Perry v. Dever
| Decision Date | 13 May 1957 |
| Docket Number | No. 45499,No. 2,45499,2 |
| Citation | 303 S.W.2d 1 |
| Parties | Alice Irene PERRY, Appellant, v. Glenn A. DEVER, Respondent |
| Court | Missouri Supreme Court |
Robert G. Oberlander, Irving Kuraner, Kuraner, Freeman, Kuraner & Oberlander Kansas City, Charles A. Powell, Jr., Macon, for plaintiff-appellant.
Hess & Collins, Macon, for defendant-respondent.
BOHLING, Commissioner.
Action by Alice I. Perry against Glenn A. Dever for $15,000 for the alleged wrongful death of Arthur E. Perry, plaintiff's husband, as the result of being struck by defendant's automobile. The court sustained defendant's motion for a directed verdict filed at the close of plaintiff's case. Section 510.280 RSMo 1949, V.A.M.S. Plaintiff appealed and contends she made a submissible case on defendant's duty to have stopped, slowed or swerved his automobile or sounded a timely warning under the humanitarian doctrine.
The accident occurred about 11:25 a. m., April 19, 1954, on Highway 36 in Linn county, Missouri, approximately a mile west of the Marceline Junction. The day was nice. The sun was shining. The pavement was dry.
Kenneth Tumlin and Arthur Perry, linemen for the Macon Electric Co-operative of Macon, Missouri, were extending a service line to a house under construction approximately 450 feet north of Highway 36.
Highway 36 is an east-west two-lane blacktop surfaced road, the pavement being 22 feet in width. A small graded road or lane, which was 38 feet wide 10 feet north of the pavement, extended northwardly to the house, and 21 feet east of this lane a gravel road extended southwardly. A 40-foot power line pole was 40 to 50 feet south of the pavement at the west side of the gravel road, and a service pole was 50 to 60 feet north of the pavement at the east edge of the lane. A culvert was 13 feet east of the edge of the lane and a second culvert was 102 feet farther east.
Defendant was traveling west. There was no eastbound traffic at the time. Westbound traffic comes over the crest of a hill some distance (not established and immaterial here) east of the scene of the accident, then enters a dip where passenger cars pass out of sight for a short distance on Highway 36, then comes over a lower crest and proceeds 'slightly' downgrade for a distance and then, from the photographs, over a slight upgrade to the scene of the accident. This nearest crest is .2 of a mile (1056 feet) east of the lane to the house.
Tumlin and Perry, after measuring the length of the wire to be used, hand coiled it, and placed it 2 to 5 feet north of the north edge of the pavement of No. 36. The line had to cross No. 36. The men went to the house and secured Raymond Bodurtha to flag for them. The three returned to the wire in the lane. Tumlin proceeded to and climbed the pole south of No. 36. He was on the north side, facing south. Tumlin warned Perry, stating they always did so when crossing a pavement, to 'Watch those cars,' or 'Be sure and watch them cars,' referring to cars generally, when Tumlin started to cross the highway and again as he mounted the pole. Perry and Bodurtha were standing 2 to 5 feet north of the pavement.
Bodurtha testified that Perry was about the center of the lane, working with the wire, which was 'more or less coiled up and sort of tangled' and he was 4 or 5 feet east of Perry. Three cars were approaching from the east. Bodurtha told Perry 'We will let these cars pass--we will flag the rest of them'; and with that Bodurtha started walking east on the north shoulder. Perry was still working with the wire, preparing to go across the highway. He had one end of the wire in his hand and was moving south toward the pavement. Bodurtha carried the flag, unrolled, in his right hand down by his side. He watched the westbound cars, two of which were running close together, and the third car (defendant's) was approximately one-fourth mile back of the second car. The first two cars passed Bodurtha when he was about even with the first culvert, 13 feet east of the lane, and defendant's car was then 'part-way down the road.'
Tumlin, on the pole south of the highway, looked over his shoulder to the right as the two cars passed. He saw Perry start walking out onto the pavement as soon as the second car passed. Perry took more than one step, moved to 2 or 3 feet out on the pavement, and seemed to be tugging on the wire. Perry was looking and headed southwest as he walked out on the pavement. Tumlin stated he continued with his work; that they carry eye nuts in a pouch on the back of their belts; that he was screwing an eye nut on a 5/8ths bolt, which does not take too long. In the matter of a second or two he heard tires 'screech,' and immediately looked back over his right shoulder and saw defendant's car strike Perry.
