La Tour v. Pevely Dairy Co.
| Decision Date | 19 September 1961 |
| Docket Number | 30660,Nos. 30659,s. 30659 |
| Citation | 349 S.W.2d 436 |
| Parties | Jeannine LA TOUR, a minor, by and through Doris LaTour, her next friend, Plaintiff-Respondent, v. PEVELY DAIRY COMPANY, a corporation, and Oscar G. Schaefer, Administrator of the Estate of Mary Bradshaw, Deceased, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
E. C. Albrecht, Jr., St. Louis, for defendant-appellant, Pevely Dairy co.
F. X. Cleary, St. Louis, for defendant-appellant, Schaefer.
William R. Kirby, St. Louis, for respondent.
BRADY, Commissioner.
Jeannine LaTour, hereinafter referred to as respondent, by her mother, Doris LaTour, as her next friend, brought this action against Pevely Dairy Company, a corporation, hereinafter referred to as Pevely, and Oscar G. Schaefer, administrator of the estate of Mary Bradshaw, to recover damages for personal injuries she sustained as a result of an occurrence at or near the intersection of 22nd and Benton Streets in the City of St. Louis on April 28, 1956. We will refer to the administrator's side of this case in the name of the deceased driver, Bradshaw. Pevely and Bradshaw separately appeal.
There is no contention on either appeal dealing with the excessiveness of the verdict or in any other way relating to the nature and extent of respondent's injuries, and therefore the facts with respect to those issues will not be stated herein, except insofar as the physical location of the respondent's injuries may have bearing on where the respondent was when she was struck.
The facts were that the intersection at 22nd and Benton Streets had no traffic control signals or signs governing passage through it. Twenty-second Street is 36 feet wide, and Benton is 30 ft. 6 inches wide. There once were street-car tracks running down the center of 22nd Street, and these have been covered up with blacktop. The rest of the street is brick. Respondent, just under six years of age, lived east of this intersection, at 2123 Benton Street. Upon being sent by her mother to the grocery store at the northwest corner of the intersection, respondent walked west on the north side of Benton to the intersection, crossed 22nd Street and went into the store. While she was in the store, Pevely's truck pulled up to the northwest corner and parked at an angle so that the front end was headed southwest and was out into Benton, while the rear and extended northeast and, being about 25 feet long, extended out into the middle of 22nd Street with the result that in walking across 22nd Street from the northeast corner to the northwest corner, the path was blocked. There was no marked crosswalk. Automobiles were parked at the east and west curbs of 22nd Street so that only the northbound lane of traffic on 22nd Street was clear. The Bradshaw automobile was proceeding northwardly on 22nd Street. It was a bright, dry day.
The respondent's mother testified that about ten minutes after she had sent the respondent to the store, a neighborhood child came to the house and told her respondent had been run over, and that on arriving at the scene she found her daughter lying on the street close to the east curb in front of 2504 22nd Street. She further testified that respondent's injuries were to the right side of her face, her right leg and her right hip, although there were some marks to the left side of her face; that though there was no marked crosswalk, respondent was taught to cross at the corner, and that there was more pedestrian traffic around this corner on Saturday but less vehicle traffic; the witness Brown testified as to the location of the Pevely truck, gave its size as about 25 feet long, that it was solid and could not be seen through, that the respondent was lying about 20 or 25 feet north of the truck on the opposite side of the street after the accident, that the Bradshaw automobile was about 10 to 12 feet south of respondent. The witness Bronsky was sitting at the window in his house at 2506 North 22nd Street, and hearing a loud thump, went to the door and saw the respondent's body rolling across the street. He stopped her before her head hit the curb. At the time she was rolling across the street she was approximately in front of 2502 North 22nd Street. He first saw respondent when she was about 2 1/2 feet east of the center of 22nd Street, rolling toward the curb. He further testified that the northernmost parked car on the east side of the street was the third car from the intersection, and that respondent was lying about 4 feet north of the front of that car, and in making that estimate he assumed a length of 17 or 18 feet per car. The witness Davis was standing by the tavern located on the southeast corner of the intersection. The first thing he heard was brakes squealing and he looked up