Stanfill v. City of Richmond Heights, 39197.

• Decision Date: 15 January 1980
• Docket Number: No. 39197.,39197.
• Citation: 605 S.W.2d 501
• Parties: Elizabeth H. STANFILL, Plaintiff-Appellant, v. CITY OF RICHMOND HEIGHTS, Missouri, and Ronald Murray, Defendants-Respondents.
• Court: Missouri Court of Appeals

605 S.W.2d 501

Elizabeth H. STANFILL, Plaintiff-Appellant, v. CITY OF RICHMOND HEIGHTS, Missouri, and Ronald Murray, Defendants-Respondents.

No. 39197.

Missouri Court of Appeals, Eastern District, Division Two.

January 23, 1979.

Motion for Rehearing and/or Transfer Denied February 16, 1979.

As Modified January 15, 1980.

Robert G. Schwendinger, Barnes, Schwendinger, Riley & O'Reilly, Clayton, for plaintiff-appellant.

Joseph H. Mueller, Mark F. Haywood, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for defendants-respondents.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 16, 1979.

STEPHAN, Presiding Judge.

This wrongful-death action arises from an intersectional collision between the vehicles of plaintiff's husband, William Stanfill, who was killed in the accident, and defendant City of Richmond Heights. The City vehicle was being driven by an employee, defendant Ronald Murray. Plaintiff's verdict-directing instruction predicated defendants' liability on Murray's failure to keep a careful lookout, driving at an excessive speed and violation of a traffic signal. Defendants charged that William Stanfill was contributorily negligent for failure to keep a careful lookout or failure to slacken his speed when the reasonable likelihood of a collision could have become apparent through the exercise of the highest degree of care.¹ The jury returned a verdict for defendants and plaintiff appeals from the judgment entered thereon, claiming that the submitted theories of contributory negligence lack evidentiary support. We find such support in the record and accordingly affirm the judgment.

In considering whether an instruction was supported by the evidence at trial, we view all the evidence in the light most favorable to the offering party, giving that party the benefit of all favorable inferences reasonably drawn therefrom and disregarding evidence to the contrary. Gruhala v. Lacy, 559 S.W.2d 286, 289 (Mo.App.1977); Searcy v. Neal, 549 S.W.2d 602, 603 (Mo. App.1977); Hood v. Heppler, 503 S.W.2d 452, 455 (Mo.App.1973). Although defendants' evidence conflicts sharply with that of plaintiff in certain material aspects (particularly with regard to Murray's speed and the part of the City's vehicle first struck by the Stanfill vehicle), we accept that evidence as true for the purpose of this consideration, for a party is entitled to an instruction on the theory of his own evidence. Welch v. Sheley, 443 S.W.2d 110, 118 (Mo. 1969). The issue of negligence is ordinarily a question for the jury and is always so when the material facts are disputed, or, being undisputed, are reasonably subject to different interpretations. Burch v. King, 549 S.W.2d 919, 922 (Mo.App.1977). Each element of a disjunctive instruction, such as that submitted by defendants, must be supported by substantial evidence and lack of such support on any theory submitted renders the instruction erroneous. MAI 17.02 Note on Use No. 2; Saupe v. Kertz, 523 S.W.2d 826, 830 (Mo. banc 1975). Although there is ample evidence from which the jury could have found for the plaintiff and against the defendants, it is not for this court to weigh the evidence. The question of whether a verdict is against the weight of the evidence is for the trial court alone. An appellate court may intervene only where there is a complete absence of substantial evidence upon which to base the verdict. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 496 (Mo.App.1973); Wilson v. Concordia Farmers Mutual Insurance Company, 479 S.W.2d 159, 161 (Mo.App. 1972).

We relate the material evidence in the light of the above principles. The collision occurred at the intersection of Manchester and Big Bend, in St. Louis County, shortly after 10:00 p. m. on August 29, 1975. Both streets are busy through streets, Big Bend running north-south and Manchester east-west, and the intersection is controlled by electric signals. Both streets are five lanes wide at the intersection, with two through lanes in each direction and a left-turn lane in the center. On the night of the accident, the weather was clear and the road dry. William Stanfill was driving alone in a Volkswagen van in the curb lane of east-bound Manchester at a speed of approximately 30 miles per hour. Defendant Murray, a private in the Richmond Heights Fire Department, was driving in the inner south-bound lane of Big Bend in a large fire rescue truck in response to an emergency call. Both the siren and flashing light atop the cab of the truck were in operation as the truck neared the intersection; before the truck entered the intersection, its "yelping" siren and air horn were activated. Murray testified that he had reduced his speed to 30 miles per hour shortly before he entered the intersection. It is undisputed that the light was green for traffic on east-bound Manchester and red for south-bound traffic as the two vehicles entered the intersection. There were a number of vehicles stopped at the intersection. Murray passed two automobiles stopped for the light on south-bound Big Bend. Stanfill also passed two stopped autos as he entered the intersection, but the only witness who could clearly remember their location placed them in the left-turn lane rather than in the other through lane of traffic. The two vehicles collided at the intersection of the curb lane of east-bound Manchester and the inner lane of south-bound Big Bend. According to the testimony of Murray and Raymond Stoverink, a fire department captain and a passenger in the cab of the truck, the left front of Stanfill's van first struck the truck over the right rear axle; the van spun around and hit the truck again in the right front. The truck veered to the left and struck two vehicles stopped in the left-turn lane of north-bound Big Bend.

We consider first the question of whether Stanfill could have avoided the collision by slackening his speed after he could have realized, using the highest degree of care, that there was a reasonable likelihood of a collision with the truck. At trial, plaintiff attempted to establish the point at which Stanfill first saw the truck, approaching perpendicularly from his left. Based on Stanfill's speed (30 miles per hour or 44 feet per second), the judicially recognized reaction time of ¾ second (see, e. g., Shelton v. Bruner, 449 S.W.2d 673, 677 footnote 4 (Mo.App.1969)), and the point at which Stanfill began to brake (approximately 7 feet from the impact), plaintiff concluded that Stanfill was no more than 40 feet from the point of impact when he first saw the truck. Plaintiff's expert witness testified that a vehicle travelling 30 miles per hour would require approximately 73 feet to stop under the road conditions existing at the time of the collision.² Therefore, argues plaintiff, Stanfill simply did not have time to take effective precautionary action. The point at which Stanfill first saw the truck is irrelevant in this case, however. Submission on this theory requires substantial evidence from which a jury could find or reasonably infer that Stanfill had the time and means, considering the position, movement and speed of the vehicles, to have avoided the truck once he had actual or constructive knowledge of a reasonable likelihood of collision. Wallander v. Hicks, 526 S.W.2d 848, 852-853 (Mo. App.1975); Robinson v. Gerber, 454 S.W.2d 933, 936 (Mo.App.1970). The critical measurement then is Stanfill's distance from the point of impact when, by exercising the highest degree of care, he could have seen the approaching rescue truck in time to have taken appropriate protective measures.

Plaintiff contends that there was no evidence that Stanfill could have seen the truck before he actually did and that, in fact, it would have been impossible for him to have done so in time to take precautionary action because his view of the truck was obstructed by an automobile showroom located on the northwest corner of the intersection. We do not agree. It is apparent from a scale drawing of the intersection that Stanfill's view of the rescue truck was totally unobstructed by the showroom on the corner when he was at a distance of more than 95 feet from the point of impact.³ Furthermore, there was testimony from a witness, standing on the east side of Big Bend approximately 300 feet north of the intersection, that he could see the...