Redden v. Boehmer

Decision Date20 September 1949
Docket NumberNo. 27642.,27642.
Citation223 S.W.2d 127
PartiesREDDEN v. BOEHMER.
CourtMissouri Court of Appeals

This is an action for damages for personal injuries sustained by plaintiff, Alma Redden, when she was struck by an automobile owned and operated by defendant, Adolph Boehmer.

The accident happened in the early evening of December 18, 1946, at a point on the public highway which runs through the village of Rich Fountain, in Osage County, Missouri.

Upon a trial to the court alone without the aid of a jury, the court rendered judgment in favor of plaintiff, and against defendant, for the sum of $2,000. Following an unavailing motion to set aside the judgment or, in the alternative, to grant him a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

In her petition plaintiff charged defendant with four specifications of primary negligence along with negligence under the humanitarian doctrine.

The assignments of primary negligence were, first, that defendant permitted his automobile to swerve and be driven across the footpath upon which plaintiff was allegedly walking; second, that he operated his automobile at a dangerous rate of speed under the circumstances; third, that he failed to keep a reasonably sufficient lookout; and fourth, that he failed to operate his automobile with proper headlights.

The assignment under the humanitarian doctrine was the conventional charge that defendant saw, or by the exercise of due care and caution could have seen, plaintiff in a position of imminent peril and danger of being struck and injured by his automobile in time thereafter, with the means and appliances at hand, and with safety to himself, to have stopped his automobile, turned the same aside, or slackened its speed, and thus have avoided colliding with plaintiff, but carelessly and negligently failed to do so.

The answer was a general denial of each separate charge of negligence, coupled with a plea of contributory negligence on plaintiff's part in allegedly moving over into the path of defendant's automobile when it was too late for him to avoid a collision.

Coming down a hill to the west of the village, the highway on which the parties were traveling runs directly through the village to the east. The highway proper is blacktop 20 feet in width, with level gravel shoulders on either side.

The accident happened around 6:30 o'clock in the evening, which is dark at the particular season of the year. Plaintiff and her husband were walking westwardly at the edge of the blacktop on the north side of the road on their way to a birthday party at the home of one Ben Dressel, who lived to the west of the village. Passing a cafe, the husband stopped in to purchase some cigarettes, while plaintiff walked on alone until her husband might overtake her.

An eastbound school bus driven by one Edwards came down the hill into the village and was stopped and parked in front of a store on the south side of the highway. Following some 400 or 500 feet to the rear of the bus was defendant's automobile, a 1929 Whippet. As Edwards pulled his bus to the side of the road, he glanced in his rear vision mirror and saw the reflection of defendant's lights behind him. There is no question but that defendant was driving slowly, and it was shortly after he had overtaken and passed the bus that his car came in contact with plaintiff at some disputed place on the highway. After striking plaintiff, defendant pulled off and parked on the north side of the highway about 40 or 50 feet beyond the point of the collision, and then came back to render whatever assistance he could in seeing that plaintiff received proper medical attention.

The case was submitted on all the issues along with a request by defendant that the court, in some appropriate manner, indicate the ground for its decision. Laws Mo.1943, p. 388, sec. 114(b), Mo.R.S.A. § 847.114(b). The court thereupon announced that its finding would be in favor of plaintiff under the humanitarian doctrine; and the propriety of such decision is the chief point in controversy on this appeal.

Since the case was tried to the court alone without the aid of a jury, it is to be reviewed by this court upon both the law and the evidence as in suits of an equitable nature. Laws Mo.1943, p. 388, sec. 114(d), Mo.R.S.A. § 847.114(d). The question for our determination is therefore not merely one of whether the court's finding was supported by substantial evidence. On the contrary, it is our duty to make our own independent finding of the facts and reach our own conclusion as to where the weight of the evidence lies. Whatever findings the lower court may have made are in no sense binding upon us, although in matters where the evidence is conflicting and close we shall have due regard for the lower court's opportunity to judge the credibility of the witnesses.

Plaintiff and defendant were the only eyewitnesses of the accident, and plaintiff's own account of it was quite confusing and unsatisfactory.

According to plaintiff's testimony, she first saw defendant's approaching automobile when it was only 40 or 50 feet away from her, and observed that it was being driven on the north or wrong side of the road for an automobile proceeding eastwardly. However her husband testified that she had previously told him that she had seen the automobile coming down the hill at a point which he estimated as being more than 250 feet to the west. It will be recalled that plaintiff was walking along the north edge of the blacktop, and she testified that she stayed in that position until "just before and practically at the time of this accident" when "he swung over on my side, and when I thought he was coming over on my side, I tried to dodge him, and I was zig-zagging back and forth". She did not attempt to say how close defendant had come to her by the time he swung over towards her, but she later testified that she had assumed that he was going to stop and park to the north of the highway, and that it was then that she had "started on across the road". Nevertheless she insisted that she was still on the edge of the road when she was struck, and not in the center of the highway as the other evidence tended to disclose. For instance, her own witness Edwards, the driver of the school bus, testified that immediately upon hearing the noise of the accident he had come out of the store to lend his assistance, and that plaintiff "was just about as near the middle of the blacktop as she could be".

Defendant's account of the accident differed from that of plaintiff in many material respects.

Defendant testified that he had come down...

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12 cases
  • Petersen's Estate, In re, 45389
    • United States
    • United States State Supreme Court of Missouri
    • 12 d1 Novembro d1 1956
    ......535, 229 S.W.2d 546, 549; Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289; Redden v. Boehmer, Mo.App., 223 S.W.2d 127.         Before passing to other points, it will be ......
  • Hobbs v. Renick
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 27 d3 Junho d3 1962
    ......Walter Freund Bread Co., 1933, 332 Mo. 461, 58 S.W.2d 477, 479; Redden v. Boehmer, Mo.App., 1949, 223 S.W.2d 127. See also Saindon v. Lucero, 10 Cir., 1951, 187 F.2d 345, ......
  • Parks v. Thompson, 44712
    • United States
    • United States State Supreme Court of Missouri
    • 9 d1 Janeiro d1 1956
    ......4. Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290, quotes and applies the following from Redden v. Boehmer, Mo.App., 223 S.W.2d 127: "The question for our determination is therefore not merely ......
  • Venie v. South Central Enterprises, Inc.
    • United States
    • Court of Appeal of Missouri (US)
    • 22 d2 Março d2 1966
    ...... Cross v. Gimlin, Mo., 256 S.W.2d 812--813(2, 3); Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129(1, 2). On the other hand, where the evidence is ......
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