Triller v. Hellwege, 49955
| Decision Date | 09 December 1963 |
| Docket Number | No. 49955,No. 1,49955,1 |
| Citation | 374 S.W.2d 104 |
| Parties | Wanda Lee TRILLER, a Minor, by Joseph Triller, Next Friend, and Joseph Triller and Mary Triller, Appellants, v. Rudolph HELLWEGE, Respondent |
| Court | Missouri Supreme Court |
Hale W. Brown, Kirkwood, Thomas W. Wehrle, Clayton, for appellants.
Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for respondent.
HOUSER, Commissioner.
This is an action in two counts arising out of a collision between an automobile and an eight-year-old girl on U. S. Highway 6Sec. in Perry County. In Count 1 Wanda Lee Triller sued for $100,000 for personal injuries. In Count 2 her parents sued for $15,000 damages for loss of earnings, hospitalization expenses, medical costs and drugs. The jury rendered a verdict for defendant. Judgment was entered for defendant on the verdict.
Plaintiffs gave notice of an appeal 'to the St. Louis Court of Appeals from the Overruling of their Motion for a New Trial * * *.' On its own motion the court of appeals, lacking jurisdiction, transferred the cause to this Court. Defendant has filed a motion to dismiss on the ground that the appeal was taken from an unappealable order, to a court without jurisdiction, and that the notice of appeal is insufficient to confer jurisdiction upon this Court. While the appeal should have been taken from the judgment rendered on the verdict and not from the order overruling the motion for new trial, Supreme Court Rule 82.04, V.A.M.R., and while the mistake has caused unnecessary inconvenience and delay, we consider that plaintiffs intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the overruling of the motion for new trial instead of the judgment rendered on the verdict as the order from which the appeal was intended to be taken, and it will be so treated. Terrell v. Missouri-Kansas-Texas R. Co., Mo.Sup., 303 S.W.2d 641, and cases cited, l. c. 649. Section 477.080, V.A.M.S., provides that in the event a case is improperly sent on appeal from a lower court to a court of appeals when the same should have been sent to the Supreme Court it is the duty of the court of appeals to transfer it to the Supreme Court, and the case shall be proceeded with in the court to which it is transferred 'as if the same had gone there directly from the trial court.' We have jurisdiction by reason of the transfer order of the court of appeals and because the appeal involves more than $15,000. The motion to dismiss the appeal is overruled.
The case was submitted to the jury on humanitarian failure to stop, slacken speed, swerve or warn. Appellants, hereinafter designated plaintiffs, have assigned certain procedural errors. Respondent, hereinafter designated defendant, contends that the judgment is free of error, but that any procedural errors would be harmless since plaintiffs did not make a submissible case of humanitarian negligence.
U.S. Highway 61, a 20-foot concrete highway, runs generally north and south through Longtown. The weather was clear and dry. The accident occurred at 10 or 10:30 a.m. Wanda Lee's parents were building a house in Longtown on the east side of the highway. Across the highway and somewhat south of the house under construction there was a grocery and hardware store. Wanda Lee bought some candy in the store, and when she left she dashed out of the door. At that time defendant, driving a 1949 Chevrolet, was proceeding south through Longtown on the highway. Wanda Lee jumped off the porch of the store, ran toward the highway, started across and was struck by the left front fender of defendant's automobile near the center line of the pavement. Defendant's car left skid marks 10 feet long, 2 feet east of the center line.
Wanda Lee did not recall getting hit by an automobile, remembered nothing about the accident, or whether in her deposition she had stated that she came out of the door of the store and ran across the street; that she jumped off the porch; that she stopped and looked; saw a car coming, and thought 'she could beat him.'
These parts of defendant's deposition were introduced as admissions against interest as a part of plaintiffs' case:
* * *
* * *
* * *
* * *
* * *
* * *
'
* * *
* * *
Plaintiffs' traffic engineer testified as follows: The distance between the edge of the store porch and the edge of the pavement was 26 feet 1 inch. The average running speed of an eight-year-old girl is approximately 6 to 8 m. p. h., which is 9 to 12 feet per second. It would take a young girl, at a speed of 8 m. p. h. two and one-third seconds to run from the edge of the porch to a position in the path of the automobile; four seconds to run from the porch to the center line of the highway. An automobile traveling 25 m. p. h. travels 37 1/2 feet a second and travels 44 feet a second at 30 m. p. h. In four seconds an automobile going 25 m. p. h. would travel 140 feet, and at 30 m. p. h. it would travel 176 feet. Reaction time is 3/4 of a second. At 25 m. p. h. a car travels 27 1/2 feet during reaction time. The stopping distance of a 1949 Chevrolet on a concrete surface at 25 m. p. h., including reaction time, is 57 1/2 feet; at 30 m. p. h. total stopping distance is 76 feet. At 25 m. p. h. considering the deceleration factor, it would take defendant 1.6 seconds to travel 30 feet during a stop. Considering the reaction time of 3/4 of a second and the stopping time of 1.6 seconds, it would take 2.35 seconds for defendant to stop after plaintiff started moving toward his path. Assuming that plaintiff started from the front porch and that defendant had a reaction time of 3/4 of a second, and that he was traveling 25 m. p. h., it would take 2 1/3 seconds both for him to stop and for plaintiff to get there.
