Williams v. M. C. Slater, Inc., 40529

• Citation: 590 S.W.2d 357
• Decision Date: 25 September 1979
• Docket Number: No. 40529,40529
• Parties: Ronnie WILLIAMS, Appellant, v. M. C. SLATER, INC., Respondent.
• Court: Missouri Court of Appeals

Page 357

590 S.W.2d 357

Ronnie WILLIAMS, Appellant, v. M. C. SLATER, INC., Respondent.

No. 40529.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 25, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 16, 1979.

Raymond Howard, Howard, Singer & Meehan, St. Louis, for appellant.

Donald L. James, St. Louis, for respondent.

REINHARD, Presiding Judge.

Plaintiff appeals from a judgment entered by the Circuit Court on a jury verdict favoring defendant. His claim for damages arose out of a collision between his automobile and a truck driven by defendant's driver, Marvin Moore.

On appeal plaintiff's one contention of error is that the court should have given his tendered instruction on failure to keep a careful lookout.

The accident occurred at the intersection of north Broadway and South Calvary in the City of St. Louis. North Broadway is a two-way street with two northbound and two southbound lanes. South Calvary intersects with north Broadway from the west before it dead-ends, thus forming a "T-intersection". At the time of the accident there were no traffic control signs or signals in either direction on north Broadway. According to the plaintiff, on north Broadway the center line lies approximately 44 to 45 feet from the west curb.

On January 23, 1976 at approximately midnight, Marvin Moore drove defendant's fifty-five foot tractor-trailer south in the curb lane of north Broadway. The truck contained skidded coil and wire and weighed over 40,000 pounds.

Plaintiff contends he was traveling north on Broadway in the lane nearest the center line. He testified that upon reaching the intersection of South Calvary, he stopped, turned on his left turn signal and began to turn left. At that moment he saw defendant's truck approximately eight car lengths away. For his calculation, plaintiff estimated a car length to be fifteen feet. Plaintiff testified that defendant's truck was traveling south at approximately 25 to 30 miles per hour in the curb lane. Plaintiff saw no other traffic in the southbound lanes. When plaintiff began his left turn he was traveling about 3 to 4 miles per hour. However, he accelerated to 15 to 20 miles per hour just prior to the collision, thereby attaining his highest speed after reaching the curb lane. Plaintiff testified that the truck did not slow down but in fact increased its speed to in excess of thirty miles per hour just prior to the collision. The truck struck plaintiff's vehicle near the rear bumper on the passenger side. At the time of the collision, the front half of plaintiff's vehicle had reached South Calvary and the rear half was in the curb lane of north Broadway. According to plaintiff, the truck came to a stop when the rear of the truck reached a point fifteen feet south of South Calvary Street. The collision occurred approximately four seconds after plaintiff began to turn.

Moore testified he was traveling south in the curb lane of north Broadway when he saw plaintiff's headlights. Moore first noticed the plaintiff when the plaintiff began to turn and come into his lane. At that time, he was traveling 25 to 30 miles per hour. Moore estimated that plaintiff was about six car lengths from him. From the time Moore first saw plaintiff until the time of the collision nothing blocked his view. Moore testified that he could not swerve at the time of plaintiff's turning because a car was passing his rig on the left. He immediately applied his brakes and swerved as soon as the car passed.

The collision occurred in the curb lane. Moore testified that there "wasn't much impact. My bumper struck the right rear of his bumper" and that his speed was reduced "just about to the point of stopping."

Plaintiff tendered an instruction on failure to keep a careful lookout which the trial court refused. An instruction on the alleged negligent failure to keep a careful lookout must not be submitted to a jury "unless there is substantial evidence from which the jury could find that in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle in time thereafter to have taken precautionary action." Hill v. Barton, 579 S.W.2d 121, 128 (Mo.App.1979). The submission of a lookout instruction is the failure to see and the failure to take action to avoid injury by any means supported by the evidence. Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978). "Having the means and ability to avoid a collision means not only the mechanical appliances . . . but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged (with negligence) to take effective action in avoidance." Zalle v. Underwood, 372 S.W.2d 98, 102 (Mo.1963). A driver's...