Slaughter v. Myers, 47696

• Decision Date: 11 April 1960
• Docket Number: No. 47696,No. 1,47696,1
• Citation: 335 S.W.2d 50
• Parties: Melvin SLAUGHTER, Plaintiff-Respondent, v. Orval MYERS, Defendant-Appellant
• Court: Missouri Supreme Court

Page 50

335 S.W.2d 50

Melvin SLAUGHTER, Plaintiff-Respondent, v. Orval MYERS, Defendant-Appellant.

No. 47696.

Supreme Court of Missouri, Division No. 1.

April 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 9, 1960.

Opinion Modified on Court's Own Motion May 9, 1960.

Donald P. Thomasson, Jackson & Thomasson, Jackson, Powell & Jones, Dexter, for plaintiff-respondent.

Blanton & Blanton, Sikeston, for defendant-appellant.

HYDE, Presiding Judge.

Action for damages for personal injuries sustained in an intersection collision of two automobiles. Plaintiff had verdict and judgment for $10,000 and defendant has appealed.

Plaintiff submitted on failure to yield right of way, failure to keep a lookout to the right and excessive speed. Defendant contends that plaintiff failed to make a jury case claiming that his evidence shows he was guilty of contributory negligence as a matter of law. Therefore, we will consider the evidence from the viewpoint most favorable to plaintiff in ruling this issue. The collision occurred about 5:15 P.M., October 10, 1957, in the city of Dexter at the intersection of Mulberry Street, a north and south street, and Truitt Street, an east and west street. Plaintiff was driving west on Truitt and defendant was driving north on Mulberry. The pavement on Truitt was 16 feet wide, with shoulders about nine feet wide; there was no obstruction on the north shoulder of Truitt. The pavement on Mulberry was 19 feet wide but there was a ditch about two feet deep on the east side of the pavement that was bridged over by the sidewalk at the southeast corner of the intersection; and there was also a fire plug, a concrete street marker post and a utility pole at that corner. (The ditch did not go north of the intersection but went east on the south side of Truitt.) There was a house on that corner, 15 to 18 feet from each of the two streets, facing on Mulberry. Mulberry ran from the north end of Dexter to the south end, crossing Highway 60, and was one of the main thoroughfares of the city; but there were no stop signs at this intersection. There was no evidence as to the amount of traffic on either street but plaintiff often drove on Truitt to go to his daughter's home.

As plaintiff drove west on Truitt he saw two children in the street near the middle of the block east of Mulberry and slowed almost to a stop for them to get across the street. He said he 'pulled it down in low and then slipped it on up in second' attaining a speed of from 15 to 20 miles per hour but as he approached the intersection got down to 10 miles per hour. He said he looked south about 30 or 35 feet before he got to the intersection and could see from 90 to 100 feet south; and seeing no cars approaching he looked north. Plaintiff then looked straight ahead and started across, on the right (north) side of Truitt at 10 miles per hour in second gear. Plaintiff never saw defendant's car and said the last thing he remembered, before waking up in the hospital, was getting into the intersection when 'something just like to blew me up.' Plaintiff said his car was in good condition with good brakes and tires and that he could have stopped his car at 10 miles per hour in five feet, which of course did not include reaction time, but that he did not apply his brakes after he passed the children. Plaintiff's wife, who was riding with plaintiff, also said their speed was about 10 miles per hour going into the intersection. She said she saw nothing coming from the south when they entered the intersection but when 'out about middleways' she saw 'a car coming into us' which she judged was coming 'around 35 or 40 miles an hour.' She said when she first saw defendant's car 'it was about the length of two cars back' not yet in the intersection; and that defendant seemed to be 'on his brakes' and turning. Plaintiff's car was struck on the left side between the front wheel and the door. After the collision, plaintiff's car came in contact with a utility pole on the west side of Mulberry, north of Truitt, with sufficient force to break the pole in two. Debris of the impact was located in the center of the intersection and scattered to the northwest from there.

Plaintiff also had the testimony of a State Highway Patrolman that in his investigation of the collision, he saw defendant unconscious at the hospital and smelled alcohol on his breath; he stated that it smelled like beer. (Defendant testified that he had one bottle of beer.) A witness who saw defendant's car go by his house on Mulberry (the second house south of the intersection) estimated its speed at 40 miles per hour. It was also shown that the speed limit in Dexter except on state highways was 25 miles per hour.

Defendant had the testimony of two women who saw him pass on Mulberry, about the middle of the block south of the intersection, estimating his speed at about 25 miles per hour. A patrolman found skid marks of defendant's car extending from 19 feet south of the center of the intersection, turning northwest to his car, which stopped over the sidewalk on the north side of Truitt, on the northwest corner of the intersection. There were no skid marks from plaintiff's car. The patrolman said he checked sight distances, finding that from 35 feet east of the center of Mulberry he could see all the way to Highway 60, one block south of the intersection; and that 35 feet east of the east sidewalk on Mulberry he could see 210 feet south. Defendant testified that his speed was 25 miles per hour when he passed the two women in the middle of the block and that he remembered nothing after that until he woke up in the hospital.

Defendant says plaintiff must be held negligent as a matter of law on the grounds (1) that he failed to stop his car prior to the point of impact when, by his own testimony, he could have done so; (2) that he failed to turn his car to the right onto the north shoulder of Truitt or the east shoulder of Mulberry when, by his own testimony, he could have done so; (3) and that he failed to look to his left as he approached and entered the intersection when he could have seen defendant's car so close as to constitute an immediate hazard of a collision. Of course, plaintiff would not have taken either of the first two suggested actions unless he had looked to the left a second time before entering the intersection. Therefore, the decisive question is not what plaintiff could have done if he had looked again and seen defendant approaching but whether he was negligent (failed to exercise the highest degree of care) in failing to look.

Defendant cites cases like Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, and Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33, in which the plaintiff saw the close approach of the defendant's car but continued to cross in front of it leaving to the defendant to take action to avoid a collision. Defendant also cites cases like Douglas v. Whitledge, Mo.App., 302 S.W.2d 294; James v. Berry, Mo.App., 301 S.W.2d 530; and Roux v. Pettus, Mo.App., 293 S.W.2d 144, in which the plaintiff failed to see the defendant's car closely approaching in plain view. We think this case is more like Burke v. Renick, Mo.App., 249 S.W.2d 513, 516, in which it was shown the plaintiff looked south 15 to 20 feet before reaching the intersection where he could see 60 feet south of the intersection; he then looked north and ahead and did not look south again until he had entered the intersection. It was held that 'this gave him the right to assume that there was no immediate danger from the left, for it was not necessary for him to anticipate the approach of a vehicle from the south at an unlawful rate of speed'; and that 'since it was his duty to look in both directions, as well as to look ahead, and since it is an impossibility for a person to perform all three acts at once, it was not contributory negligence as a matter of law for Randell to fail to look continually to the south.' See also Hoppe, Inc. v. St. Louis Public Service Co., Mo.App., 227 S.W.2d 499, 502, ruling on...