Losh v. Benton, 49945
| Decision Date | 14 September 1964 |
| Docket Number | No. 49945,No. 2,49945,2 |
| Citation | 382 S.W.2d 617 |
| Parties | J. L. LOSH, Respondent, v. William Max BENTON, Appellant |
| Court | Missouri Supreme Court |
Harold L. Henry, West Plains, for plaintiff-respondent.
Richard D. Moore, Green & Green, H. D. Green, West Plains, for appellant.
BARRETT, Commissioner.
Virgie Losh died after being struck by the defendant Benton's automobile. Her husband J. L. Losh instituted this action against Benton to recover $25,000 damages for her death. Ten members of a jury returned a verdict in favor of the defendant and the trial court sustained the plaintiff husband's motion for a new trial on the ground that 'the verdict of the jury is against the weight of the evidence.' The defendant Benton has appealed from this discretionary ruling and thus necessarily the only question briefed and argued and of course the only one involved is whether the plaintiff made a submissible case of the four disjunctively submitted assignments of negligence under the humanitarian doctrine--failure to stop, or slacken speed, or swerve, or to have given a timely warning. Sup.Ct.Rule 78.01, V.A.M.R.; V.A.M.S. Sec. 510.330; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; Johnson v. St. Louis Public Service Co., Mo., 237 S.W.2d 136.
Mrs. Losh was struck and killed about 8 o'clock on the evening of July 6, 1961, as she was attempting to cross Harris Street (also known as H Highway) in Willow Springs. Harris is a north-south street and in the immediate vicinity is a viaduct with a southward grade extending approximately 582 feet over the railroad tracks. At the south approach to the viaduct Harris Street is interested by Valley Street Road, an east-west street with paved traffic lanes about 25 feet wide. Off the southwest quadrant of the interssecting streets Mr. McGlynn has his grocery store. Mr. McGlynn gave these measurements and distances: Harris Street 'to where the pavement ends' is 24 feet and beyond the pavement 'where the blacktop is' is 22 feet wide. Across the pavement on the east side of the highway, there is a 15 foot shoulder. He said that the distance from the edge of the blacktop of Harris Street to his store is 40 feet and from the store to the edge of Valley Street Road the distance is 42 feet. There are four outside lights 'at the edge of the porch' and an overhead street light on the east side of Harris Street.
After Mrs. Losh was struck by the defendant's automobile there was some debris on the highway and skid marks. All were agreed that the skid marks were 'straight,' there was some conflict in the evidence as to their length and location. Mr. Losh said there were some bloodstains on the pavement south of the debris. He said that the skid marks began 'at about or near Valley Street Road,' that the length of the skid marks to the debris was 36 feet, from the debris to the bloodstains 39 feet, from the debris north to Valley Street Road was 63 feet. Mr. McGlynn said that the distance from the skid marks to the spot of blood was 70 feet.
Mrs. Losh had been in McGlynn's store and was on her way to Mrs. Parker's to stay for the night, a half block east of Harris Street on Valley Street Road. Lorene Collins was sitting in the driver's seat of her family's automobile parked in front of the store. She saw Mrs. Losh leave the grocery store and walk alongside the parked automobile to the highway where she stopped, looked in both directions and proceeded 'four or five feet' onto the highway when she was struck by the defendant's automobile.
Mr. Benton, taking his son home from a scout meeting, was driving a 1957 Chevrolet--in excellent mechancial condition. He said that he was following another automobile across the viaduct and that that vehicle turned right on Valley Street Road. Other witnesses saw the lights of an automobile on Harris Street before the defendant came into view but the implication from their testimony was that no other vehicle interfered with his view south on the street. He says that as soon as he saw Mrs Losh he immediately applied his brakes but was unable to avoid hitting her. It was his position that...
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