Norris v. Winkler

• Decision Date: 04 April 1966
• Docket Number: No. 24314,24314
• Citation: 402 S.W.2d 24
• Parties: George S. NORRIS and Anna C. Norris, Respondents, v. Jean WINKLER, Appellant.
• Court: Missouri Court of Appeals

Page 24

402 S.W.2d 24

George S. NORRIS and Anna C. Norris, Respondents, v. Jean WINKLER, Appellant.

No. 24314.

Kansas City Court of Appeals, Missouri.

April 4, 1966.

Terence C. Porter, Welliver, Porter & Cleaveland, Columbia, for appellant.

John J. Frank, Hullverson, Richardson & Hullverson, St. Louis, Falzone & Falzone, Moberly, Corinne Richardson, St. Louis, of counsel, for respondent.

HOWARD, Judge.

This case grows out of a collision at an uncontrolled intersection which occurred on June 10, 1963, in Moberly, Missouri. A jury trial resulted in verdict and judgment for the plaintiffs in the amount of $5,050.00. Defendant has duly appealed to this court. We shall refer to the parties as they appeared below. When we refer to plaintiff in the singular we mean Mr. Norris.

Prior to the collision the plaintiffs, Mr. and Mrs. George S. Norris, were driving south on Alt Street and the defendant Mrs. Jean Winkler, with her children, was driving west on Carpenter Street. Mr. Norris testifed that he was traveling 15 to 20 miles an hour, 'give or take a mile or two'. He testified that when he was 4o to 45 feet back from the intersection, or '40 some odd feet' back, he looked to his left, but that his view was obstructed by some bushes, a tree and a utility pole and he did not see any traffic coming from his left. He again looked to his left when he was 25 to 30, or 20 to 30, feet from the intersection, that his view was not obstructed at that time, that he saw approximately 60 feet to the east on Carpenter Street and that he did not see any oncoming traffic. He stated that he proceeded across the intersection at a speed 'not in excess of 15 miles per hour and under 20'. He glanced to his left, out of the corner of his eye, just before the impact, but did not see defendant's car. He stated that at the time of impact his speed was 15 miles per hour 'give or take a mile or two'.

Mrs. Norris corroborated her husband's testimony and stated that she looked to her left when she was 20 to 25 feet from the intersection and did not see any cars approaching from her left. When the front of plaintiffs' car was just past the middle of the intersection, plaintiff stated 'I was hit a terrific impact'. Plaintiffs' car was knocked up over the curb, across the parking and the sidewalk and into a yard and almost against a house. Mr. Norris was thrown partly out of the car and dragged along until it came to a stop. He suffered a broken pelvis, and some minor abrasions. He was taken to the hospital in Moberly and was later transferred to the Wabash Employees' Hospital in Decatur, Illinois.

Neither Mr. Norris nor his wife saw defendant's car prior to the collision. Defendant testifed that she was traveling, 'I will say 15 to 20 miles per hour'. That she did not see plaintiffs' car until she was 3 feet from the east curb line of Alt Street, and at that time plaintiffs' car was one car length back from the north curb line of Carpenter Street. Defendant attempted to put on her brakes and swerve to her left, but could not avoid the collision. She said that 'Plaintiff shot right in front of me' increasing his speed. Defendant told the investigating police officer that she was going 20 miles per hour at the time of the collision. The police place the point of impact as being 13 feet 4 inches south of the north curb line of Carpenter Street and 12 feet west of the east curb line of Alt Street. From the testimony and the exhibits, it appears that the right front corner of defendant's car struck the left front fender of plaintiff's car, at a point approximately even with the rear of the left front wheel. Additional facts will be set forth as needed in the opinion.

On this appeal defendant first complains that the trial court erred in failing to sustain her motion for a directed verdict and overruling her after trial motion to set aside the verdict and judgment for the plaintiffs and enter judgment for the defendant because (1) 'the plaintiff was guilty of contributory negligence as a matter of law' and (2) 'plaintiffs did not make a submissible case of humanitarian negligence'. Defendant's point one does not further elaborate. She does not give any reason why plaintiffs were contributorily negligent as a matter of law and does not tell us in what manner plaintiffs failed to make a submissible case of humanitarian negligence. The motions filed in the trial court are no more illuminating. They simply contain the same conclusions.

