Vaccaro v. Moss, 31816

• Citation: 410 S.W.2d 329
• Decision Date: 20 December 1966
• Docket Number: No. 31816,31816
• Parties: Vita VACCARO, Plaintiff-Appellant, v. William MOSS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 329

410 S.W.2d 329

Vita VACCARO, Plaintiff-Appellant, v. William MOSS, Defendant-Respondent.

No. 31816.

St. Louis Court of Appeals, Missouri.

Dec. 20, 1966.

Edward F. Downey, John J. Delabar, Lawrence E. Ehrhart, Jack V. Hoskins, St. Louis, for plaintiff-appellant.

Adolph Schwartz, St. Louis, for defendant-respondent.

RUDDY, Judge.

This case comes to the writer on recent reassignment and is an action to recover damages for personal injuries and automobile damage, allegedly sustained by plaintiff as a result of a collision between automobiles operated by plaintiff and defendant. The jury rendered its verdict in favor of plaintiff and awarded her $1600 for personal injuries and $400 for property damage. The trial court overruled defendant's motion for judgment in accordance with his motion for a directed verdict, but sustained defendant's motion for a new trial on the grounds that the evidence did not support the giving of instruction No. 3 on humanitarian negligence and also that said instruction permitted the jury to find that defendant could have avoided the collision by 'stopping' his car and 'slowing it down' when there was no evidence to support a finding that the collision could have been avoided by defendant 'slowing' his automobile. This appeal is by plaintiff from the order and judgment of the trial court sustaining defendant's motion for a new trial.

Defendant contends that plaintiff did not make a submissible case under the humanitarian doctrine, which was the only negligence submitted, and that his motion for a directed verdict at the close of all of the evidence should have been sustained. If this contention of defendant is true the alleged error in the giving of plaintiff's instruction No. 3, if any, is immaterial. Davis v. Quality Oil Co., Mo., 353 S.W.2d 670.

In determining whether plaintiff made a submissible case under the humanitarian doctrine, we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant's evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant's evidence unfavorable to plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Davis v. St. Louis Public Service Company, Mo., 316 S.W.2d 494; Delay v. Ward, Mo.App., 262 S.W.2d 626. While a plaintiff is ordinarily bound by her own personal testimony, it has often been held that she is not conclusively bound by her own testimony or that of her own witnesses as to mere estimates of time, speed, and distance. Meier v. Moreland, Mo., 406 S.W.2d 97, Brooks v. Stewart, Mo., 335 S.W.2d 104, 81 A.L.R.2d 508. Further, plaintiff is not in all events conclusively bound by the adverse testimony of her witnesses, but she or other witnesses may testify to a contradictory state of facts, leaving the whole issue to be resolved by the jury in the light of all the facts and circumstances in evidence. McDonough v. St. Louis Public Service Company, Mo., 350 S.W.2d 739; Delay v. Ward, Mo.App., 262 S.W.2d 626; Goggin v. Schoening, Mo.App., 199 S.W.2d 87.

Applying the above stated rules governing our review we think the following summary a fair statement of the evidence which we feel is sufficient to support a submission under the humanitarian doctrine.

The automobile collision in which plaintiff was injured occurred on April 4, 1961, at 5:00 P.M. on Penrose Avenue in the City of St. Louis near its intersection with Grand Avenue in said city. It was daylight at the time. Plaintiff was driving her 1961 Chevrolet automobile west on Penrose and defendant was driving his 1959 Chevrolet Station Wagon north on Grand. Grand is a four lane north-south avenue and Penrose is a thirty foot east-west avenue with no centerline marking. The surface of both avenues is of blacktop or asphalt material. There is no traffic control on Grand, but there is a stop sign for west bound traffic on Penrose at Grand. The sign is located approximately eight to ten feet east of the east curb line of Grand. The collision occurred close to this intersection as defendant turned right into Penrose. The left fenders of both vehicles collided. After the impact plaintiff's car was headed west and defendant's station wagon was headed in a northeasterly direction at an angle to the street. The rear of his station wagon extended about one and one-half feet to four feet into Grand. Defendant testified that the overall length of his Chevrolet Station Wagon was eighteen feet, six inches and was six feet, six inches in width. Plaintiff's witnesses testified that her Chevrolet Sedan was seventeen to eighteen feet in length and six feet in width. Plaintiff's 14 year old son was a passenger in her car and defendant had one passenger in his car. Cars were parked in the east parking lane of Grand, but defendant testified that none were parked within seventy-five to eighty feet immediately south of the south curb of Penrose. Cars were parked on both sides of Penrose. A car was parked at the south curb of Penrose close to Grand, how close to Grand was never stated in the testimony. Plaintiff said a car was parked to her right at the north curb of Penrose before she got to the stop sign. At one place in her testimony she stated a car could have passed between her and the curb on her right. At another point in her testimony she said there was not enough room for another car to pass on her right. However, other witnesses for plaintiff stated that there was room on plaintiff's right for another car to pass between her car and the curb when she was stopped at the stop sign.

