Miller v. Wilson

• Citation: 288 S.W. 997
• Decision Date: 07 December 1926
• Docket Number: No. 19535.,19535.
• Parties: MILLER v. WILSON.
• Court: Missouri Court of Appeals

288 S.W. 997

MILLER v. WILSON.

No. 19535.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

Rehearing Denied December 24, 1926.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Gertrude Miller against Lucius a. Wilson to recover for injuries to her person and for damage to automobile, with counterclaim by defendant. From a judgment for plaintiff, defendant appeals. Reversed.

W. E. Moser and John S. Karsalek, both of St. Louis, for appellant.

Taylor, Mayer & Thifrin, of St. Louis, for respondent.

BENNICK, C.

This action was instituted by plaintiff to recover for injuries to her person and for damage to her automobile sustained in a collision at the intersection of West Pine boulevard and Kingshighway in the city of St. Louis on December 8, 1923. The verdict of the jury was in favor of plaintiff in the sum of $500 and judgment was rendered thereon, from which defendant has duly appealed.

The negligence pleaded and relied upon (according to the admission in plaintiff's brief) was, first, that defendant failed to give plaintiff a timely warning; second, that defendant failed to keep a vigilant watch; and, third, that defendant saw, or by the exercise of ordinary care could have seen, plaintiff and the automobile in which she was riding in a position of imminent peril of being struck by his automobile in time thereafter by the exercise of ordinary care, with the means at hand and with reasonable safety to himself, to have stopped, slackened the speed of, or turned his automobile so as to have avoided striking that of plaintiff.

The answer was a general denial coupled with a plea of contributory negligence. In addition, defendant filed a counterclaim, upon which a directed verdict for plaintiff was given. The reply was in conventional form. The evidence disclosed that West Pine boulevard runs eastwardly and westwardly, while Kingshighway runs northwardly and southwardly. In the center of Kingshighway is a parkway which extends for some little distance out into West Pine boulevard beyond the line of the sidewalk. At the point of entrance into Forest Park, West Pine boulevard is about 60 feet in width; while the western driveway of Kingshighway is from 60 to 75 feet in width. A light standard, set upon a concrete base, is located in the center of West Pine boulevard at the west line of the west driveway on Kingshighway. This concrete base extends into Kingshighway a distance of 2 or 3 feet.

The collision occurred about midnight. Plaintiff was riding in an automobile driven by her husband westwardly on West Pine boulevard. Mr. Miller first stopped the car as he approached the east drive on Kingshighway. He then drove across to the west side of the parkway, and again stopped to permit an automobile to proceed north on the west drive on Kingshighway. Before starting up, both he and plaintiff looked to the north and south, but saw no traffic approaching. Thereafter he proceeded on across Kingshighway, looking straight ahead, at a speed of five or six miles per hour until directly even with the light standard described above, when plaintiff's automobile was struck by that of defendant, which was being driven south on Kingshighway. The running board, both fenders, and the rear wheel on the right side of plaintiff's car were damaged. Defendant's auto was brought to a stop just in the rear of that of plaintiff.

Mr. Miller did not see defendant's automobile until after the collision. Plaintiff first it when it was three or four feet from her machine Neither plaintiff nor her husband heard the sound of any horn. At the speed Miller was driving he could have stopped the car in a space of one or two feet.

The evidence was that there was nothing to obstruct the view either of defendant, as he was driving south, or of plaintiff and her husband, both of whom could see as far to the north as Lindell boulevard, a full city block away. Mr. Miller admitted that he knew that this intersection was a very dangerous one and that it required unusual care for an automobile moving west to cross Kingshighway. Mr. Arthur A. Mueller, who drove north on Kingshighway before plaintiff's car had entered the western driveway, heard the crash as the cars came together. He, however, did not see defendant's automobile until after the collision.

Defendant offered no evidence, and the case was submitted to the jury without any instructions upon the respective theories of the parties. The sole point urged by defendant for reversal is that the court erred in refusing the requested peremptory instruction for a verdict in defendant's favor on plaintiff's cause of action, offered by defendant at the close of plaintiff's case. Defendant argues, first, that there was no evidence that the collision was caused by any negligence on his part; and, second, that plaintiff should be held guilty of contributory negligence as a matter of law. We have reached the conclusion, however, that a discussion of only the first of these contentions will be decisive of the case.

We are clearly of the opinion that plaintiff failed to make a case under the humanitarian doctrine. When, as is the case here, the record is utterly devoid of evidence as to defendant's speed, the distance within which he could have stopped his automobile, or the relative positions of the two machines at the moment when defendant could first be charged with actual or constructive notice of plaintiff's perilous position and of the danger...