Wilson v. Toliver
| Decision Date | 09 September 1957 |
| Docket Number | No. 2,No. 45897,45897,2 |
| Parties | Kathleen L. WILSON, Administratrix of the Estate of Edward G. Jones, Deceased, Plaintiff-Appellant, v. Albert TOLIVER, Defendant-Appellant |
| Court | Missouri Supreme Court |
Russell Roberts, Kirksville, William Turpin, Bowling Green, Hess & Collins, Macon, for plaintiff-appellant-respondent.
Richard DeCoster, Canton, Thomas R. McGinnis, St. Louis, Charles E. Gray, St. Louis, for defendant-appellant-respondent Albert Toliver.
This is the second appeal in a suit for damages growing out of the collision of two automobiles. At the first trial the plaintiff and the defendant each submitted issues of primary negligence as well as humanitarian negligence. The jury found against the plaintiff on her cause of action and in favor of the defendant in the sum of $16,000 on his counterclaim. The plaintiff appealed and this court held that plaintiff's decedent and the defendant were both guilty of contributory negligence as a matter of law and that the submissions of primary negligence should have been refused. We further held that the defendant made a submissible humanitarian case on his counterclaim. The cause was reversed and remanded for a new trial. See Wilson v. Toliver, Mo., 285 S.W.2d 575.
Upon the second trial, both the plaintiff's cause of action and defendant's counterclaim were submitted solely under the humanitarian doctrine. The jury found in favor of each of the parties and awarded the plaintiff $2,106.03 which was reduced by remittitur to $1,100. The verdict for the defendant was in the sum of $15,000. Both parties have appealed.
The accident occurred on July 20, 1952, approximately one-half mile east of Lewistown, Missouri, at the intersection of Missouri highways numbers 6 and 16. Each of the parties introduced in evidence without objection a plat or diagram of the intersection. These exhibits, Plaintiff's Exhibit A and Defendant's Exhibit 1, complement each other and in the interest of clarity and a better comprehension of the physical facts they are reproduced herewith as a part of this opinion.
The exhaustive statement of facts in the first opinion, to which we refer, and the exhibits incorporated herein make unnecessary a detailed statement of facts at this time. Briefly, Mo. 6 runs due east from Lewistown for about one-half mile to its intersection with Mo. 16. At the intersection Mo. 6 turns southeast in a sweeping curve. Mo. 16, beginning at the intersection, runs due east, so that Mo. 6 west of the intersection and Mo. 16 are practically on a straight line due east and west. As shown by the exhibits, each highway is marked in the center by a dashed line painted white. The painted center line of Mo. 6 follows the curve of Mo. 6 through the junction. However, the center line of Mo. 16 ends at what would be the northern edge of the westbound traffic lane of Mo. 6 if extended. The heavier dashed lines on Plaintiff's Exhibit A were drawn to enclose and denote the area of the intersection common to both highways. These lines do not appear on the highway surface, as is apparent from Defendant's Exhibit 1.
The plaintiff's intestate, Edward G. Jones, age 68, was driving his 1949 Chevrolet automobile eastward from Lewistown on Mo. 6 intending to cross through the intersection and continue east on Mo. 16. With Mr. Jones in his car were his wife and a sister, Mrs. Bertha Garrett. The defendant Toliver, age 48, traveling alone, was driving his 1950 Hudson automobile westward on Mo. 6. Both highways, including the intersection, are blacktopped and are approximately 24 feet wide. Each car was traveling at approximately 50 miles an hour. The time was about 5:10 a. m. The day was bright and the pavement dry. The terrain at the intersection was comparatively level and there was no traffic or other objects to obstruct the vision of the operators of the two motor vehicles. They came into violent collision at a point in the intersection designated by the cross mark on Plaintiff's Exhibit A and by the circle on Defendant's Exhibit 1. The point of impact was 136 feet east of the western limit of the intersection, 36 feet from the eastern limit, which is a point where the two highways separate and diverge, 18 feet from the northern edge of the pavement and 22 feet from the southern edge of Mo. 16, all as shown on Plaintiff's Exhibit A. The Jones car laid down a single skid mark extending from west of the center line of Mo. 6 a distance of 53 feet to the point of impact. The Toliver car left double skid marks in the westbound lane of Mo. 6 a distance of 50 feet to the point of collision. These skid marks lead to the circle indicating the place of collision and were sketched by witnesses on Defendant's Exhibit 1.
