Weis v. Melvin

• Decision Date: 11 April 1949
• Docket Number: 40585
• Citation: 219 S.W.2d 310
• Parties: John E. Weis, Respondent, v. Mrs. E. E. Melvin, Appellant
• Court: Missouri Supreme Court

219 S.W.2d 310

John E. Weis, Respondent, v. Mrs. E. E. Melvin, Appellant

No. 40585

Supreme Court of Missouri, Second Division

April 11, 1949

From the Circuit Court of Jackson County, Civil Appeal, Judge Allen C. Southern

Affirmed

OPINION

Bohling C.

This suit is the outgrowth of an automobile collision at a street intersection. John E. Weis asked $10,700 for personal injuries and property damage. Mrs. E. E. Melvin, defendant joined with her answer a counterclaim asking $250 damage to her automobile. Plaintiff submitted his case on the humanitarian theory. The verdict was for defendant on plaintiff's causes of action and for plaintiff on defendant's counterclaim. Plaintiff's motion for a new trial was sustained on the ground error was committed in giving defendant's sole cause instruction. Defendant appeals, and contends the instruction is proper.

Plaintiff contends that there was not sufficient evidence upon which to base defendant's sole cause instruction; that insufficient facts are hypothesized therein to warrant a finding defendant was not negligent and that plaintiff's negligence was the sole cause of the collision; and that the instruction conflicts with plaintiff's humanitarian instruction and is confusing and misleading.

The collision occurred about 10:00 o'clock February 2, 1946 on a clear dry morning, in the southwest quadrant of the intersection of Morningside Drive, a north and south street and 63rd street, an east and west street, in Kansas City, Missouri. Morningside Drive slopes to the south as one proceeds south and across 63rd street; and 63rd street is downgrade for east-bound traffic for some distance west of Morningside Drive and also east of the intersection. Sixty-third street is a heavily traveled street, 51 feet wide. Morningside Drive is 44 feet wide. A stop or slow sign exists for traffic on Morningside Drive. Defendant thought Morningside Drive was about four feet narrower south of the intersection than north of it. Other evidence established the point of impact as 31 feet south of the north curb line of 63rd street and 11-1/2 feet east of the wwest curb line of Morningside Drive. Plaintiff's car came to a stop 85 feet east of the point of impact.

Plaintiff testified to the following effect: He was driving his 1941 Packard coupe not over 25 miles an hour east on 63rd street. He slowed down to 20 miles an hour for the Morningside Drive intersection. When he was just about to enter the intersection or was at it he saw defendant's car, traveling south, two or three car lengths north of the north curb line of 63rd street. He looked to the south, saw no other cars, considered the intersection was clear, and proceeded across, traveling straight east. The next he knew of defendant's car, it struck his coupe just to the rear of the left door, damaged the lock and caused the door to fly open. He lost control of his car. The right front wheel struck the south curb of 63rd street about 10 or 15 feet east of the east curb of Morningside Drive, swerved the coupe around, and caused plaintiff to fall out. His car then "backed" down the 63rd street decline until its rear wheels passed over the north curb of 63rd street onto the parkway, where it stopped.

Defendant, the only other eye witness, testified she drove her Ford coupe south 20 miles an hour on Morningside Drive, slowed down for 63rd street to 5 or 6 miles an hour, and changed gears; that she looked east, saw some approaching traffic but nothing to interfere with her crossing. She looked east, south, and west. She could see 175 feet west along 63rd street. She saw no approaching vehicles. The intersection was clear and, taking another glance east and south, she proceeded to cross, traveling not over 10 miles an hour. While crossing, she accelerated her speed, there being no occasion to slow down, stop, or sound any warning. Defendand could stop her Ford instantly at 5 to 6 miles an hour. She testified she was looking directly south as she was crossing 63rd street. She never did see plaintiff's automobile until at or after the instant of impact: "Q. Now, when was the first time you saw this Weis car? A. I never did see it. * * Q. Did you see his car at the time of the impact? A. No, sir." A good portion of plaintiff's car passed in front of defendant's car.

It is the duty of motorists to maintain a careful and vigilant lookout ahead and laterally ahead. Wright v. Osborn, 356 Mo. 382, 386[1], 201 S.W.2d 935, 938[2]; McCombs v Ellsberry, 337 Mo. 491, 497[2], 85 S.W.2d 135, 137[2]; Oliver v. Morgan (Mo.), 73 S.W.2d 993, 996[6]. See citations in above cases and Mo. R. S. A., R. S. 1939, § 8383, n 20. Other things being equal, the motorist on the left is to yield the right-of-way to the motorist on the right at highway and street intersections. Mo. R. S. A., R. S. 1939, § 8385(1). As defendant approached and as she proceeded across the intersection the law placed upon her a duty to watch for traffic on her right, the direction from which she especially would expect traffic as she approached the center line of 63rd street. She traveled the 31 feet after entering the intersection to the point of impact looking directly to the south and without looking for traffic on her right. The highest estimate of record of the speed of plaintiff's automobile did not exceed 25 miles an hour. Plaintiff's automobile was within defendant's range of vision to the west when she reached the intersection and as she crossed the...