Walsh v. Southtown Motors Co.

• Decision Date: 08 September 1969
• Docket Number: No. 53861,No. 1,53861,1
• Citation: 445 S.W.2d 342
• Parties: Daisy E. WALSH, Respondent, v. SOUTHTOWN MOTORS COMPANY and Robert J. Saari, Appellants
• Court: Missouri Supreme Court

Page 342

445 S.W.2d 342

Daisy E. WALSH, Respondent, v. SOUTHTOWN MOTORS COMPANY and Robert J. Saari, Appellants.

No. 53861.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1969.

Rehearings Denied Oct. 13, 1969.

Robert L. Shirkey, Fred Mancuso, Kansas City, for respondent.

Byron J. Beck, Ronald C. Spradley, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for defendants-appellants.

HOUSER, Commissioner.

Action by Daisy Walsh for damages for personal injuries sustained as a result of having been struck by an automobile while walking across a city street. The automobile, owned by defendant Southtown Motors Company, was being driven by defendant Robert J. Saari. A trial jury returned a verdict for plaintiff against both defendants for $30,000. Both defendants appealed.

Plaintiff submitted her case to the jury on primary negligence--excessive speed. Defendants submitted the defense of contributory negligence in failing to keep a careful lookout.

Troost Avenue in Kansas City runs north and south. It is level, straight, and has an asphalt surface in good condition. 51st Street runs east and west. At their intersection Troost is 50 feet wide; 51st is 26 feet wide. Troost is a through street, four lanes wide. Two lanes are for northbound traffic. Two lanes are for southbound traffic. A painted centerline separates the north and southbound lanes. The accident occurred on Troost just a few feet north of this intersection, after dark at 8:15 p.m. on July 12, 1966. The intersection was lighted by street lights; the streets were dry; the weather was clear; the speed limit on Troost at this point is 25 m.p.h.

Plaintiff, a 69-year-old lady, lived east of the intersection. On her way home from a shopping trip she alighted from a southbound bus at the northwest corner of the intersection. Traffic on Troost was heavy that evening. She had to wait for 10 minutes for traffic to clear before she could cross the street to go home. As she was walking east and after she had entered the easternmost of the two northbound lanes she was struck by the northbound automobile driven by defendant Saari.

Plaintiff testified as follows: Before she stepped off the curb, after waiting 10 minutes for traffic to clear, she looked both ways, north and south. Troost is 'a pretty busy street, generally.' She was wearing a dark plaid dress, a navy blue straw hat and blue shoes. She had a clear vision up and down the street. Her hearing was good; her eyesight fine; there was nothing to obstruct her vision. She could see down to 52nd Street which, according to defendant Saari was a distance of 'over six hundred feet.' There was 'not too much' traffic moving up Troost at the time. She saw no vehicles as far down as 52nd Street; no vehicles that 'caused (her) any concern.' She did not see any cars as she started across Troost and did not see the reflection of any headlights. She walked at an ordinary, normal speed. After she stepped off the curb she looked 'one time' and then proceeded straight across the street, looking straight ahead directly to the east, and never looked to the south again. In this manner she crossed the two southbound lanes, came to the centerline of Troost, proceeded across the center of Troost and across the northbound lane nearest the centerline, and walked on into the easternmost northbound lane, and 'never looked to the south at any time as (she was) walking across the street.' She never did see the automobile that struck her. If she had seen it she could have stopped. She never did see any other vehicle coming north in the northbound lane nearest the centerline, and did not see the car that stopped in the intersection to let her go on across. She saw no headlights; heard no squealing of tires and had no conscious recollection of being struck. There was no reason why she could not have looked as she was crossing the street.

Defendant Saari, called as a witness by plaintiff, testified that he was traveling north in the east lane for northbound traffic, at a speed of 'at least' 25--30 m.p.h. with his car headlights on. A car driven by Mary Caldwell was proceeding ahead of him in the west lane for northbound traffic. He saw the Caldwell vehicle stop approximately in the middle of the intersection of 51st Street and Troost. At that time Saari for the first time observed plaintiff 'coming around in front of' the Caldwell car, looking down at the roadway. She apparently never did look up at Saari. He 'slammed on the brakes' in an 'emergency manner' as hard as he could but was unable to stop before striking plaintiff. The left front of the car struck plaintiff. The right-hand tire marks ran along five feet west of the east curb of Troost.

