Nelson v. O'Leary
| Decision Date | 11 June 1956 |
| Docket Number | No. 1,No. 45081,45081,1 |
| Parties | Charles NELSON (Plaintiff), Respondent, v. Vincent M. O'LEARY (Defendant), Appellant |
| Court | Missouri Supreme Court |
John F. Evans, Evans & Dixon, St. Louis, for appellant.
Cleo V. Barnhart, St. Louis, for respondent.
VAN OSDOL, Commissioner.
In this action for personal injuries plaintiff had verdict and judgment for $10,000, and defendant has appealed.
Plaintiff, a pedestrian, was injured when he was struck by defendant's automobile near the intersection of Broadway and Keber Streets in St. Louis. Plaintiff's case was submitted to the jury by plaintiff's principal verdict-directing Instruction No. II, on negligence under the humanitarian rule.
Herein, defendant-appellant contends the trial court erred in overruling his motion for a directed verdict. It is argued the evidence was wholly insufficient to establish beyond speculation and conjecture that defendant in the exercise of the highest degree of care could have discovered plaintiff in a position of imminent peril in time thereafter to have avoided a collision. It is said that when plaintiff's peril was discoverable, the speed of defendant's automobile and the intervening distance left the barest possibility that a collision could have been avoided. Defendant-appellant further contends that the trial court erred in giving plaintiff's Instruction No. II, which submitted that defendant could have avoided a collision 'by either swerving his automobile to the right, or by slackening the speed of his said automobile and swerving said automobile to the right'; that the trial court erred in refusing defendant's Instruction D which would have withdrawn the issue of humanitarian negligence in failing to slacken speed; and that the trial court erred in giving plaintiff's Instruction No. V advising the jury that, if defendant's negligence directly contributed to the casualty, the fact that plaintiff's own conduct contributed to his injury was no defense. There are further contentions of error of the trial court in ruling on objections to the argument of counsel.
Approaching and passing the intersection of Broadway and Keber in St. Louis, the paved portion of Broadway, a north-south street, is forty-five feet wide. There is a white line in the center of the pavement. Keber, an east-west street, approaches and intersects Broadway at an angle from the eastward. Keber does not extend west of Broadway. There is a vacant lot southeast of the intersection. The building occupied by the St. Louis Screw & Bolt Company is located at the northeast corner of the intersection. The right of way of the St. Louis Public Service Company's streetcar line is immediately west of and parallel with the west line of Broadway, and to the west of the right of way of the streetcar line is Bellefontaine Cemetery.
There are street lights on the east side of Broadway at the intersection--one light on either side of Keber. There are also street lights at intervals of one hundred feet along the east side of Broadway. A covered manhole is located in Broadway six and one-half feet north of the northernmost curved portion of the curved curb at the northeast corner of the intersection. The manhole is fourteen and one-half feet west of the east curb--eight feet east of the center line of Broadway.
There was evidence introduced tending to show that plaintiff had been drinking since about three o'clock in the afternoon of April 9, 1954. At seven o'clock in the evening of that day he was in the vicinity of Delmar and Euclid, several miles from the intersection of Broadway and Keber where he was injured. He cannot explain his presence at Broadway and Keber, nor can he state the circumstances of his injury.
