Young v. City of Farmington

• Decision Date: 09 September 1946
• Docket Number: 39611
• Citation: 196 S.W.2d 124
• Parties: Ancil Young, Respondent, v. City of Farmington, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

196 S.W.2d 124

Ancil Young, Respondent, v. City of Farmington, a Municipal Corporation, Appellant

No. 39611

Supreme Court of Missouri, Second Division

September 9, 1946

From the Circuit Court of St. Francois County, Civil Appeal, Judge Norwin D. Houser

Affirmed

OPINION

Bohling C.

The City of Farmington, Missouri, a municipal corporation appeals from a judgment awarding Ancil Young $12,000 for personal injuries sustained when a motorcycle operated by Young and an automobile operated by an employee of the municipal light and water plant collided in the intersection of Liberty and Franklin streets in said City. Plaintiff predicated a recovery on primary negligence only. The issues presented embrace plaintiff's contributory negligence as a matter of law, instructions given and refused, and the amount of the damages.

Liberty and Franklin streets intersect at right angles, Liberty being an east and west street and Franklin a north and south street, with a "manhole" in the southwest quadrant of the intersection but bordering the center lines of the streets at their intersection, practically in the center of the intersection. Liberty street constitutes part of U. S Highways 61 and 67, and beginning one block west of Franklin and proceeding east is a 4-lane highway, 46 feet in width, usually having heavy traffic at the hour involved. Franklin street is 43 feet in width. Briefly: Edward Spurgeon was operating the City's Ford "pick-up" truck west on Liberty. Plaintiff was operating his motorcycle east on Liberty. Spurgeon made a left turn off of Liberty into Franklin and the truck and motorcycle collided in the southwest quarter of the intersection. The facts in greater detail and as testified to by plaintiff were:

Plaintiff was 28 years of age, was an employee of the St. Joseph Lead Company, and had been operating a motorcycle for a number of years. Plaintiff had finished working on November 24, 1943, and about 4:40 p. m. was operating his motorcycle eastwardly about 8 to 10 feet south of the center line of Liberty street at a speed of "12 to 18" miles an hour. When he was 40 to 60 feet west of Franklin he first saw defendant's truck pulling in close to the north curb of Liberty street, according to plaintiff's designation on his exhibit A, a plat of intersection, within 6 feet of the northeast corner of the intersection. Defendant's truck did not stop but continued on, making a left turn onto Franklin. Spurgeon gave no signal of an intention of turning south on Franklin and plaintiff said he thought Spurgeon was entering the line of the westbound traffic on Liberty street. Plaintiff marked the path of defendant's truck on the plat. It shows a steady turning movement of the truck from the time Spurgeon started within 6 feet east of the northeast corner of the intersection to the point of impact, placed by plaintiff 8 or 10 feet south of the center line of Liberty street and approximately a like distance west of the center of Franklin street. The movement of defendant's truck made a curve diagonally crossing the northeast quadrant of the intersection toward the south half of Franklin street and passed a little to the north and a little to the west of the intersection of the center lines of Liberty and Franklin streets, the truck's left wheels passing over the manhole. Plaintiff put himself 40 feet away. Plaintiff testified he "realized" defendant's truck was entering the intersection and when Spurgeon reached the manhole plaintiff was 10 feet away. Plaintiff testified he "realized" Spurgeon was turning when the truck was within "6 or 7 or 8 feet" of the manhole. He "decided" there was going to be a collision when he was within 5 to 10 feet of the truck. He put on his brake and turned to the right but was struck. "Q. You never did sound your horn? A. No, sir." "Q. How near were you to him before you decided there was going to be a collision? A. About 5 feet, or 8. ** Q. How near were you to the truck before you tried to turn to the right? A. Five or 6 feet; something like that. ** Q. At what rate of speed, Mr. Young, were you riding your motorcycle when you got within 5 or 6 feet of this truck? A. I was still running 12 or 15, I guess." "Q. Did you try to stop your motorcycle before you started to swerve it? A. No, sir." Spurgeon testified he pulled over to the north curb about 30 feet to 40 feet east of the intersection to let a car or cars pass and then continued west moving in the line of traffic until about the east curb of Franklin when he started making the turn to go south on Franklin; that he looked west but never saw plaintiff; that he then looked back east to avoid any cars approaching from that direction and first saw plaintiff just about the instant of the impact. Plaintiff testified he had the truck under constant observation from before it entered the intersection and saw that Spurgeon was looking off: "He was not looking at me"; that his motorcycle was equipped with a horn, but he did not sound any warning; that the brake and horn were operated by the same hand and when he put on the brake, he could not sound the horn; that he could stop in about 20 feet; that he did not attempt to stop until within 6 to 8 or 10 feet of the truck. The right corner of the front bumper of the truck struck plaintiff's leg. Traffic did not interfere with the movement of either vehicle.

