humanitarian doctrine, defendants owed plaintiff no duty until the automobile in which she was riding came into a position of imminent peril. 'The meaning of the term 'imminent peril' as the basic fact of the humanitarian doctrine has been well settled. The peril truly must be imminent--that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient * * *.' Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420, 421. The zone of imminent peril would be increased or diminished depending upon whether Mrs. Fendler was obvious to or aware of the likelihood of being struck by defendants' automobile as she attempted to drive across Independence Street.

Defendants contend that when Mrs. Fendler saw the Boswell car before entering the intersection the Fendler car did not come into a position of peril until it had reached a point beyond which she could not stop it before the collision; and that since there was no evidence of the speed at which she was driving as she crossed the intersection or the distance in which she could extricate her car from its peril, plaintiff's case must fail. In support of this contention, defendants cite: Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296, 300; Gosney v. May Lumber & Coal Co., 352 Mo. 693, 179 S.W.2d 51, 53; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33, 35; Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782.

Those cases are readily distinguishable on the facts. In each of them the evidence failed to show that defendant could have averted the collision after plaintiff came into a discoverable position of imminent peril. The evidence in this case is quite different.

Mrs. Fendler testified that although she saw defendants' car one-half to three-fourths of a block east of the intersection, yet she assumed she had 'plenty of time' to cross and did not realize the proximity of defendants' car until the collision was imminent. Defendant Richard Boswell admitted he saw the Fendler car before it entered the intersection and saw it continuously thereafter.

There was no evidence of the length of the block or whether it was longer or shorter than the ordinary city block. We do know, however, that in ordinary parlance the term 'block', when used to express a measurement of distance, means about 300 feet. 'It is a matter of common knowledge that in the settlement of the Plains states * * * urban areas were platted generally in squares or blocks of 300 feet on each side, and that, when used as a measurement of distance and nothing appears to the contrary, the commonly accepted meaning of 'a block' is 300 feet.' Gorman v. Dalgas, 151 Neb. 1, 36 N.W.2d 561, 563.

As defendant Richard Boswell approached the intersection it was his duty to exercise the highest degree of care. That duty required him to keep a careful watch ahead and laterally for other vehicles. 'He was required to look in such an observant manner as to * * * see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances.' Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118. 'Where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed.' Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548, 553. See also Weis v. Melvin, Mo.Sup., 219 S.W.2d 310, 311. The jury could reasonably have found that in the exercise of the highest degree of care he could have seen the Fendler car from the same distance Mrs. Fendler saw the Boswell car; that he was more than 100 feet from the intersection when the Fendler car entered it; and that, had he been attentive to his duty to look, he could have seen Mrs. Fendler was engaged in shifting gears and unaware of his proximity. Her car had entered the intersection before he had come dangerously close to it. He did not notice any change in its speed as it crossed and was chargeable with notice that if both cars continued at their present rate of speed a collision was inevitable. He admitted he could have stopped his car within 40 feet, but later said he could not do so. Obviously, of course, when traveling at 20 miles per hour, he could have stopped it within 100 feet.

In Prater v. Rausch, 344 Mo. 888, 129 S.W.2d 910, 911, we quoted with approval from an earlier case: 'Plaintiff's car was moving toward the path of defendant's car, and from the evidence the jury may have found that she and her husband were oblivious of the near and dangerous approach of the latter, and that defendant...