Robinson v. Richardson, 34220

CourtCourt of Appeal of Missouri (US)
Citation484 S.W.2d 27
Docket NumberNo. 34220,34220
PartiesTheophia ROBINSON, Administratrix of the Estate of Capitolia Proctor, Deceased, Plaintiff-Appellant, v. Marshall RICHARDSON, Defendant-Respondent. . Louis District, Division One
Decision Date01 August 1972

Eugene B. Weisman, Walter S. Berkman, Clayton, for plaintiff-appellant.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Paul S. Brown, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

Theophia Robinson, the daughter and sole heir of Capitolia Proctor, was appointed administratrix of her mother's estate and brought this action to recover damages of $25,000 for the wrongful death of her mother, claimed to have resulted from being struck by defendant's automobile. Trial to a jury culminated in a verdict and judgment for defendant, from which plaintiff appeals.

The only point presented here by plaintiff is that the trial court erred in giving, at the request of the defendant, Instruction No. 5, which withdrew from consideration by the jury plaintiff's evidence regarding the funeral expenses. Defendant, in addition to controverting that contention, maintains that plaintiff failed to make a submissible case on her disjunctively submitted assignments of humanitarian negligence in failing to warn or to swerve. If so, then of course the defendant's motion for a directed verdict at the close of all the evidence should have been sustained, and the error, if any, in giving Instruction No. 5 was immaterial and harmless. Brooks v. Stewart, Mo., 335 S.W.2d 104; Bello v. Stuever, Mo., 44 S.W.2d 619; Shepard v. Ford Motor Co., Mo.App., 457 S.W.2d 255. Accordingly, we direct our attention first to that contention of defendant's.

Plaintiff did not produce any eyewitness to the accident and her only evidence in her case in chief consisted of excerpts read from defendant's deposition. In defendant's case there was testimony from a police officer, the defendant, and his wife. The evidence favorable to plaintiff is that on the night of March 15, 1969, Mrs. Proctor, 68 years of age, attempted to cross Jefferson Avenue at the cross-walk adjacent to the intersection of that thoroughfare with Howard Street, in St. Louis. Jefferson had six lanes, three for southbound traffic and three for northbound. Defendant testified that he first saw Mrs. Proctor as she was stepping off of the west curb of Jefferson and that she walked eastwardly in a normal manner. There was evidence that Mrs. Proctor did not see the car, and that it struck her when she was in the middle of the three southbound lanes. After the contact Mrs. Proctor was observed to be lying in the street about three or four feet in front of defendant's car. The street was level and dry, the area was well lighted, there were no cars parked along the curb, and there was no other traffic in front of defendant or in the southbound lanes to his left or right.

Defendant conceded that he neither blew his horn nor swerved. He contended that he was only about two car lengths from Mrs. Proctor when he first saw her, that he immediately applied his brakes, and that he started to slow down. Contrary to his statement made to the police officer that his car had struck Mrs. Proctor, in his deposition and during the trial he stated that his car had stopped and that Mrs. Proctor walked against his car; but he also testified that Mrs. Proctor and the car had stopped at the same time. He testified that the tires on his 1967 Plymouth automobile were good, and that his car was in good operating condition. Defendant's wife, who was seated to his right, said that she did not see Mrs. Proctor before the accident, and that the first she knew that something was amiss was when her husband applied the brakes and she heard a thud.

Defendant was not asked, and did not state, the length of his car or its distance in feet from Mrs. Proctor when he first saw her. However, taking into account his speed of 25 miles an hour, his reaction time and his slow speed at the time of impact it is apparent that when he first saw Mrs. Proctor step off of the curb, oblivious to its approach, it is apparent from his own testimony that he must have been farther away from her than the 35 or 40 feet indicated by his testimony. Nor was there evidence, from any source, as to the width of the curb lane which Mrs. Proctor traversed, at a normal gait. However, we take judicial notice of the speed at which a person normally walks. Perry v. Dever, Mo., 303 S.W.2d 1; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628. And taking into account the width of modern cars, Fisher v. Gunn, Mo., 270 S.W.2d 869; Lee v. Holland, Mo.App., 258 S.W.2d 30, it is obvious that a lane for motor vehicle traffic must be at least 7 or 8 feet wide. Taking into account the time which must have elapsed while Mrs. Proctor, walking at the above rates of speed, walked across the curb lane, the distance covered by defendant's car at 25 miles per hour during that period of time, his reaction time, as well as the known fact that motor vehicles respond quickly and accurately to a driver's touch on the steering wheel, Richardson v. Wendel, Mo., 401 S.W.z2d 455, it may be mathematically demonstrated that defendant had ample time and distance, after he first saw Mrs. Proctor step off of the curb, to have swerved his car to his left and thereby have avoided striking the deceased. Losh v. Benton, Mo., 382 S.W.2d 617.

