Loyd v. Moore

Decision Date18 May 1965
Docket NumberNo. 31617,31617
Citation390 S.W.2d 951
PartiesLouis LOYD, (Plaintiff) Respondent, v. June MOORE, (Defendant) Appellant.
CourtMissouri Court of Appeals

James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellant.

William B. Kelleher, St. Louis, for respondent.

RUDDY, Presiding Judge.

A trial by jury of plaintiff's suit to recover damages of $7500 for personal injuries, sustained when plaintiff was struck by an automobile operated by defendant, resulted in a verdict for defendant. The trial court sustained plaintiff's motion for a new trial on the ground that Instruction No. 2 was prejudicially erroneous. Defendant has appealed the trial court's order, contending that Instruction No. 2 was a proper instruction and was not prejudicially erroneous and further contending that plaintiff failed to make a submissible case of failure to stop or slacken and give a timely warning under the humanitarian doctrine.

At the time of plaintiff's injury he was a letter carrier and on April 21, 1961, at approximately noon time, he picked up some mail from the relay boxes located on the northeast corner of Illian and Goodfellow Avenues in the City of St. Louis, Missouri. Goodfellow runs north and south and Lillian runs east and west. After picking up the mail at these relay boxes he proceeded west on Lillian, crossing Goodfellow, having as his destination the north side of Lillian west of Goodfellow. While crossing Goodfellow and when he was within three or four feet of the center line of Goodfellow he stopped because some southbound cars had come to a stop at a stop sign at Lillian and while in this position he was struck by the car operated by the defendant.

At the beginning of plaintiff's case, plaintiff's Exhibit A was introduced and received in evidence without objection. This exhibit was a plat of the intersection of Lillian and Goodfellow drawn to a scale of one inch to 10 feet. This exhibit was placed in the presence of the jury and showed Lillian to be 40 feet in width and Goodfellow south of Lillian divided by a raised island, which island was approximately 3 1/2 to 4 feet wide. This island did not continue north of the south curb line of Lillian. The distance from the west curb of Goodfellow south of Lillian to the island was 47 feet and the distance from the east curb of Goodfellow south of Lillian to the island was 48 feet. From the northeast curb to the northwest curb of Lillian and Goodfellow was a distance of 77 feet and 6 inches. The plat showed three marked southbound lanes for travel on Goodfellow south of Lillian and 3 northbound lanes on Goodfellow south of Lillian. North of Lillian the plat showed two marked northbound lanes and two marked southbound lanes. The north and southbound lanes adjacent to the center line of Goodfellow north of Lillian are approximately 10 feet in width. The other north and southbound lanes at their intersection with the north curb line of Lillian are considerably wider, approximately 29 feet. The stop sign for eastbound traffic west of Goodfellow was approximately 20 feet west of the west curb of Goodfellow.

Plaintiff testified that after he picked up the mail at the relay boxes he proceeded west on Lillian crossing Goodfellow carrying his mail pouch and the mail on his left shoulder. The path he followed across the street was approximately 2 1/2 feet north of the north curb line of Lillian Avenue. As he left the curb on the northeast corner he saw four cars coming south on Goodfellow and as he crossed from this point to the point where he was struck he saw no cars pass in front of him or behind him going north. He said no other cars, with the exception of the car driven by defendant, turned left off of Lillian to go north on Goodfellow. He walked to a point about 3 or 4 feet from the center line of Goodfellow and then stopped because the southbound cars had come to a stop at Lillian while he was walking across the northbound lanes of Goodfellow. He said these cars had stopped before he stopped. He thought the distance from the northeast curb to the point where he stopped was more than 30 feet. He said the lane in which he was stopped was the northbound lane closest to center of the street and that he had gotten about one-half way across this lane when he stopped. The stopped southbound car nearest plaintiff was three to four feet west of the center line of Goodfellow with the front end even with the north curb line of Lillian. At the time plaintiff stopped he was about even with the driver of the southbound car. He said there was nothing to interfere with his vision to the west along Lillian Avenue as he was walking across the street; that there were no obstructions. He said he could see past the nearest car that was stopped in the southbound lane and that he could see over the hood of that car. He said defendant's car was about 18 inches from him when he first saw it and that he could not estimate the speed of her car at that time and could not say whether she was swerving or attempting to stop. Prior to seeing the defendant's car he had come to a stop and said that he did not stop because of seeing her car but stopped because of the obstruction caused by the stopped southbound cars.