and saw respondent rolling out past the right side of the car to the east curb. When he first saw the Bradshaw car, it was stopped in the middle of 22nd Street, with the car out of, or north of, the intersection. The respondent was 'very near' the car. He too confirmed the truck's location and position. The witness Lois Johnson testified she was sitting on the front steps of 2508 North 22nd Street with her husband and Lois Obards at the time of this occurrence. She first saw the respondent when she was up in the air, and at that time the front end of the Bradshaw automobile was just barely clearing the back end of the truck and was still moving. She heard no horn and at first thought the object in the air was a box that had fallen off of the truck. The witness estimated that the object she first thought was a box was at the most 2 or 3 feet north of the truck and was over the hood of the automobile. She further testified that children used 22nd Street as a playground. The witness Potrzeboski, the respondent's aunt, was working in the tavern at the southeast corner of the intersection on the date of this occurrence. She saw the respondent walking to the store and then a little later heard brakes and a thud. When she went to the scene, she saw damage on the car on the hood on the driver's side extending almost to the center of the hood. She saw skid marks on the blacktop that covered the center portion of 22nd Street. These marks were lined up with the car and to the south of it. The driver's side of the car was approximately 'astraddle' the blacktop when she saw it although it would not be necessary to drive 'astraddle' the blacktop to get by, even with the truck parked as it was and the cars parked on the east curb on 22nd Street north of Benton as they were.
The witness Bilhorn, a registered professional engineer, was asked in what distance a 1950 2-door Plymouth automobile driven at 15 mph on a dry blacktop surface, assuming 3/4 second for reaction time and further assuming the automobile was in a fair mechanical condition, could be stopped with safety to its driver and others on the street. His answer was that 20 to 25 feet would be the minimum. He was asked about stopping distance at 20 mph, and gave his answer at 22 to 28 feet.
Respondent's counsel read into the record the following, from Volume 1 of the Revised Code of the City of St. Louis, 1958, Chapter 69, Article 4, Section 50:
He also read into the record Chapter 69, Article 1, Section 1, Crosswalk, as follows:
'That portion of the roadway ordinarily included within the prolongation of the curb, a property line at intersection or any other portion of a roadway, clearly indicated for pedestrian crossing by line or other marks on the surface.'
This respondent then testified that she remembered nothing about the occurrence and rested her case.
Pevely presented its motion for a directed verdict, as did Bradshaw. Upon these motions being overruled, Bradshaw's counsel indicated he had some evidence to offer, and counsel for Pevely asked that the jury be instructed to disregard such evidence in deliberating on the case against Pevely. This the trial court refused, and counsel for Bradshaw proceeded to put on evidence on her behalf. Much of that evidence had to do with the respondent's recovery from the effects of her injuries and other matters that are not at issue on this appeal. When Bradshaw's counsel called Mrs. Obards to the stand, Pevely's counsel renewed his objection to such testimony being allowed to affect the case against Pevely and his request that the jury be instructed to limit such evidence to the case against Bradshaw. The objection was overruled and the request denied.
Mrs. Obards testified that she was sitting on the front steps of Mrs. Johnson's house with her on the occasion in evidence and, after confirming the position of the truck, stated that she saw the respondent come from the door of the store and proceed out into the street, that respondent was skipping and running 'as a child will', that when the respondent entered the street, the witness looked to the south to 'see if she was in the clear' and when she glanced back the respondent was already out from behind the truck; that respondent was about a child's arm's length away from the rear of the truck when she came out from behind it, that at that time the front of the Bradshaw automobile was even with the box type body of the truck and traveling at about 20 miles per hour on the right hand side of an imaginary center line on 22nd Street; that respondent had reached a point just past the imaginary center line of the street and just in front of the automobile when she was struck, that the automobile was then about one-half or one-third on the blacktop and the rest of it was over the...
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