At approximately ten-thirty o'clock in the evening of April 9th, nightwatchmen on duty at the St. Louis Screw & Bolt Company's building came out of the basement at the rear of that building and proceeded westwardly along the north side of Keber. When they were about forty feet from the intersection, one of the watchmen observed a man 'kinda 'hooped' over.' The man (plaintiff) was standing still on the manhole in Broadway. He was looking toward the cemetery-- The other watchman said he saw plaintiff staggering northwardly near the east curb. 'He was bent over like he was looking down for something.' One of the watchmen started out into the street, but he was warned by the other watchman to stay on the sidewalk. Meanwhile, plaintiff had moved 'about out in the middle' of Broadway at a time when three (or more) northbound automobiles were approaching. Plaintiff was
At least three northbound automobiles had approached the intersection. The first was driven by one Bierman. (There was some evidence that another vehicle had preceded the Bierman car.) The Bierman automobile was moving in the 'outside lane, towards the curb.' The Bierman vehicle was followed by defendant, who was driving 'a little bit farther to the left.' The left side of defendant's automobile was aligned about one-half car width to the left of the alignment of the west (left) side of the Bierman car. The left side of defendant's car was 'in the neighborhood of four feet' from the white line, and was about four feet from the white line when defendant stopped his automobile after it had collided with plaintiff. Defendant's automobile was followed in turn by the automobile driven by one White. All three of these vehicles were moving twenty to twenty-five miles epr hour. Defendant's and White's cars were following the vehicles respectively preceding them at a distance of one and one half to two car lengths.
Bierman, in approaching the intersection, had been watching a pedestrian (other than plaintiff) walk from the center of the street toward the northeast corner of the intersection. Bierman testified that he did not see plaintiff until the Bierman automobile was four or five (or six) feet from plaintiff. Bierman swerved his car sharply to the right and passed plaintiff at a distance of about a foot and a half. White, whose automobile, as stated, had been following the defendant's car, saw plaintiff thrown with his body on a horizontal plane onto and along the side of defendant's car. Plaintiff fell on the pavement behind defendant's vehicle.
Defendant testified that he noticed the Bierman car swerving to the right, and 'just as I looked, there was a man hunched down, kinda running (eastwardly) towards the headlight.' Defendant also testified that the man (plaintiff) was six or seven feet from the front of defendant's car when defendant first discovered him. 'He was coming from the white line.' The left headlight of defendant's car struck plaintiff. 'He came in between the headlight and the middle of the machine.' On cross-examination defendant said he did not think he could have swerved to the right because the Bierman car was swerving in that direction, and because of a truck which defendant thought was moving northwardly about one hundred feet to his right rear. But, finally, defendant said, 'To tell you the truth, I didn't see the man in time to swerve.'
Defendant-appellant argues that the evidence which we have set out supra, considered from a standpoint most favorable to plaintiff, did not justify the submission of humanitarian negligence of defendant in failing to swerve, or to slacken speed and swerve. It is said that when plaintiff was first seen by Bierman, plaintiff was but a few feet, approximately six feet, in front of the Bierman car; that plaintiff was stooped over so that the upper part of his body could not have been visible above the Bierman car which swerved around plaintiff at a distance of only eighteen inches; that, obviously, plaintiff could not have been discovered by defendant until the Bierman car, about seventeen feet in length and swerving at an angle to the right, had moved the distance equal to its length, plus six feet, in passing plaintiff; and that, during the stated movement of the Bierman car, defendant had likewise traveled the distance of twenty-three feet, so that defendant, when he first could have seen plaintiff was but one and a half car lengths, twenty-five and a half feet, away.
From these and other premises, taking into account the testimony as to probable minimum and maximum speed (twenty to twenty-five miles per hour) and distances (one and a half to two car lengths), defendant-appellant undertakes to demonstrate mathematically that, allowing three quarters of a second for reaction time, defendant could not have acted in an endeavor to avert the casualty until he was but three to six feet or from one tenth to one third of a second away from the point of collision. However, we shall not here set out our analyses of these arguments because we believe defendant-appellant has failed to notice substantial evidence tending to show that defendant, had he been looking, could have discovered plaintiff was in imminent peril at the time defendant came to the point where he had a view of the area illuminated by the street lights at the intersection. Defendant-appellant has cited cases wherein oblivious plaintiffs have come suddenly into imminent peril, or wherein plaintiffs were not oblivious and, consequently, the zones of imminent peril were very narrow. In those cases the evidence introduced was insufficient to support reasonable conclusions that defendant, after plaintiffs were in imminent peril, could have avoided injuring plaintiffs. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Thomas v. Aines Farm Dairy, Mo.App., 257 S.W.2d 228.
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