Schmittzehe v. City of Cape Girardeau, 47323
| Decision Date | 14 September 1959 |
| Docket Number | No. 2,No. 47323,47323,2 |
| Citation | 327 S.W.2d 918 |
| Parties | Marjorie SCHMITTZEHE and Hilary Schmittzehe, Appellants-Respondents, v. CITY OF CAPE GIRARDEAU, a Municipal Corporation, and Charles Banfield, Appellants-Respondents |
| Court | Missouri Supreme Court |
Strom & Strom, Elmer A. Strom, Stephen E. Strom, Cape Girardeau, for plaintiffs-appellants.
Oliver & Oliver, Gerald B. Rowan, Cape Girardeau, for defendants-appellants.
STOCKARD, Commissioner.
In this action for damages resulting from an intersectional collision the jury returned a verdict in favor of plaintiff Marjorie Schmittzehe in the amount of $13,500 for personal injuries and in favor of her husband, Hilary Schmittzehe, in the amount of $7,500 for medical expenses and loss of services of his wife and for damages to his automobile.
The collision occurred at the intersection of Sprigg and Morgan Oak Streets in the City of Cape Girardeau on January 8, 1957, when the 1953 Ford automobile belonging to Hilary Schmittzehe and being operated by Marjorie Schmittzehe was struck by a Ford dump truck owned by the City of Cape Girardeau and being operated by its employee Charles Banfield in the course of his employment. The claim of Marjorie Schmittzehe was submitted to the jury on the alleged primary negligence of excessive speed or failure to maintain a lookout by Charles Banfield and on the alleged humanitarian negligence on his part in failing to slacken speed and swerve. The trial court sustained defendants' motion for a new trial on the ground that Marjorie Schmittzehe was guilty of contributory negligence as a matter of law and it was therefore error to submit her case on primary negligence. It is from this order that plaintiffs have appealed. The trial court also overruled defendants' motion to set aside the verdict and judgment and to enter judgment for defendants, and defendants have appealed from that order.
Plaintiffs filed a motion to dismiss the appeal of defendants on the ground that such appeal is not authorized by Section 512.020 RSMo 1949, V.A.M.S., which motion we must sustain because the order appealed from does not constitute a 'final judgment' within the meaning of the statute. Gier v. Clark, Mo.Sup., 300 S.W.2d 519[2, 3]; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972; Schneider v. St. Louis Public Service Co., Mo.Sup., 238 S.W.2d 350; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710. But, the effect of dismissing defendants' appeal is more academic than real. The basis of the purported appeal was that the trial court should have sustained their motion for a directed verdict because plaintiffs failed to make a submissible case under either primary or humanitarian negligence. These contentions were preserved in the motion for new trial, and in a situation precisely the same as here this court held that it would upon appeal by plaintiff from an order granting a new trial (after dismissing defendants' appeal from the order denying a motion to set aside the verdict and judgment and enter judgment in accordance with the motion for a directed verdict) examine the evidence to determine whether or not plaintiff made a case for the jury, and if the 'record plainly shows plaintiff under the law and the evidence cannot recover, the parties should be spared the trouble and expense of another trial.' Bailey v. Interstate Airmotive, Inc., supra, 219 S.W.2d at page 336.
The terms 'plaintiff' and 'defendant' when used in the singular shall refer to Marjorie Schmittzehe and Charles Banfield, respectively.
The collision occurred about 4:15 o'clock in the afternoon. The day was cloudy and hazy, and at the time it was misting rain and the streets were wet. The visibility was bad and a person could not 'see too far.' Each street was 40 feet in width. On Morgan Oak, west of the intersection, there was a stop sign located eight feet from the Sprigg Street curb. There was no stop sign for traffic moving north on Sprigg. On the southwest corner of the intersection there was a gasoline service station extending 107 feet south of Morgan Oak. Plaintiff drove her husband's Ford east on Morgan Oak to the stop sign and stopped so that she was about even with it. Across the intersection, headed west on Morgan Oak, Paul Robert had stopped his automobile preparing to make a left turn and go south on Sprigg. Plaintiff testified that while she was stopped she looked to her left and then to her right, and because 'it was so bad' she looked again. She could see to the 'end of the filling station or a little ways past, probably 110 or 115 feet.' There were no obstructions that would prevent her from seeing farther to the south, but she testified that 'the weather, it was so bad, I couldn't see any farther.' She saw no vehicle approaching from the south and she then put her car in 'low,' started forward and was 'picking up speed.' She did not again look to the south. When she was three-fourths of the way across Sprigg, and the front of her automobile was about even with the east curb line of Sprigg, and she had reached a speed of eight miles an hour, the right front part of the Ford dump truck operated by defendant struck the right rear wheel of her automobile. She did not see the dump truck before the collision and she heard no warning signal.
