Lowry v. Mohn

• Decision Date: 08 July 1946
• Docket Number: No. 39643.,39643.
• Citation: 195 S.W.2d 652
• Parties: LOWRY v. MOHN.
• Court: Missouri Supreme Court

195 S.W.2d 652

LOWRY v. MOHN.

No. 39643.

Supreme Court of Missouri, Division No. 1.

July 8, 1946.

Appeal from Circuit Court, Ray County; James S. Rooney, Judge.

Action by Mary Lowry, a minor, by her next friend, Timothy Lowry, against Jacob Mohn for personal injuries sustained in an automobile collision. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Wm. T. Thompson, of Richmond, for appellant.

Lawson & Hale, Arthur R. Kincaid, and Francis G. Hale, all of Liberty, for respondent.

VAN OSDOL, Commissioner.

Action for $20,000 for personal injuries alleged to have been sustained by plaintiff in the collision of a Chevrolet coach, in which she was riding, and a Ford automobile operated by defendant. At the conclusion of plaintiff's evidence, the trial court sustained defendant's motion for a directed verdict, and plaintiff has appealed from the ensuing judgment.

Plaintiff (appellant) contends that substantial evidence was introduced requiring the submission to the jury of specific issues of primary negligence of defendant, (1) in failing to give a warning of his approach, (2) in traveling at an excessive speed under the circumstances, (3) in failing to yield the right of way to the car in which plaintiff was riding, and (4) in failing to operate his car as near the right-hand side of the highway as practicable; and that issues of negligence under the humanitarian rule should have been submitted inasmuch as there was substantial evidence, plaintiff contends, tending to show defendant could have sounded a warning or swerved his automobile to the right and could thus have avoided the impending collision.

When the automobiles collided, plaintiff, a girl fourteen years of age, was seated in the rear seat of the coach; her sister, who was the owner of the car, was on plaintiff's right; and plaintiff's mother was seated on plaintiff's left. The car was being driven by plaintiff's brother, then sixteen years of age; and plaintiff's father was seated on the brother's right. Defendant was driving a Ford automobile; he was accompanied by his two sisters, one of whom is blind, who were seated in the rear seat of the car. The collision occurred about 11:30 in the morning of October 11, 1942, at a right-angle intersection of graveled highways in Caldwell County. The coach, going slightly downgrade, approached the intersection from the east on an east-west road; and defendant's automobile, coming upgrade, approached from the south. The collision occurred "just about the center of the intersection." As one approached the north-south road from the east, a lilac bush on the right and a clump of weeds on the left somewhat obstructed the view of the north-south highway; "there's a row of weeds on the South and hadn't shed their leaves yet." Plaintiff's brother was driving twenty-five or thirty miles an hour; "he looked both ways like any driver would, slowed up to the crossing, — I (plaintiff's father) thought he was going to stop, and went right on." He "almost slowed down and then went ahead." He was traveling about ten miles per hour when he entered the intersection. It was the opinion of plaintiff's father that the Chevrolet coach, moving at ten miles per hour, could have been stopped "in four or five feet." When the "cars hit," the Chevrolet coach "might have been up to fifteen or twenty miles. * * * He spurted up. * * * He hadn't gone twenty feet. * * * and this car came in from the South and hit him." The north-south road is "a forty or sixty foot road maybe." When the Chevrolet coach was at the east line, "the fence line," of the north-south road, plaintiff's father saw the top of defendant's automobile "skimming along, apparently, I judge around forty miles, skimming right along." When at the fence line, a car could be seen down the road "I should judge about forty feet * * * I saw the top of the car but the boy apparently didn't see it." Defendant's car was then "maybe forty feet, maybe less — not any more" south of the center of the east-west highway. Defendant's automobile moved upon the center or "traveled part" of the north-south highway. When the Chevrolet coach approached the intersection, plaintiff was "pretty sure" she saw a car coming from the south. Plaintiff's father heard no warning sound. Defendant's automobile struck the Chevrolet coach "Right in the middle. * * * The prints of those headlights were right in the body each side of the front seat." A ragged hole was torn in the front of the left rear fender next to the body and just above the running board of the Chevrolet coach; the body was dented in, and the top of the left door was buckled outwardly. The front end of defendant's automobile was damaged. When the automobiles came to rest after the collision, the Chevrolet coach was upside down headed northeastwardly near the northwest corner of the intersection and fifteen to twenty-five feet from the center of the intersection; defendant's automobile was near the center of the intersection (west "of the tracks" of the north-south highway) and headed slightly west of south.

We have stated the facts from a standpoint most favorable to plaintiff. It is seen from our statement that the facts relating to surrounding conditions are meager, and that the evidence leaves much information to be desired as to distances, weather conditions, visibility, condition of the surface of the gravel of the roadways, the width and type of the respective highways, and vehicular travel, whereby we can, without difficulty, determine the question of the submissibility of plaintiff's case.

In testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict (as formerly upon a demurrer to the evidence or a request for a peremptory instruction, now abolished by the Civil Code of Missouri), the plaintiff's evidence must be considered true, and the plaintiff given the benefit of every inference of fact which can be reasonably drawn therefrom. Examine Hardin v. Illinois Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075; and Section 112, Civil Code of Missouri, Laws of Missouri 1943, p. 387, Mo.R.S.A. § 847.112.

Attending plaintiff's contention of defendant's negligence under the humanitarian rule, we will disregard all questions of primary or antecedent negligence of defendant. State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50. We will assume defendant saw the automobile in which plaintiff was riding slow down as it came to the east line of the north-south road. At that time defendant could be said to have been justified in believing that the driver of the Chevrolet coach saw defendant's automobile forty feet south of the center of the east-west highway and moving at forty miles per hour; that, by slowing down, the driver of the Chevrolet coach had seen defendant's automobile and was indicating an intention to yield the right of way across the intersection to defendant; and that the Chevrolet coach would not move out onto the highway and into the pathway of defendant's approaching car. Or we will assume defendant could not have seen the Chevrolet coach until it "spurted up" into the intersection. Now, when the Chevrolet coach "spurted up," it could reasonably be considered that defendant, in the exercise of the highest degree of care, should have realized that the driver of the Chevrolet coach did not see the defendant's automobile and intended to move into its...