We turn then to the point raised by plaintiff in her appeal. In her case in chief plaintiff testified that she was 49 years of age, and that she was separated from her husband and had lived with her mother. She stated that her mother, who was in good health, received $100 or $150 per month from Social Security, and a pension from the employer of her mother's deceased husband, the amount of which she did not know. Plaintiff worked and turned over her earnings to her mother who paid all the bills, but she said that when she was out of work, as occurred from time to time, her mother was her sole support. She testified that by reason of her mother's death she had expended the following amounts: cemetery charges, $95.00; funeral bill, $1074.25; monument, $261.62; and one-half of her mother's hospital bill, $279.00, or a total of $1709.87. Receipted bills for the foregoing expenditures were introduced as exhibits. That for the funeral was receipted on May 6, 1969.

Prior to the time defendant called his last witness the record shows that the following occurred in chambers:

'THE COURT: Let the record show that on asking counsel into Chambers for the submission on instructions and some discussions were had, Mr. Brown has raised a point in that connection.

'MR. BROWN: That in this case, the plaintiff is the Administratrix and also suing for the heirs, of which she is the sole one. The issue came as to her right to collect for the funeral expenses of a little over $1,074.00. Defense counsel has ascertained that she did not pay the funeral expenses, they were paid by a policy of insurance on a Mr. Adams, under his automobile policy, who is her son, and who was in the same household as the deceased, and, therefore, counsel for the defense has indicated that he would put that evidence on and that in light of that evidence being a fact and, apparently, it is the fact, a withdrawal instruction was offered for the Court's consideration, withdrawing from the jury on the evidence of payment by the plaintiff of the funeral expenses.

'THE COURT: As I understand it, Mr. Berkman, you don't deny that the expenses he mentioned were paid under this (?) other policy?

'MR. BERKMAN: No, sir, I do not. I admit it.

'THE COURT: Under those circumstances and the case of Caen versus Feld (Mo.), 370 (371) S.W.2d 209, has been called to the Court's attention, and in view of that case's effort to distinguish the rule and the discussion of prior cases as to the rule on recovery of funeral expenses, the Court feels under the circumstances of this case just set out by Mr. Brown, such a withdrawal instruction will be given and it is, further, the Court's understanding that by doing that is satisfactory as far as Mr. Brown is concerned on the point?

'MR. BROWN: Yes, sir.

'MR. BERKMAN: And I object to the ruling of the Court.

'THE COURT: All right.'

As heretofore stated, the court gave Instruction No. 5, the withdrawal instruction as to the funeral...

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7 cases
  • Turner v. Sorrels, WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 1, 1981
    ...S.W.2d 693, 698 (1952); White v. Gallion, supra at 685-686; Wilson v. Moore, 523 S.W.2d 580, 581 (Mo.App.1975); Robinson v. Richardson, 484 S.W.2d 27, 29 (Mo.App.1972); Fultz v. Southwestern Bell Telephone Co., supra 382 S.W.2d 24 (Mo.App.1964). Defendant's case of Farnham v. Boone, 431 S.W......
  • Hood v. Heppler, 34929
    • United States
    • Court of Appeal of Missouri (US)
    • December 11, 1973
    ...injuries undeniably were substantial, we must conclude that the jury never reached the issue of damages. Robinson v. Richardson, 484 S.W.2d 27, 32 (Mo.App.1972); Mead v. Grass, 461 S.W.2d 708 (Mo.1971). Accordingly, we find no prejudicial error in the respect claimed by Secondly, plaintiff ......
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    • Court of Appeal of Missouri (US)
    • March 10, 1986
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    • United States
    • Court of Appeal of Missouri (US)
    • February 17, 1976
    ...505 S.W.2d 452 (Mo.App.1974), and the cases of Bullock Company, Inc. v. Allen, 493 S.W.2d 5 (Mo.App.1973), and Robinson v. Richardson, 484 S.W.2d 27 (Mo.App.1972), cited therein, applying the same For these reasons the judgment is affirmed. SMITH, C.J., and ALDEN A. STOCKARD, Special Judge,......
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