Prior to the collision plaintiff had been driving westwardly on Penrose with the center of the street to her left. In her testimony she maintained that she was left or north of the center of Penrose. Her son testified that as she was driving she was either on the center of Penrose 'or she was either or a couple, three or four inches on the other side.' Plaintiff stopped her car a foot or foot and one-half east of the stop sign for west bound traffic on Penrose. She said she was north of the center of Penrose when she stopped. She had intended crossing Grand to proceed west on Penrose to visit her daughter who lived west of Grand on Penrose. When she stopped her car near the stop sign she could see that the traffic passing in front of her on Grand was unusually heavy and she said she waited about three or four minutes prior to the collision, intending to proceed west across Grand when the busy traffic subsided. She first saw the station wagon of the defendant when she looked south, at which time he was 'about three or four houses' away from Penrose. Plaintiff's son said traffic on Grand was heavy and that his mother was stopped a foot or foot and one-half east of the stop sign about three or four minutes. Plaintiff thought defendant intended to turn east on Penrose 'by the side of me * * * left side.' She said that defendant's car 'got right on top' of her and hit the left front fender of her car. She said the impact did not push her car to the side or backwards. A police officer with the Accident and Investigation Department of the St. Louis Police Department and plaintiff's son testified that there was enough room for defendant's car to pass with safety between plaintiff's car and the cars parked on the south curb of Penrose. Both said there were ten to twelve inches 'to spare.' Defendant said that when he was driving his car he thought he could not drive between plaintiff's car and the cars parked at the south curb of Penrose, but after he got out of his car and looked the 'situation over' he thought he could have made it. The police officer said defendant's view of plaintiff's car was unobstructed for a distance of fifty or sixty feet south of Penrose on Grand. Plaintiff's son said he could see defendant's station wagon when it was eighty feet south of Penrose and said defendant was then in the lane west of the curb lane. He said defendant's car was going 20 m.p.h. at that point and was going 17 or 18 m.p.h. when it hit his mother's car, which was still in a stopped position. He thought defendant 'hit his brakes' when he was seven or eight feet from his mother's car.

Defendant, Moss testified that he was driving north on Grand at 20 m.p.h., that he reduced his speed to 10 m.p.h. as he turned right into Penrose, and that he then saw plaintiff's car thirty or forty feet east on Penrose about one foot over on his side of Penrose. He said he was on the south side of Penrose and that plaintiff's car was traveling at a speed of 20 m.p.h. He further testified that he applied his brakes hard at this point and stopped his vehicle in approximately ten feet but that plaintiff continued west and struck his vehicle while it was stopped. Defendant said he was driving north on Grand Avenue in the lane next to the curb lane. He was familiar with the intersection of Grand and Penrose and knew that Penrose was a narrow street and that it was only wide enough for four cars. He knew where the stop sign was for westbound traffic on Penrose east of Grand. He knew that he was going to make a right turn off of Grand onto Penrose. In his cross-examination he said that he was around seventy feet away from the intersection when he slowed his car at which time he turned on his right turn signal. He said it was at this time that he began to slow his car down to 10 m.p.h. He said that he began turning into Penrose when he had decelerated his car to 10 m.p.h. Thereafter, he gave the following testimony:

'Q. When you were able to decelerate the car to a speed of ten miles an hour where was your car with relation to the south curb of Penrose?

'A. Where was my car? I would say my car was out about, say, the front of it I would say approximately twelve or thirteen feet from the curb--to the right. The...