The first thing that came to the attention of Gary Church, driver of the automobile following defendant Saari, was plaintiff, who was about at the line dividing the two northbound lanes, 'stepping out from in front of the Caldwell car,' 'walking looking down at the road.' The brake lights of Sarri's car came on; plaintiff looked up and to her right and that is when the car hit her.

Mary Caldwell, approaching the intersection at 20--25 m.p.h. heard occupants of her car yell that there was a lady in the middle of the street. The front of the Caldwell car was then at the south edge of the intersection and plaintiff was about 'where the centerline of Troost would be.' Mrs. Caldwell put on her brakes and stopped 'almost to the north side of the intersection.' Plaintiff hesitated. Just as the Caldwell car stopped plaintiff started running across the street with her head down 'and never looked up.' She ran in front of the Caldwell car. She was in the middle of Troost when she started running. The car to Mrs. Caldwell's right, going 20--25 m.p.h., 'come around and hit her.' It was so dark that one could not read a newspaper by the street lights.

Mrs. Caldwell's 15-year-old daughter said it was 'a little dusky--', hard to see; not real dark and not light. She was 'a shadow. It looked like the bottom of a car. And then this woman came in sight and I yelled at mama to stop.' The front of the Caldwell car was then at the south edge of the intersection, and plaintiff was at the centerline of Troost. The brakes were applied and the car stopped. When the Caldwell car stopped plaintiff hesitated and then started running, looking straight down. She never looked up. When plaintiff went by in front of the Caldwell car she was 2 or 3 feet north of the front of the car.

Other testimony indicated that the overall length of the skid marks was 89 feet, on the basis of which the speed of the car was computed at 40.7 m.p.h.; that plaintiff, walking at an average speed of 2.5 m.p.h. or 3.6 feet per second would take 12 seconds to traverse 44 feet across Troost to the place of the impact; and that an automobile traveling at 40 m.p.h. would travel at the rate of 59 feet per second, or 708 feet in 12 seconds.

An ordinance provided that 'The driver of any vehicle shall yield the right of way to any pedestrian lawfully crossing or on the roadway as hereinafter provided in this chapter, and shall at all times exercise the utmost care and caution to avoid striking a pedestrian, even though such pedestrian is not lawfully crossing or on the roadway. (b) Whenever any vehicle has been stopped to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.'

Another ordinance provided that 'When traffic control signals are not in place or not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. A pedestrian's right of way in a crosswalk is modified under the condition and as stated in section 58.510(b).'

The first question is whether plaintiff was guilty of contributory negligence as a matter of law. Appellants argue that under the ordinance a pedestrian may not suddenly leave a place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield; that plaintiff was in a position of safety, protected against northbound vehicles, until she reached the centerline of Troost ¹ and continued to be safe from northbound traffic until she passed from in front of the stationary Caldwell automobile into the easternmost northbound lane; that at that moment she had a duty under the ordinance to look to the south; ² that she could not go blindly forward without again looking to the south in reliance upon the presumption that vehicles in the easternmost lane would be driving lawfully and not at an excessive rate of speed, ³ and that having walked or run from the place of safety (shielded by the stationary Caldwell car) into the farthese lane without looking, she was guilty of contributory negligence as a matter of law. ⁴ Appellants further argue that plaintiff not only had a duty to look, but also had a duty to see the automobile which struck her, which was in plain view when she reached the dividing line between the two northbound lanes; that a glance to her right would have disclosed the oncoming automobile and that it was impossible for the driver to yield and that there was not time for her to safely cross the last lane. ⁵ Appellants quote from Morris v. Duker, Mo.Sup., 414 S.W.2d 77, 83(6), a pedestrian case decided under the same ordinance, in which the evidence justified a jury finding that plaintiff was in a place of safety, but in which we did not hold as a matter of law that the...