Stimage v. Union Elec. Co.

• Decision Date: 23 February 1971
• Docket Number: No. 33795,33795
• Citation: 465 S.W.2d 23
• Parties: Alicia STIMAGE, a Minor by John Stimage, Father and Natural Guardian, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 23

465 S.W.2d 23

Alicia STIMAGE, a Minor by John Stimage, Father and Natural Guardian, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a Corporation, Defendant-Appellant.

No. 33795.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 23, 1971.

Carter, Brinker & Doyen, Bernard C. Brinker, Clayton, for defendant-appellant.

Padberg, Raack, McSweeney & Slater, Edward P. McSweeney, St. Louis, for plaintiff-respondent.

SMITH, Commissioner.

This is an appeal from a judgment of $10,000 in favor of plaintiff in accord with the jury's verdict in a child dart-out accident. Defendant's attack on the judgment presents essentially two grounds: sufficiency of the evidence and excessiveness of the verdict.

In September, 1968, plaintiff Alicia Stimage, then almost six years old, ran across Short St. Louis street in the city of St. Louis and was struck by defendant's truck, operated by its employee, Victor J. Recupero, while acting in the course of his employment. Short St. Louis street is one leg of a triangle formed by Prairie Avenue, St. Louis Avenue and Short St. Louis at a point where St. Louis Avenue changes direction and angles off to Prairie. Short St. Louis is the straight line continuation of St. Louis Avenue and ends at Prairie. Recupero, operating a small pick-up or panel truck of defendant, was proceeding west on St. Louis Avenue, when he reached the intersection of Short St. Louis. He then proceeded westwardly on Short St. Louis and struck plaintiff who emerged from between parked cars on the south side of Short St. Louis and ran across that street. In determining the sufficiency of plaintiff's case, submitted upon humanitarian failure to stop, we review the evidence in the light most favorable to plaintiff and give her all reasonable inferences which may be drawn from the evidence. We disregard defendant's evidence except to the extent it may benefit plaintiff.

Recupero testified, in the plaintiff's case that his truck was in good mechanical condition, that the brakes were all right. Immediately prior to the accident, and at the time the first child ¹ became visible from between the parked cars the speed of defendant's truck was twenty miles per hour. Defendant's employee could make no estimate of the distance between the child and his truck when the first child became visible. At the time of impact his truck was almost stopped. In response to a question on direct examination--whether Recupero could give an estimate as to how far it was from the plaintiff when Recupero first saw her to the point of impact--the witness answered, 'No. I seen the first child jump out from the car. That's when I started to stop.'

On cross-examination by defendant the following testimony was given:

'Q As soon as you saw--you say you saw the first child come out, as soon as you saw that, did you apply your brakes? A Yes, sir.

'Q As quickly and as fast as you could? A Yes, sir.

'Q An emergency application? A right.

'Q Did your truck skid? A Yes, sir.

'Q And did it skid up to the point where there was a collision with Alicia? A Yes, sir.'

Plaintiff's evidence of liability (aside from Recupero's testimony) consisted primarily of three photographic exhibits and the testimony of plaintiff's brother, Barry, ten years old at the time of trial and nine at the time of the accident. The photographs, taken shortly before trial, were views of the accident scene, with Barry standing in a different place on each photo. Barry testified that he was following behind his sister when she darted out into the street. She was the only child to enter the street until after the impact when Barry ran to her. He saw her at all times prior to and at the time of impact. He testified that the place he was standing in exhibit 1 was where his sister 'began to cross the street.' It depicts a spot seven feet from the curb ² just to the street side and between two parked cars. His position in exhibit 2 was 'where she got hit.' That spot was seven feet from the north curb of Short St. Louis street, directly, or nearly so, across from his position in exhibit 1. His location in exhibit 3 was 'where the truck was coming when she started to cross the street.' That position was 114 feet from Barry's position in exhibit 2. The street at the point of impact was 35 feet 5 inches wide.

Defendant's attack on the sufficiency of the evidence to support liability is two-fold. First, it is contended that no evidence was adduced that the truck could have been stopped after the child became visible; and second, that plaintiff is bound by Recupero's testimony that when the child first became visible he made an emergency application of his brakes and could not stop his vehicle in time. These in turn.

The most favorable evidence to plaintiff places the truck 114 feet from the point of impact at the time the child became visible. The truck was moving at twenty miles per hour at that time. The brakes were 'all right.' The vehicle was a small pick-up or panel truck. Defendant's exhibits, taken shortly after the accident show the street to be dry and in normal condition for a city street. The appellate courts of this state have frequently held that although a court may not take judicial notice of the exact distance in which a vehicle may be stopped the court may take judicial notice that a vehicle traveling at a certain speed can be stopped within certain limits. It has been held that it is common knowledge that a vehicle traveling twenty miles per hour can be stopped in twenty to twenty-five feet (Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, apparently excluding reaction time); that a truck traveling twenty-five to thirty miles per hour can be stopped in much less distance than 130 feet (Crane v. Sirkin & Needles Moving Co., Mo.App., 85 S.W.2d 911); that an automobile traveling fifteen to twenty miles per hour could be stopped in less than ninety feet (Hildreth v. Key, Mo.App., 341 S.W.2d 601); that properly equipped automobiles traveling at twenty miles per hour can be stopped in less than fifty feet including reaction time (Losh v. Benton, Mo., 382 S.W.2d 617). See also Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Leavell v. Thompson, 238 Mo.App. 130, 176 S.W.2d 854. The courts of this state have also judicially noted that average reaction time is three-quarters of a second. Immekus v. Quigg, Mo.App., 406 S.W.2d 298(2, 3). At twenty miles per hour defendant's truck was traveling 29 1/3 feet per second, and would have traveled approximately 23 feet during reaction time. It then had 91 feet in which to stop, nearly four times the distance judicially noted in Spoeneman v. Uhri, supra. There was nothing in the evidence requiring the jury to ignore the knowledge common to all that a vehicle such as defendant's could have been stopped in less than 114 feet. It was not necessary that there be evidence upon which to base an expert opinion of ability to stop within the distance available.

Defendant further contends that the testimony does not establish that plaintiff was 114 feet from defendant's truck when she became visible. This is based on the contention that Barry stated his position in exhibit 3 was 'where the truck was coming when she started to cross the street.' It is then contended that she did not become visible until she had passed the parked cars, some seven feet from the edge of the street. But in identifying his position in exhibit 1, Barry stated, 'That's where she began to cross the street' and his position in that exhibit is to the north of the parked cars. The jury could properly conclude that when he referred to her starting to cross the street he had reference to a position on the street side of the parked cars, a position in which she was visible.

Defendant also contends that for judicial notice to be applicable, the fact to be judicially noted must be introduced in evidence. This contention fails to note the difference between judicial notice based upon common knowledge of mankind, and judicial notice based upon the availability of a fact in a record easily available to the court which by statute or court decision...