Plaintiff predicated a verdict upon defendant being negligent (1) in failing to look ahead and to the left and to watch for others or (2) in failing "to stop at the center line of said Liberty street until plaintiff had passed."

The statement in ruling the issue of a case made that a plaintiff is entitled to have the favorable evidence and the inferences therefrom taken as true is ordinarily sufficient. Edwards v. Bell, 103 S.W.2d 315, 320[6, 7]. It is also true that the issue of contributory negligence is generally for the jury. However in ruling a plaintiff's testimony, the whole thereof, not merely isolated portions, must be considered. Skidmore v. Haggard, 341 Mo. 837, 841[1], 110 S.W.2d 726, 727[1]; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 767, 41 S.W.2d 801, 805[5, 9]; Walter v. Alt, 348 Mo. 53, 67, 152 S.W.2d 135, 142[8]. Plaintiff's testimony under oath amounting to admissions against interest are accepted as true when it establishes a defense. Rogers v. Boatmen's Nat. Bk., 346 Mo. 911, 915[2], 144 S.W.2d 79, 81[3]. Consult also Coleman v. Jackson County, 349 Mo. 255, 261[2], 160 S.W.2d 691, 693[2], citing cases; Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 776[4], 81 S.W.2d 333, 339[4]; Home Trust Co. v. Josephson, 339 Mo. 170, 184, 95 S.W.2d 1148, 1155[12, 13]; Cowell v. Employers' Indemnity Corp., 326 Mo. 1103, 1116(III), 34 S.W.2d 705, 710[6]; State ex rel. v. Shelton (Banc), 249 Mo. 660, 696(III), 156 S.W. 955, 965[2].

To sustain its position defendant relies upon rulings and observations that an exercise of the highest degree of care requires motorists to have their motor vehicles under control and to take cognizance of the probabilities of a situation existing at street intersections. Hammond v. Emery-Bird-Thayer D. G. Co. (Mo.), 240 S.W. 170, 173, 174; Baranovic v. C. A. Moreno Co., 342 Mo. 322, 328, 114 S.W.2d 1043, 1046; Bramblett v. Harlow (Mo. App.), 75 S.W.2d 626,630; Roberts v. Wilson, 225 Mo.App. 932, 938, 33 S.W.2d 169, 172; Potashnick v. Pearline (Mo.), 43 S.W.2d 790, 793; D'Wolf v. Stix-Baer & Fuller D. G. Co. (Mo. App.), 273 S.W. 172, 176[9]; Mitchell v. Brown (Mo. App.), 190 S.W. 354, 356; Parkville Milling Co. v. Massman (Mo. App.), 83 S.W.2d 128, 131[6]. Consult Sheffer v. Schmidt, 324 Mo. 1042, 1054, 26 S.W.2d 592, 597; State ex rel. Kansas City So. Ry. Co. v. Shain (Banc), 340 Mo. 1195, 1204, 105 S.W.2d 915, 920; Fitzpatrick v. Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560.

The record affords some observations tending to support defendant's position that under plaintiff's testimony plaintiff, as a matter of law, was not alert to the situation as it developed; that plaintiff did not exercise that care established as the standard (the highest degree of care) by the General Assembly for the operation of motor vehicles on the highways of this State; and that plaintiff's admitted acts constituted him a menace to other users of the highway. Plaintiff had defendant's truck under constant observation from before it entered the intersection. He observed its steady and nonvarying turning movement from the time it entered the intersection at the extreme northeast corner thereof. He saw its operator was not looking in his direction. Yet he testified that he failed to realize the truck was making a left turn across two lanes of a 4-lane highway on an intersection of streets of more than 40 feet in width until the truck was within 6 feet of the center line of the 4-lane highway; that he failed to decide that a collision was impending between the truck and his motorcycle if they continued on their respective courses until they were within 5 to 8 feet of each other, and that he made no effort to warn of his approach or to avoid the collision until he was within 5 or 6 feet of the truck. Defendant was negligent, but that is not decisive of plaintiff's contributory negligence as a matter of law. However, taking all the evidence and all the testimony before the jury in the light most favorable to plaintiff we are not persuaded the issue was solely one of law. See Bates v. Friedman (Mo. App.), 7 S.W.2d 452, 453[2]; Drake v. Thym 231 Mo.App. 383, 386, 97 S.W.2d 128, 130[1]; Trimble v. Price (Mo. App.), 282 S.W. 89, 90[2]; Meredith v. Claycomb (Mo. App.), 216 S.W. 794, 796[3, 4]. Where plaintiff was a bicyclist, Taylor v. Sesler (Mo. App.), 113 S.W.2d 812, 815[5, 7]. An issue of fact is for the jury and not the court...