Defendant, 65 years old at the time of the accident, testified to these facts: Approaching the store as he drove south in Longtown he was traveling 25 m. p. h. at all times looking forward ahead and to his right, observing the highway and objects alongside the road. He saw Wanda Lee jump off the porch and she was running fast. At that time he was going 25 m. p. h., and was 25 or 30 feet from the point of impact. When he saw her jump off the porch he applied his brakes with all his might as hard as he could. After the car struck the girl it stopped 'right then,' right about where it hit her. The skid marks were over 20 feet long, in the southbound lane. Before the impact he was traveling in the right-hand land, and when he stopped he was 'very little' over the center line, which was caused by the car skidding. On cross-examination he testified that he was 25 or 30 feet back when he saw her jump off the porch; and that she was 25 feet from the center of the pavement when he first saw her; that it was 15 or 20 feet from the porch to the edge of the highway and another 10 feet to the middle of the highway. He did not know whether any cars obstructed his view or whether she ran out from behind another car. He did not know how far he was from her when she ran onto the pavement. When he put his brakes on she was running towards the highway. He did not blow his horn, but swerved just a little and hit her just about the center line. He did not swerve his car to the right to miss her because there was a car sitting there. His tires and brakes were in good condition and his horn worked.
Ernest Bergman saw the girl run out into the highway when defendant's car was 15 feet away, going 20 m. p. h. The girl was about 2 feet across the center line when the car hit her. Defendant's witness Edgar Benson, who was following defendant's car, testified that defendant was traveling 20 or 25 m. p. h., and that he saw the girl standing next to the shoulder. Witness Bergman testified that she did not 'stand out there.'
We are of the opinion that plaintiffs made a submissible case of humanitarian failure to stop, considering the evidence in the light most favorable to plaintiffs, as we are obliged to do in this case. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628. Defendant's duty to act arose when Wanda Lee came into a position of imminent peril. She came into a position of imminent peril when defendant saw, or by the exercise of the highest degree of care could have seen, Wanda Lee moving toward the path of the automobile, apparently intending to continue into its path and apparently oblivious of its approach. Williams v. Ricklemann, Mo.Sup., 292 S.W.2d 276; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. In this case the jury...
To continue reading
Request your trial
-
Dillon v. Hogue
...Mike was in imminent peril, when defendant first sighted him (Mike) in the west ditch and running toward the highway. Triller v. Hellwege, Mo., 374 S.W.2d 104, 107(4). In fact, the mathematical calculations in defendant's brief are made on that assumption. Thus, defendant's counsel say that......
-
Allison v. Sverdrup & Parcel and Associates, Inc.
...Railroad Co., 421 S.W.2d 540 (Mo.App.1967); State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740 (Mo.1964); Triller v. Hellwege, 374 S.W.2d 104 (Mo.1963). See also, the many cases cited at 2 Mo.Digest, Appeal & Error, §§ 417-422. We are aware of the cases cited to us by Sverdr......
-
Carter v. Consolidated Cabs, Inc.
...in the cases, see, e.g., Leap v. Gangelhoff, Mo., 416 S.W.2d 65, 67--68(1--6); Dillon v. Hogue, Mo.App., 381 S.W.2d 599; Triller v. Hellwege, Mo., 374 S.W.2d 104; Losh v. Benton, Mo., 382 S.W.2d 617; McCarthy v. Wulff, Mo., 452 S.W.2d 164; Williams v. Ricklemann, Mo., 292 S.W.2d 276; Murphy......
-
Shepard v. McGougan
...Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938 (1947); Williams v. Ricklemann, 292 S.W.2d 276, 281(8) (Mo.1956); Triller v. Hellwege, 374 S.W.2d 104, 107(4) (Mo.1963); Murphy v. Land, 420 S.W.2d 505, 509(10) (Mo.1967). Michael was not in a position of immediate danger until he started f......