Defendant was present in the court room but did not testify, but plaintiffs introduced portions of his deposition as declarations against interest. He was hauling a load of crushed stone. The windshield wiper on the dump truck (there was only one) was working and the brakes were good. He could see 'maybe two blocks' looking straight ahead, and he guessed that he could see one hundred and fifty feet at an angle 'if you had an opening where you could see through.' He did not remember seeing plaintiff at the stop sign, but he did see her pull out into the intersection when he was about 30 feet north of the south line of the service station. Before he entered the intersection he looked 'kinda partially' to his left. He saw the Robert car stopped at the stop sign to his right when he was at the south line of the service station, but at that time he saw no cars moving or stopped on the left side. When he saw plaintiff's car he started to apply his brakes. He had no estimate whatever of her speed. He did not turn to the right because he would have been headed toward the Robert car, and he did not turn to the left because 'I would still hit her, I imagine I would.' There were no other cars in the intersection. He sounded no signal and all he did was to apply his brakes. From the time he put his foot on the brakes until he stopped he traveled 'fifteen or twenty feet, something like that, from the time I hit the brakes maybe,' but he 'wouldn't have traveled over thirty foot at any one time.' At 15 miles an hour, with the load he had and the weather conditions, he could stop in 'about thirty feet' from the time he 'hit the brakes.'
Paul Robert testified that at the time plaintiff 'began to go across and enter the intersection' he saw the truck coming north approximately at the south line of the service station, but he also stated that he was not testifying with exactness as to the relative positions of the vehicles at the time. He estimated the speed of the truck at 30 miles an hour, and it did not appear to change its speed or swerve.
The parties stipulated that the maximum speed limit was 25 miles per hour, and that, among other things, the ordinances of the City of Cape Girardeau provided that 'The operator of any vehicle who has stopped as required by law in obedience to a stop sign at an intersection shall yield to other vehicles within the intersection or approaching so closely on the protected street as to constitute an immediate hazard, but said operator having so yielded may proceed, and other vehicles approaching the intersection on the protected street shall yield to the vehicle so proceeding into or crossing the protected street.'
In a memorandum opinion the trial court set forth its reasons for concluding that plaintiff was negligent as a matter of law. He relied primarily on the testimony of plaintiff that she could see to the south line of the service station and did not see the truck, but that Robert testified that he saw the truck at the south line of the service station as plaintiff 'began to go across and enter the intersection.' He then concluded that 'If the testimony of Robert is to be believed then defendant driver was negligent in not seeing her [plaintiff] sooner but plaintiff cannot submit on that theory without showing she was free of negligence and to look and fail to see that which was clearly visible is negligence,' and
In determining whether or not a submissible case was made on the theory of primary negligence or under the humanitarian rule we review the evidence from the standpoint most favorable to plaintiffs and give them the benefit of all reasonable inferences therefrom. Fenneren v. Smith, Mo.Sup., 316 S.W.2d 602.
When plaintiff was stopped at the stop sign the front of her automobile was a little more than 40 feet from the east curb line of Sprigg Street. Plaintiff started from a stopped position and after traveling to the point of collision she was then traveling eight miles an hour. Her average speed was approximately four miles an hour. We realize that time cannot be computed accurately from average speed and a known distance, but it can furnish an approximation. It is also fair to say that plaintiff's speed probably was not at a uniformly accelerated rate but the first part was at a greater acceleration than the last, and that in...
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Jones v. Fritz, 7980
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