Bodurtha testified that in his best judgment he walked approximately half the distance between the first and second culverts (that is, 51 feet) when defendant's car passed him. He turned and saw defendant's car strike Perry.
Tumlin and Bodurtha each testified he did not hear any horn.
Tumlin stated that Perry was hit by the bumper and right front fender, and his head struck the 'channel iron,' the little eave where the water runs off the top of the windshield. He thought Perry was 2 to 3 feet out on the pavement when struck, and on cross-examination said it 'could have been five--from two to five feet, roughly.' Bodurtha's best judgment was that Perry was about 1 1/2 feet out on the pavement when struck. After the accident Perry was about the center of the lane and 18 inches to 2 feet north of the pavement.
Defendant parked his car on the north shoulder of No. 36. It had a dent on the right front of the hood. The wire was lying in the lane north of the pavement, as if it had been in a coil and then pulled out.
Defendant's car left skid marks on the north half of the highway. The first skid marks started 68 feet east of and stopped about the center of the lane. Then there was a break of approximately 4 to 5 feet, and the skid marks continued on for another 25 or 26 feet, on overall length of 98 feet. The skid marks were in a straight line. They angled slightly, probably a foot, toward the center line, being 2 or 3 feet north of the center line at the center of the lane.
Plaintiff had the affirmative and the burden on the issue of defendant's actionable negligence under the humaritarian doctrine. However, the evidence and all reasonable inferences therefrom, viewed in the light most favorable to plaintiff, are for consideration on appeal from a judgment entered on a directed verdict at the close of plaintiff's case. See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15, 17; Danzo v. Humfeld, Mo., 180 S.W.2d 722; Bohle v. Sternfels, Mo., 261 S.W.2d 936, 941.
Walter Snider, of the State Highway Patrol, testified:
And as to how Perry got out on the pavement in front of him, 'The statement he [defendant] gave me was: 'As I approached I saw two men alongside of the road and assumed they were waiting for traffic to pass, and within eighty feet he started in front of me, and I set the brakes and he saw me at that time and threw himself back.''
Defendant construes his statement to the patrolman to establish a speed of 50 m. p. h. at the time of impact and says there is no showing of his speed prior to his application of the brakes. The latter portion of the witness' answer could refer to defendant's speed just prior to his effort to prevent the accident. Neither Tumlin nor Bodurtha estimated defendant's speed. However, other testimony bears on the issue. Bodurtha's statement that defendant was approximately one-fourth of a mile back of the second car was an estimate. The patrolman stated he measured the distance from the scene of the accident to the first crest to the east and it was 'just a little over two-tenths of a mile.' Bodurtha stated that when he started east from the first culvert defendant's car had 'come partway down the road.' A finding that defendant's car was about .2 of a mile from the collision when Bodurtha left the first culvert and that he walked approximately 51 feet while defendant was traveling the .2 of a mile could be had without prejudice to defendant. We have taken judicial notice that the ordinary walking speed of the average man is between 4.4 and 2.9 feet per second. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 635. Based thereon, Bodurtha walked the 51 feet in approximately 11.6 to 17.6 seconds while defendant's car traveled approximately 1056 feet. Defendant was traveling between 91 and 60 feet per second, or approximately from 62 to 41 miles an hour.
An important fact issue concerns Perry's obliviousness to the situation. Defendant says speculation, guess and conjecture has to be indulged to find that Perry was actually oblivious, the point at which his actual obliviousness became reasonably apparent, and that defendant had notice, actual or constructive, thereof.
We agree with defendant's authorities that evidence which is merely guess, speculation or conjecture is insufficient to establish where the position of imminent peril begins, Paydon v. Globus, Mo., 262 S.W.2d 601, 603; that a likelihood or a bare possibility of injury is not sufficient to create imminent peril, Paydon v. Globus, supra; West v. St. Louis-S. F. R. Co., Mo., 295 S.W.2d 48, 51; and that defendant may assume plaintiff is paying reasonable attention to his surroundings until plaintiff evidences some reasonable appearance of obliviousness, and defendant is only chargeable with plaintiff's obliviousness if he knew or had constructive notice thereof. Knorp v. Thompson, 352 Mo....
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