Speak v. Pryor

• Decision Date: 06 February 1962
• Docket Number: Nos. 23306,23307,s. 23306
• Citation: 355 S.W.2d 431
• Parties: Wayburn SPEAK, pro aml, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent. Inez SPEAK, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 431

355 S.W.2d 431

Wayburn SPEAK, pro aml, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent.

Inez SPEAK, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent.

Nos. 23306, 23307.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1962.

Dubiner & Gregg, Arthur T. Stephenson, Kansas City, for appellant.

Kuraner, Freeman, Kuraner, Oberlander & Lampkin, George T. O'Laughlin, James W. Humphrey, Jr., Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff, Wayburn Speak, a minor, by his mother, Inez Speak, sued defendant for damages growing out of personal injuries received by him when a car he was operating collided with defendant's automobile. Plaintiff, Inez Speak, owner of the automobile he was driving, sued defendant for damages suffered by her and growing out of the collision. The cases were consolidated and tried to a jury. There was a verdict for each of plaintiffs, against defendant, in the sum of $2000. Upon motion, the verdicts were set aside and judgment entered for defendant in each case; and the Court, in the alternative, sustained defendant's motion for a new trial either on the issue of damages only or on all issues.

The collision occurred in the intersection at 17th, an east-west street, and Lawn, a north-south street, in Kansas City. Lawn is 26 feet wide, and carries two-way traffic south of 17th, but north of 17th it is a one-way street, south. The collision occurred June 13, 1958, at about 6:30 p. m. The streets were of asphalt construction, and were dry. Visibility was good. Wayburn Speak, hereafter referred to as plaintiff, was operating his mother's 1950 Mercury automobile, traveling west on 17th. He was alone. Defendant was travelling north on Lawn and intended to turn left at the intersection. His wife was riding to his right. There was a square, two-story building located on the east side of Lawn, 13 feet east of the curb line, and 22 feet south of the curb line on 17th. It obscured the view of both drivers until they reached a point where they could see past the northwest corner of the building.

The case was tried and submitted on the humanitarian theory. Defendant contends that no submissible case was made on that theory because there was no evidence to support it except such as was in conflict with plaintiff's theory of the case, and with his own testimony. He cites Fisher v. Gunn (Mo.Sup.), 270 S.W.2d 869, 875.

He also contends that no case was made because the evidence failed to show that plaintiff came into a position of imminent peril in time for defendant, thereafter, to have stopped his car and avoided the collision.

Plaintiff testified to the effect that he was proceeding west and, when he reached a point 1 1/2 car lengths east of the east curb line of Lawn, he saw defendant's automobile proceeding north on Lawn, about 2 car lengths south of 17th; that plaintiff's speed was 15 miles per hour; that the speed of defendant's car was faster than plaintiff's, from 20 to 25 miles per hour; that when plaintiff's car was one length, 15 or 16 feet from the curb, proceeding at 15 miles per hour, defendant's car was then 1 1/4 car lengths from the curb line of 17th; that, at that point, plaintiff realized there was danger of a collision; that he applied his brakes but travelled 7 or 8 feet before they took hold, about 7 feet from the curb line; that he then travelled ten feet to the point of impact; that the left side of his car was 1 foot north of the center line of 17th; that he did not skid but that he heard defendant's car skid; that plaintiff entered the intersection first; that, at the point of impact, he was travelling not more than 5 miles per hour; that he tried to turn his car but could not do so because it was in second gear; that plaintiff's car never changed course; that plaintiff's car was damaged at the left front corner and left rear fender; that defendant's car hit him at the right front and right back.

Pictures in evidence, introduced by plaintiff, show that plaintiff's car was badly smashed across the entire left half of the right front, with some damage toward the right rear. The pictures show that defendant's car suffered damages on the right side, immediately back of the lamp, but the lamp was not smashed. The testimony and the pictures disclose that the vehicles came to rest, near together and side by side, at the northwest corner of the intersection, virtually against the curb, and headed nearly west. A police officer testified for plaintiff to the effect that a motor vehicle, travelling at a speed of 15 miles per hour with foot off of the brake, could have been stopped at 28 feet; with foot on the brake it could have been stopped at 22 1/2 feet; that, at 12 1/2 miles per hour, foot off of the brake, it could stop at 20 feet; at 12 1/2 miles, foot on the brake, 15 feet; at 10 miles, foot off brake, 16 feet and with foot on the brake, 12 feet. He stated that if a car left skid marks, overall, of 20 feet before impact, it would indicate its minimum speed to have been 14 miles per hour; and that it 70 feet of skid mark was laid down, a speed of 34 miles per hour would be indicated.

A police officer of the accident investigation unit visited the scene 13 minutes after the collision occurred. He testified for defendant to the effect that he took pictures and measurements; that the pictures in evidence were the same or similar to those taken by him; that plaintiff told him, at the scene, that he was travelling west at 25 to 30 miles per hour when he saw defendant's car 15 feet away and could not avoid the accident. He further testified to the effect that he observed skid marks, 20 feet in length, leading to defendant's car, and marks leading from the point of impact 56 feet east, (past the intersection of 17th and Lawn) and 24 feet northwest from the point of impact; that they led to where plaintiff's car then sat; that those marks would indicate plaintiff's speed to have been at least 34 miles per hour; that, to a trained eye, they were visible on the pictures; that the point of impact was 11 feet west of the east curb line of Lawn, which is 26 feet wide.

Witnesses for plaintiff testified that there were no skid marks left by his car. Defendant, called by plaintiff, testified to the effect that, as he approached 17th from the south on Lawn, at a point two car lengths south of the intersection he was travelling at a speed of from 10 to 15 miles per hour; that he had his foot on the brake because the location of the building at the southeast corner made it a dangerous intersection; that he was thoroughly familiar with the streets and intersection and had his signal light on to turn left; that when 15 feet south of the curb line he saw plaintiff 3 or 4 car lengths east of the intersection; that, when the front of his car was from 10 to 20 feet south of the curb line he fully applied the brakes; that plaintiff was then from 54 to 72 feet east of the curb...