When plaintiff saw defendant's car it was facing north. However, he said not due north. He did not know where the car came from and did not know that defendant was attempting to make a left turn from Lillian to go north on Goodfellow. As he walked from the northeast corner of Lillian and Goodfellow he was not aware of any traffic that might have been eastbound on Lillian and stopped at Goodfellow. He would not say there was none but he said he paid no attention. When defendant's car came in contact with plaintiff he was hurled through the air between ten and twenty feet. At the time he was struck, the southbound cars stopped at Lillian were still there. He said defendant's car stopped immediately after making contact.

The testimony of defendant showed that she was driving east on Lillian, west of Goodfellow, and as she got near Lillian she had to come to a stop behind two or three other cars ahead of her which had also stopped for the stop sign on Lillian and Goodfellow. The intersection of Lillian and Goodfellow was protected by stop signs in all directions. She had to wait just a few seconds before she proceeded. She paid no attention to where the cars ahead of her went and as she came up to the stop sign, after the other cars had left, she saw three cars to the north of her coming south and two cars to the south of her coming north. After the other cars ahead of her had left and she had reached the intersection she proceeded to make a left turn to go north on Goodfellow. In doing so, she either slowed down or stopped her car to permit a westbound car to pass. To her right and proceeding north on Goodfellow was a red truck which she thought was carrying some long pipes. She permitted the truck to proceed ahead of her north on Goodfellow and then she started to follow behind it. In the meantime the southbound cars had come to a stop at the intersection stop sign and she did not see any people or any pedestrians between the truck which was proceeding north and the southbound cars on Goodfellow. Thereafter, she started to complete her left turn. She thought that at the time she was making her left turn her foot was between the gas pedal and the brake, explaining that she had to make more than a right angle turn to go north on Goodfellow and that she had to make a 'V' turn. She came about three-fourths of the way out to the center of the intersection before starting to make her left turn. She first saw plaintiff when he was about two feet in front of her car at which time he was walking. She said she applied the brakes immediately and stopped the car in that two feet. She thought it was the right front fender of her car that came in contact with the plaintiff. She said at the time she first saw plaintiff he was near the lane next to the center line of the street. It seemed to her that he was a couple of feet from the line of this lane which would have placed him a full lane plus a couple of feet from the center line of Goodfellow. She said at the time she first saw plaintiff she thought she was going 10 to 15 miles per hour and added 'if I was going that fast because of the traffic conditions.' She put on her brakes immediately. She said her car is 16 or 17 feet long and that three-fourths of her car, about 12 feet of it, was out of the intersection north of the north curb line of Lillian at the time of the impact and that the other part of her car, the remaining fourth, was still in the southbound lane next to the center of the street, blocking southbound traffic. She was on an angle at the time she made contact with plaintiff. She did not sound her horn at any time.

Robert Williamson, rebuttal witness for plaintiff, testified that he was an attendant and manager of the filling station on the northwest corner of Goodfellow and Lillian. At the time plaintiff was struck he was engaged in putting gas in an automobile and witnessed the occurrence just about the time defendant's car hit plaintiff. He did not know what direction defendant's car came from but that it was facing north at the time of contact with plaintiff. He saw plaintiff start across the street from the northeast corner but did not follow his travels after he started until he looked up at the time he saw plaintiff struck. He said contact was made between defendant's car and plaintiff about the middle of the northbound lane next to the center of Goodfellow. He said that if you would continue the sidewalk across the intersection plaintiff was four to five feet north of the sidewalk line. He said there were no southbound cars on Goodfellow at the time.

We take up defendant's first contention that plaintiff failed to make a submissible case for the jury. In determining whether plaintiff made a...

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10 cases
  • Jordon v. Johnson, 8562
    • United States
    • Missouri Court of Appeals
    • February 2, 1967
    ...brakes were applied, so we need not theorize upon his ability to stop in that or some other distance. Loyd v. Moore, supra, Mo.App., 390 S.W.2d 951, 957(9); Lang v. St. Louis-San Francisco Ry. Co., 364 Mo. 1147, 273 S.W.2d 270, 275. In the absence of proof of some other time, the majority o......
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    • Missouri Court of Appeals
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    ...by the jury. Leap v. Gangelhoff, 416 S.W.2d 65, 67(4) (Mo.1967); Brummet v. Parker, 509 S.W.2d 10, 13(5) (Mo.1974); Loyd v. Moore, 390 S.W.2d 951, 955(7) (Mo.App.1965); Yarrington v. Lininger, 327 S.W.2d 104, 108-109(6) In a situation such as that presented by this record, where a pedestria......
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    ...Public Service Co., Mo.App., 268 S.W.2d 60; and, even at ten miles per hour, excluding reaction time, 'within nine feet', Loyd v. Moore, Mo.App., 390 S.W.2d 951. Additional cases relied upon by defendant include: Reed v. Burks, Mo.App., 393 S.W.2d 377, where two cars 'sideswiped' on a narro......
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