Riley v. Young
| Decision Date | 15 March 1949 |
| Docket Number | No. 27486.,27486. |
| Citation | 218 S.W.2d 805 |
| Parties | RILEY v. YOUNG et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Theodore Bruere, Judge.
"Not to be reported in State Reports."
Personal injury action by Raymond E. Riley against J. T. Young and others. From a judgment for the defendants, the plaintiff appeals.
Affirmed.
Long & McIlroy, of Bowling Green, and F. D. Wilkins, of Louisiana, for appellant.
James D. Clemens, of Bowling Green, for respondents.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff, Raymond E. Riley, when his automobile ran into the side of an automobile which was owned by defendant J. T. Young, and was being driven at the time by the latter's son, J. T. Young, Jr.
Tried to a jury, a verdict was returned in favor of defendants. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, plaintiff gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
The collision occurred within the city limits of Bowling Green, Missouri, at a point on U. S. Highway No. 61 about 75 feet south of its intersection with Centennial Avenue in said city.
The highway runs north and south through the city, and on either side of it are various types of commercial buildings and enterprises, including the Moon Winx Service Station, which is located on the west side of the highway immediately opposite the point of the accident. A restaurant known as Shaon's Cafe is operated in connection with the service station, and the buildings and pumps sit back a considerable distance from the highway, leaving an open area at the front of the grounds which is used as a parking place for customers' automobiles. At appropriate intervals along the curb line driveways have been constructed through which vehicles are driven in entering or leaving the station grounds while passing to or from the highway, which is a busily traveled thoroughfare.
The accident happened about 9:00 or 9:30 o'clock on the night of May 16, 1946.
Earlier in the evening the Youngs had attended the commencement exercises of the Bowling Green High School from which one of their daughters was graduating. At the conclusion of the exercises the party, consisting of Young, his wife, a son, and two daughters, had driven to Shaon's Cafe for refreshments, and upon leaving the restaurant had entered their automobile to start their trip home. The son, J. T. Young, Jr., took his place behind the wheel, with his father in the seat beside him, while the mother and the two daughters occupied the seat in the rear.
According to defendants' evidence, the son drove the car out to the curb or shoulder, which was about 8 or 10 feet from the edge of the pavement, stopped the car, and looked to the north, in which direction he had a clear view for possibly 130 feet to a point where the highway curves to the left some distance north of Centennial Avenue. Seeing nothing on the highway to impede his progress, he started up and pulled out upon the pavement, whereupon he glanced again to the north and observed the lights of plaintiff's approaching automobile as it came into view around the curve. At this time the front of his car was about even with the center line of the highway. When he first saw plaintiff's car he was going about 7 or 8 miles an hour, but on discovering its approach he stepped on the accelerator and had reached the east edge of the highway, or just beyond, when plaintiff crashed into him, the left front portion of plaintiff's car striking his own car at a point about 6 inches back of the door, and caving in the remainder of the rear of the car. The son's best estimate of the speed of plaintiff's car was 50 or 60 miles an hour.
Plaintiff's testimony, on the other hand, was that his speed approaching the point of the accident was only 25 miles an hour. He had noticed that there were a large number of cars parked along the highway as well as on the filling station grounds. According to his version of the facts, as he got in front of the filling station, defendants' car suddenly pulled out on the edge of the highway no more than 20 or 25 feet in front of his own car. He immediately applied his brakes, but was unable to stop short of a collision, although he skidded his wheels for the last 7 or 8 feet before the moment of impact.
Plaintiff's case was pleaded and submitted upon the theory of defendants' negligence, first, in driving their automobile onto the highway into a line of moving vehicles when the highway was not sufficiently free from approaching vehicles to permit their automobile to enter the line of moving vehicles without danger of collision; in failing to give a warning of their intention to enter the line of moving vehicles; and in failing to proceed carefully by yielding the right of way to vehicles already in motion on the highway. The above was of course a charge of the violation of a duty imposed by statute; and as a second basis of recovery the same acts and omissions on defendants' part were submitted as a ground of common law negligence with respect to defendants' alleged nonobservance of the obligations imposed upon them by reason of the approach of plaintiff's own automobile.
The answer was a general denial, coupled with a plea of contributory negligence.
Defendants prevailed, as has already been indicated; and the whole controversy on this appeal is whether the judgment may be allowed to stand in the face of errors charged in connection with the giving of three instructions for defendants upon the issue of plaintiff's contributory negligence.
The instruction first challenged is instruction D-3, which reads as follows:
It will be noted that the instruction is divided into two paragraphs, the first directing the jury in regard to certain abstract principles applicable to the operation of an automobile upon a highway, and the second calling for the application of such principles to the facts of the case as the jury might find the facts to be.
Plaintiff complains of the charge in the first paragraph of the instruction that it is the duty of the driver of a motor vehicle to maintain a "constant" lookout while his vehicle is in motion. While recognizing the duty to keep a lookout, plaintiff argues that such duty is not constant or invariable; and he insists that the instruction was therefore erroneous in imposing a greater duty upon him than that which the law itself exacts.
There is no doubt of the duty of the operator of a motor vehicle to keep a careful or vigilant watch ahead for other persons or vehicles on the highway; and for a motorist to fulfill this duty he must look in such an observant manner as to enable him to see and discover such conditions as one in the exercise of the highest degree of care for the safety of himself and others would be expected to see under like or similar circumstances. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Brown v. Toedebush Transfer, 354 Mo. 611, 190 S.W.2d 239; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Rohmann v. City of Richmond Heights, Mo.App., 135 S.W.2d 378. Such duty, being fixed, uniform, and continuous, is in that sense constant; and if a motorist, having the duty to look, fails to see what is plainly visible, he is guilty of negligence and liable for its consequences. Wright v. Osborn, supra; Rohmann v. City of...
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