The two automobiles met practically head on. The right side of the front end of each car bore the brunt of the impact. A highway patrolman testified that the alignment of the two cars at the time of collision was not more than 15 or 20 degrees off a straight line. By force of the collision the Toliver car rebounded six feet eastward and the Jones car about 26 feet westward. Jones and his wife were killed instantly, or nearly so. Mrs. Garrett received serious injuries but remained conscious. Mr. Toliver was severely injured and rendered unconscious.
It was admitted in evidence that an automobile running at 50 miles per hour travels a distance of 73 feet per second. It was also stipulated that the average reaction time in the application of brakes by the operator of an automobile is three-fourths of a second.
Plaintiff contends that the decision on the first appeal is not the law of this case because there was different and additional evidence at the second trial, in that the defendant testified that he 'realized that he was in danger, and that the plaintiff [Jones] was in danger, at a time when the plaintiff [Jones] was still south of the white line and before defendant had started to apply his brakes; that defendant did not take his eyes off of plaintiff [Jones] from the time plaintiff [Jones] was 150 feet west of the point of impact until the impact; and that defendant's car was in perfect mechanical condition.' We have examined the testimony at each trial carefully and do not find it substantially different.
As stated in the previous opinion, the term 'imminent peril,' as used in connection with the humanitarian doctrine, denotes that the peril must be certain, immediate and impending; it may not be remote, uncertain and contingent, and a likelihood or bare possibility of injury is not sufficient. Wilson v. Toliver, Mo., 285 S.W.2d 575, 583. It was not the mere presence of the Jones car on the highway that created imminent peril. Contingent or potential danger exists whenever two vehicles meet on the highway traveling in opposite directions, but that alone does not constitute the imminent peril which is the basic fact of the humanitarian doctrine. Toliver testified that Jones 'was holding to his side of the road when I first saw him, with no indications of doing anything else; and then without any signal or warning of any kind, he came across the centerline into my lane of traffic.' Read in its complete context, Toliver's testimony was not substantially different from that which he gave at the first trial. We adhere to our holding on the first appeal that 'a finding that defendant was oblivious of plaintiff's [Jones'] intention to proceed due east as plaintiff [Jones] first proceeded into the intersection was warranted.' 285 S.W.2d loc. cit. 583[13, 14].
The plaintiff also contends that the prior decision was palpably wrong, particularly in holding that Jones was guilty of contributory negligence as a matter of law. We have carefully re-examined the former opinion and we are convinced that the issues raised on that appeal were correctly decided. We adhere to those rulings as constituting the law of this case. Lonnecker v. Borris, Mo., 245 S.W.2d 53, 55; Maxie v. Gulf, Mobile & O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 323-324, 10 A.L.R.2d 1273; Walsh v. Terminal R. Ass'n of St. Louis, 355 Mo. 377, 196 S.W.2d 192, 194.
The plaintiff urges that
The plaintiff cites no cases in support of this contention other than our decision on the prior appeal which she contends is palpably wrong. Plaintiff's argument, however, stops short of asserting that Jones was relieved of the duty of exercising the highest degree of care while he was in the common area. Thus he was required to have his car under control, to maintain a careful and vigilant lookout ahead and laterally and, being charged with the duty to look, and since to look was to see, he must be held to have seen what looking would have revealed. See Weis v. Melvin, Mo., 219 S.W.2d 310, and other cases cited in the previous opinion. The evidence shows that Jones did not exercise due care while in and approaching the intersection. We adhere to the holding of the prior decision that plaintiff's decedent and defendant Toliver were both guilty of contributory negligence as a matter of law and not entitled to submit to the jury issues based on primary negligence, which disposes of this contention. The trial court did not err in refusing Instructions, P-6, P-7, P-8 and P-9.
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