Price v. Nicholson, 47765
| Decision Date | 14 November 1960 |
| Docket Number | No. 47765,47765 |
| Citation | 95 A.L.R.2d 599,340 S.W.2d 1 |
| Parties | William H. PRICE, Respondent, v. James NICHOLSON, Appellant. |
| Court | Missouri Supreme Court |
Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
Coleman, Gerhard, Padberg, Montrey, Maloney & Cekovsky, Clayton, for respondent.
This is an appeal by James Nicholson, defendant-appellant, from a judgment of the Circuit Court of St. Francois County in the sum of $15,000 in favor of plaintiff-respondent, William H. Price, for personal injuries arising out of the collision of two automobiles.
The notice of appeal was filed in the circuit court on July 9, 1959, and this court has appellate jurisdiction. Section 477.040 RSMo 1949, V.A.M.A.
Defendant contends (1) that the humanitarian doctrine is not available to plaintiff as guest-passenger against his host-driver; (2) that plaintiff's Instructions Nos. 1 and 6 contain error and (3) that the verdict is excessive.
Plaintiff's petition alleged that on January 9, 1957, plaintiff was injured as the result of a collision between an automobile operated southbound on Highway 67 by his host-driver, James Nicholson, and an automobile operated eastbound on Highway 110 by Clifton Kirkpatrick at the intersection of those two highways near Festus. The petition, among other things, charged host-driver, Nicholson, with primary negligence (concurring with the negligence of Kirkpatrick) in driving the automobile at a high, dangerous and excessive rate of speed under the circumstances, in failing to stop, slacken the speed or swerve so as to avoid striking the Kirkpatrick automobile; and in failing to drive the automobile as close as practicable to the right-hand side of the highway. The petition also charged humanitarian negligence against the hostdriver, Nicholson, in failing to stop the vehicle, slacken its speed, swerve, or give a warning, after Nicholson saw plaintiff and the vehicle driven by Kirkpatrick in a position of imminent peril of being struck by Nicholson's automobile and injuring plaintiff.
As to defendant Kirkpatrick the petition alleged primary negligence in failing to keep a proper lookout ahead and laterally, in failing to stop at the stop sign at the intersection, in failing to yield the right of way, in failing to slacken speed or swerve so as to avoid the collision, and, also, humanitarian negligence.
The separate answer of Nicholson was in the form of a general denial. Kirkpatrick's separate answer included a general denial, a plea of joint enterprise between plaintiff and Nicholson and allegations of contributory negligence against plaintiff by reason of joint enterprise and alleged negligence of Nicholson. After filing the answer, the attorney for Kirkpatrick withdrew, and neither Kirkpatrick nor any attorney on his behalf thereafter participated in the trial. Nor has any appeal been filed on behalf of Kirkpatrick.
At the jury trial defendant Nicholson adduced evidence to the following effect: On January 9, 1957, plaintiff and defendant had been working together in St. Louis. Because it commenced to rain, work was terminated about 10:30 a. m., and they started back to Farmington, their residence, in defendant's 1956 Studebaker automobile. It was misting rain, the pavements were wet and the windshield wipers of defendant's car were operating. Visibility was very good. Plaintiff was in the right front seat of the automobile. They proceeded south on U. S. Highway 67 from St. Louis, through Festus, to the scene of the collision.
At the scene of the collision U. S. Highway 67 runs in a generally north-south direction. It is a four-lane highway consisting of two lanes for southbound traffic and two lanes for northbound traffic separated by a dividing strip of grass. North of the intersection U. S. Highway 67 has a gradual curve to the left as one proceeds south. The entrance, from U. S. Highway 67 to Highway 110, is situated on the western side of Highway 67, goes off in a 'prong' fashion, and is some distance south of the mentioned gradual curve. The eastbound exit of Highway 110 is situated at the western edge of Highway 67, is 519 feet south of the mentioned entrance, and intersects Highway 67 at a right angle. The two southbound lanes of Highway 67 total twenty-four feet in width, and have a hard dirt with a gravel shoulder on the western side of 14 feet width. There is a 'stop sign' and also a 'yield right-of-way' sign for eastbound traffic at the exit of Highway 110.
Defendant was driving in the outside (westernmost) lane at approximately 35 miles per hour. As defendant's car rounded the mentioned curve, plaintiff from his front seat position could see the intersection of Highway 110. There were no other automobiles in sight in any direction other than Kirkpatrick's Dodge.
At this point we refer directly to plaintiff's testimony for his version as to what occurred. Plaintiff then saw the Kirkpatrick Dodge car on 110 at 67. Its bumper was right at the edge of the pavement of 67--possibly half a car's length from that pavement. It was rolling easterly very slowly. He continued to watch it until the collision occurred. It just stayed moving slow and steady, too slow to estimate, and never stopped. 'About where that prong that goes into DeSoto, that northbound lane you're talking about, he [Mr. Nicholson] went into the inside [left] lane of 67.' At that time Mr. Nicholson slowed down momentarily to about 30 and then put his foot back on the gas. The Dodge car at that time had reached the center of the two southbound lanes on 67. The middle of the Dodge was at the center line. I hollered, 'Look out for that car.' Nicholson's car was then about 200 feet from the Kirkpatrick automobile and was travelling at a speed of about 35 miles per hour. Nicholson jammed the brakes on before the collision. Nicholson's car was as far to the left as he could go without getting off the pavement. 'We just kept going until we crashed into him.' The front end of the Nicholson car hit the side of the Dodge on that inside lane of 67. As a result of the impact of the two cars, plaintiff was thrown against and partly through the windshield and severely injured. Plaintiff did not hear anyone sound a horn.
We next note defendant's version of the occurrence commencing with when his car rounded the mentioned curve. When he first saw the Dodge on 110 he believed it was stopped. Its front wheels were 'pretty close to' and might have been on the edge of Highway 67. Defendant saw the Dodge right after he got out of that curve. Defendant 'guessed' he was 100 feet or so away from the Dodge at that time. Defendant was travelling in the outside southbound lane. His windshield wipers were on and he had a clear view. He continued to watch the Dodge until the impact occurred. He sounded his horn. He was travelling 30 to 35 miles per hour. He put on his brakes, slowed down 5 to 10 miles an hour slower. When about six or seven car lengths away from the Dodge (18 or 20 feet being a car length), he changed position from one side of the highway to the other. He was three or four car lengths away, he guessed, from the Dodge when the Dodge's front wheels crossed into the inside lane. --when 'two or three car lengths, or four car lengths away.' Defendant's car front hit the Dodge's front right fender. The accident occurred with defendant's car on the left portion of the inside lane--'right on the edge of the highway.' His car brakes were in good working condition and he had new tires. Under the existing conditions he could stop his car 'in sixty or seventy-five feet.'
On the witness stand defendant's version differed somewhat from that given in his deposition as shown in evidence. He stated he first saw the Dodge when he was coming out of the curve and when it was about 100 feet away. He thought it was stopped. He honked his horn while about three or four car lengths away and went into the inside lane while still three or four car lengths away. The Dodge --'about seventy-five, eighty' feet away. --'about two left tires got off' the left pavement.
In determining whether the trial court erred in ruling that plaintiff had made a submissible jury case under the humanitarian doctrine this court, on appeal by defendant, in reviewing the evidence must take as true every fact and circumstance favorable to plaintiff which the evidence tends to prove, and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. Plaintiff is accorded the benefit of any part of defendant's evidence favorable to him and not contradicted by plaintiff's own testimony nor contrary to plaintif...
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