Pieper v. Lewis, 30103
| Citation | 321 S.W.2d 4 |
| Decision Date | 17 February 1959 |
| Docket Number | No. 30103,30103 |
| Parties | C. Edward PIEPER (Plaintiff), Respondent, v. Annette LEWIS, Administratrix of the Estate of Edwin Lewis, Deceased, (Defendant), Appellant. |
| Court | Court of Appeal of Missouri (US) |
Walter Wehrle and Thomas Wehrle, Clayton, for appellant.
R. C. Reis, St. Louis, for respondent.
DOERNER, Commissioner.
This action was instituted by plaintiff to recover damages resulting from a collision between his automobile and that of the deceased, Edwin Eugene Lewis, which occurred at the intersection of Clarkson Road and Clayton Road in St. Louis County, Missouri, on September 17, 1955, at what plaintiff gave as 6:45 p.m., Daylight Saving Time. Plaintiff's petition was in two counts. In Count I, he sought damages of $25,000 for the death of his wife; and in Count II, damages of $7,500 for his own personal injuries, medical and hospital expenses, and the depreciation of his car. The trial resulted in a verdict and judgment for the plaintiff of $5,000 on Count I and $2,500 on Count II, from which defendant has duly appealed. Defendant is the duly appointed and acting Administratrix of the estate of Edward Eugene Lewis, but whether he died as a result of the accident, or subsequently from another cause, is not shown by the evidence.
The sole negligence pleaded and relied upon was under the humanitarian doctrine, in that the deceased knew or should have known that the plaintiff and his wife were in a position of imminent peril in time thereafter to have prevented their injury by giving a warning or by swerving deceased's vehicle to one side, and that deceased failed to warn or turn his vehicle to one side. Defendant contends that the trial court erred in overruling defendant's motions for a directed verdict at the close of plaintiff's case and again at the close of the whole case, and erred in overruling defendant's motion for judgment in accordance with defendant's motion for a directed verdict for two reasons: first, because plaintiff failed to make a submissible case under the humanitarian doctrine; and secondly, that having failed to make a case under the humanitarian doctrine defendant was guilty of contributory negligence as a matter of law. Under the view we take as to the first contention it will be unnecessary to consider the second.
Since defendant offered evidence after her motion at the close of plaintiff's case had been overruled she thereby waived whatever error, if any, the trial court may have committed by its ruling thereon. Hence only the ruling on defendant's motion at the close of the whole case is before us. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Wilt v. Waterfield, Mo.Sup., 273 S.W.2d 290; Altenderfer v. Harkins, Mo.App., 243 S.W.2d 558. And in considering whether plaintiff made a submissible case we view the evidence and the reasonable inferences therefrom in the light most favorable to the plaintiff. Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233.
As stated, the collision occurred at the intersection of Clarkson Road, which is Missouri Highway 340, and Clayton Road, or County Highway HH, on September 17, 1955. Clarkson, a concrete highway, runs in a general north and south direction. For most of its length Clarkson Road is a two-lane highway, but 300 feet both north and south of its intersection with Clayton Road turn-offs, or outside lanes, are provided so that for the stated distance north and south of the intersection it is four-lanes wide, each lane being 10 feet in width. Clayton, west of the west line of Clarkson, is a two-lane road, 19 feet wide, paved with macadam or black top. East of the east line of Clarkson, Clayton Road is four-lanes wide, the two center lanes being about in line with the two lanes of Clayton extending westwardly, and the two outside lanes being turn-off lanes. All are about 10 feet wide. Traffic moving eastwardly on Clayton Road towards Clarkson Road is controlled by a stop sign located on the south shoulder of Clayton Road, about 10 to 20 feet west of the west line of Clarkson Road. There are no stop signs for traffic traveling north or south on Clarkson. The intersection is level, but for an unspecified number of feet south of the intersection Clarkson Road slopes down grade, the exact degree not being stated in the record. There is testimony in the record that if one stood at the southwest corner of the intersection one was able to see southwardly on Clarkson Road a 'quarter of a mile or so.' At the time of the collision the sun was shining, the visibility was good, and the pavement was dry.
Plaintiff testified that he and his wife had visited a friend who lived west of Clarkson and south of Clayton. They left the home of their friend about 6:25 p. m., Daylight Saving Time. Driving his 1950 four-door Dodge sedan, with his wife in the front seat beside him, plaintiff reached and drove eastwardly on Clayton Road. He stated that he stopped for the stop sign at Clarkson Road, with the front end of his car five or six feet from the west edge of Clarkson; that he first looked to the north, that he could see a distance of approximately 300 feet, and that he saw no traffic approaching from that direction. That he then looked to the south, in which direction he could see only about 300 feet because of obstructions in the form of trees and brush; that he then started up in low gear, and may or may not have shifted in to second gear; that his estimate of his speed was 'somewhere between 5 and 10 miles an hour,' picking up speed and accelerating slightly; that at no time after he started up from the stop did he again look to the north or south, nor did he ever see the deceased's car; that when he was east of the center line of Clarkson Road he caught a fleeting glimpse of something to his right; that he started to accelerate his car and turned a little bit to his left; that his car was struck almost immediately on the right side, and the next thing he knew he was picking himself up off of the apron of the road. Plaintiff also testified that he never heard any warning or horn sound. The testimony of plaintiff was that after the collision his car came to rest on the north shoulder of Clayton Road, headed east, and that the deceased's car was approximately twenty feet east of his car, on Clayton Road, also facing east.
On cross-examination plaintiff stated that he did not know in what distance he could stop his car going at either five or ten miles per hour; that his car was equipped with four-wheel hydraulic brakes which were in good working condition; and that his eyesight was good.
Plaintiff's witness, Bob Williams, Jr., a St. Louis County police officer, testified that when he reached the scene about ten minutes after receiving a call at 6:40 p. m., Daylight Saving Time, the front end of plaintiff's car was against a utility pole located on the northeast corner of the intersection, facing east; that three or four feet of the car were off the pavement, east of the east edge of Clarkson Road, and the rest on the pavement. And further, that the deceased's car was facing east, partially on the north shoulder of Clayton Road and partially on the pavement, about ten feet east of the east edge of Clarkson Road. The officer also testified that there were glass and...
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