Plaintiffs contend that this point one of defendant's brief is insufficient to present anything for review. This contention is well taken. Defendant has failed to comply with the requirements of Civil Rule 83.05, V.A.M.R. The discussion in Myers v. Karchmer, Mo., 313 S.W.2d 697 is peculiarly appropriate to the case at bar. However, as in that case, we will consider the merits of defendant's contentions.

From a careful reading of the argument contained in defendant's brief, we are able to discover that she contends that plaintiffs were contributorily negligent as a matter of law (1) in failing to maintain a lookout and failing to see what was plainly visible, and (2) in entering the intersection without stopping. Defendant bases her argument on the assumption that the two cars were both proceeding at the same speed of 15 miles per hour. Thus when plaintiff looked to his left, defendant's car was plainly visible and he was contributorily negligent as a matter of law either because he did not look when he said he did, or if he looked, he did not see what was plainly visible. In this argument defendant fails to consider the requirement that we give plaintiff the benefit of a consideration of the facts most favorable to the plaintiff and ignore evidence of the defendant, except as it may benefit plaintiff. When we consider the facts in this light, we see that when plaintiff was between 20 and 30 feet from the intersection he looked to his left and could see at least 60 feet east on Carpenter Street from where he was sitting, and did not see defendant. From this we can infer that defendant was more than 60 feet from the center of the intersection at this time. Plaintiff testified that he was going approximately 15 miles per hour, with a spread in his estimate of speed from 13 to 22 miles per hour. Plaintiff did not give any evidence of the speed of defendant's car, because he did not see it prior to the collision. Defendant testified that she was going 15 to 20 miles per hour; she told the police officer she was going 20 miles per hour. Plaintiffs are not bound by this testimony. Plaintiffs' evidence was that when defendant's car struck their car there was a 'terrific impact' and it appears to be undisputed that the force of the impact knocked plaintiffs' car up over the curb, across what appears from the exhibits to be an abnormally wide parking, and across the sidewalk, into a yard and almost into the house on the corner. From this evidence the jury could well have found that defendant's speed was considerably in excesss of 20 miles per hour. The plaintiffs are not bound by defendant's evidence that she was only going 15 miles per hour.

Defendant cites only one case on this issue and that is Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. Defendant's brief contains a purported quotation from this case but it is inaccurate and places language in juxtaposition, which in the opinion is separated by a great amount of other reasoning, so that the context of the language as quoted, is not the same as that in which such language was used in the opinion. This cited case does not rule the point as it is presented in the case at bar. In our case the jury could well find that when the plaintiff first looked to his left he could not see east on Carpenter Street because his view was obstructed; that he again looked to his left when 20 to 30 feet from the intersection, and at that time, could and did see to the east on Carpenter Street at least a distance of 60 feet, and that defendant was not in view but was further back on Carpenter Street. It is in evidence that plaintiff's view to the right or west on Carpenter Street was blocked by a hedge, some trees, a house etc., and that such situation required more than normal observation in the exercise of the required degree of care.

It is true that a motorist is required to keep a careful lookout, but he must look both to his right and to his left and forward (and in some cases also behind him). He can not look in one direction all the time, and neither is he required to keep his head in constant swinging motion from side to side. See Slaughter v. Myers, Mo., 335 S.W.2d 50, Burke v. Renick, Mo.App., 249 S.W.2d 513.

Here the plaintiff looked to his left when he was 20 to 30 feet from the intersection and did not see defendant. We can not say as a matter of law that defendant's car was within this 60 feet and therefore in plain sight when plaintiff looked. There is no evidence as to the location of defendant's car at that time, and we can not say that defendant's car, wherever it may have been, was plainly visible. Plaintiff then looked to his right while proceeding on into the intersection. There is no evidence at what point plaintiff could have seen defendant's car, if he had looked again. But as plaintiff continued forward into the intersection, he very soon reached a point where he could no longer stop short of the path of defendant's car and thereby avoid the accident. If he had looked after he had reached that point it would have done no good. Thus, even if we assume he was negligent in not looking again, we can not say as a matter of law that looking would have enabled him to have avoided the accident. Such negligence, if any, occurring after it was too late to avoid the collision would not be a proximate cause of the collision and damage.

In this case we must remember that under the ordinance of the City of Moberly, which was in evidence, if plaintiff entered the...