Schneider v. Dannegger
| Decision Date | 19 November 1968 |
| Docket Number | No. 32991,32991 |
| Citation | 435 S.W.2d 416 |
| Parties | Roger SCHNEIDER, Plaintiff-Respondent, v. Mark C. DANNEGGER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Guilfoil, Caruthers, Symington, Montrey & Petzall, Gordon G. Hartweger, St. Louis, for defendant-appellant.
Lawrence O. Willbrand, St. Louis, for plaintiff-respondent.
This is a suit for damages arising out of personal injuries and damage to the plaintiff's automobile. Both were occasioned when the automobile which the plaintiff owned and was driving was struck by the automobile which the defendant was driving. The plaintiff prevailed below and obtained a verdict and judgment in the sum of $84.00 for personal injuries and $900.00 for property damages. Defendant's motion for a new trial was overruled, and in due time thereafter the defendant appealed.
The plaintiff's case was submitted on humanitarian negligence in failing to slacken speed. Only two points are urged by the defendant-appellant. One asserts that the evidence was insufficient to submit plaintiff's case on humanitarian negligence. The other relates to the closing argument of plaintiff's counsel.
The plaintiff had a passenger in his car, now named Joyce Schneider. She also sued the defendant. Her case was tried in January of 1967. She prevailed, and the defendant appealed. The case here considered was tried in April of 1967. Both appeals were joined for the purpose of briefing and argument. The general facts of the case are set out in detail in the case of Schneider v. Dannegger, Mo.App., 435 S.W.2d 413, which is handed down concurrently with this opinion. We shall therefore limit to some extent our statement of facts in the case before us to such variances in the testimony as are relevant to the issue raised.
Schneider was driving his Chevrolet. It was 16 to 18 feet in length. He was traveling east on Link Avenue which is 35 to 40 feet wide. As he reached a point 15 feet from the intersection of Hurstgreen, a north and south street of the same width as Link Avenue, he looked to his left. At that point he could see 50 feet up Hurstgreen Avenue, and he saw nor car approaching. He stated that there was a clear view up Hurstgreen for at least 100 feet from the point where he entered the intersection. He did not look at that point but proceeded to cross Hurstgreen at a speed of 5 to 10 m.p.h. His passenger stated that his speed in crossing was 5 m.p.h. When his car was astride the center line of Hurstgreen and the left side of its was 4 feet south of the center line of Link, it was struck by the defendant's car. The passenger in plaintiff's car first saw the lights of defendant's car when it was two car lengths away, and she estimated its speed at 35 m.p.h. The plaintiff first saw defendant's car as it was just entering the intersection and he also estimated its speed to be 35 m.p.h.
The defendant stated in his deposition, offered in evidence by the plaintiff, that he approached the intersection at a constant speed of 15 to 20 m.p.h. He said that he struck a match and lighted a cigarette as he was approaching the intersection and that an ash blew into his eye. He testified that he could look with the other eye, but did not see the plaintiff's car until he was about 6 feet from it. He stated that he had power brakes which were in good operating condition. He had his foot on the brake pedal as he approached the intersection and as soon as he saw the plaintiff he applied the brake and his car slowed some before the impact.
As stated, it is the contention of the appellant that plaintiff failed to make a submissible case of humanitarian negligence in failing to slacken the speed of his car. In passing upon this point we must review the evidence in a light most favorable to the plaintiff.
The facts required to constitute a situation of humanitarian negligence were set out in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, in 1924. They have been repeated time after time and this obviates the necessity of stating them again. The first contention of the appellant is that there was no evidence that the plaintiff came into a position of peril in time for the defendant to have avoided the collision. The appealing defendant was charged with the knowledge that the plaintiff was moving at a slow speed into a collision course as he entered the intersection and slowly headed across. Burns v. Maxwell, Mo., 418 S.W.2d 138; Wyckoff v. Davis, Mo., 297 S.W.2d 490. The exact place of such immediate danger is for the jury to determine. Burns v. Maxwell, supra; West v. St. Louis-San Francisco Railway Company, Mo., 295 S.W.2d 48, l.c. 51. The jury could well have reached the conclusion that the plaintiff was in a position of peril as he went into the intersection with the fixed purpose of entering the path of appellant's travel.
Accepting 35 feet as the width of the street, the plaintiff traveled 25.5 feet to the point where his car was astride the center line of Hurstgreen. He was going at the rate of 7.3 feet per second if traveling at the speed of 5 m.p.h. It therefore took 3.5 seconds for him to reach the position he was in at the time of the collision.
It is the appellant's contention that if he, the defendant, was traveling at the speed of 35 m.p.h. estimated by plaintiff's witnesses he could not have slackened his speed in time to have avoided the collision. Estimates of speed are not judicial admissions and while the plaintiff may not have the benefit of estimates which contradict his own testimony and are at war with the fundamental theory of the case, he is not bound by his own estimates of speed. He may rely upon the defendant's evidence and this is particularly true where, as here, the defendant may have been in a better position to give a more...
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