Zagarri v. Nichols
| Decision Date | 08 July 1968 |
| Docket Number | No. 52533,No. 1,52533,1 |
| Citation | 429 S.W.2d 758 |
| Parties | Jolene ZAGARRI, by Vincent Zagarri, Next Friend, Appellant, v. Charlotte B. NICHOLS, Respondent |
| Court | Missouri Supreme Court |
James W. Jeans, Kansas City, for plaintiff-appellant.
Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for defendant-respondent.
HOUSER, Commissioner.
This is a suit for $50,000 damages for personal injuries sustained by a 4-year-old child who was struck by an automobile driven by defendant. A trial jury returned a verdict for defendant. Plaintiff appealed.
The collision between automobile and child occurred in an alley in the City of St. Louis on a clear sunny day at about 5 o'clock p.m. The alley was of paved concrete approximately 15 feet wide. Garages and fences bordered the alley on the north side. Defendant, operating a 1957 Ford automobile, the brakes of which were in good working order, as proceeding east, in the middle of the alley, 4 or 5 feet distant from the garages and fences to the left of the driver. The defendant had operated the automobile about 150 feet in the alley at the time of collision. The highest speed attained in the alley was 13 m.p.h. There were no obstructions to the defendant's view, such as other vehicles, telephone poles, etc. Defendant was aware of the fact that this was a residential neighborhood and that normally there were a number of children around there. When defendant's automobile was 'a couple' of houses west of the point of impact defendant saw and passed some children (other than plaintiff) walking westwardly on the left side of the alley. When defendant first saw them she slowed down to 6, 8 or 10 m.p.h. but did not alter the course of the automobile. After passing them defendant started to go faster again but did not have 'a chance to go very fast because it happened then.' Defendant saw plaintiff before the car struck her. Plaintiff was not directly in front of the automobile. Defendant gave the police investigator a statement as follows: Defendant testified at various times that when she first saw her the child was 'a couple of feet' to the left side of the car--'two or three feet'--from the path of the automobile, 'moving,' or 'going' east 'at a slant to her right,' in a southeast direction; that plaintiff was 'just a little bit ahead' of the front of the car; a foot or so ahead and a foot or so in front of the front bumper, and once she testified that the child was never ahead of the car. Defendant did not know whether plaintiff's gait was a walk, trot or run and did not know how fast plaintiff was moving. Defendant saw the back of plaintiff's head and 4 or 5 inches below the shoulder level. Plaintiff never did see the automobile. When defendant first saw plaintiff 'off to her left' the automobile was traveling at a speed variously estimated by defendant at 6, 8 or 10 m.p.h. Defendant put on the brakes. She did not sound a horn or swerve the car to one side. She did not have time 'to do anything but slam on the brakes.' The speed of the automobile had been reduced 'a little' at the time of contact. The left headlight struck plaintiff in the back of the head and she fell down sideways, 'right at the point where she was struck.' The automobile did not move 'very far' after striking the child. Plaintiff was lying even with the middle of the left door when the car stopped. There was a pool of blood left on the concrete where the child lay, 3 feet south of the rear fence of 6024 Columbia Street and 7 feet west of the east and of the fence which ran along the north side of the alley. There were 'overgrown vines' on the fence and bushes around the fences at the point where the accident happened. The bushes and vines were higher than the top of the fence.
Appellant's first point is that the court erred in not granting plaintiff's motion for a directed verdict on the issue of liability, at the close of all the evidence. Appellant argues that defendant's own testimony established that while traveling east at 6 to 8 m.p.h. in the middle of a 15-foot alley on a clear day with an unobstructed view she overtook and struck from the rear a 4-year-old child who was moving eastwardly in the alley at a slight angle from north to south; that defendant acknowledged (1) the presence of other children in the alley, and that she saw them; (2) her failure to see plaintiff until the left corner of the automobile was within a foot or two from her; (3) the striking of the child; (4) the capacity of the automobile to have stopped in half a car length, and (5) injury to plaintiff, and thus, defendant having admitted the basic facts of plaintiff's case (failure to see plaintiff, capacity for evasive action, striking and injuring plaintiff), a finding of negligence as a matter of law is compelled.
Rarely does a negligence case depending upon oral testimony present itself wherein the court is justified in directing a verdict in favor of the party having the burden of proof. Manley v. Horton, Mo.Sup., 414 S.W.2d 254, 258(4); Rutledge v. Baldi, Mo.Sup., 392 S.W.2d 244, 246(1); Nichols v. Blake, Mo.Sup., 418 S.W.2d 188, 189, 190(1); Beezley v. Spiva, Mo.Sup., 313 S.W.2d 691, 695(7); Richardson v. Wendel, Mo.Sup., 401 S.W.2d 455, 459(6); Emert v. St. Louis Public Service Co., Mo.Sup., 370 S.W.2d 366, 368; Schaefer v. Accardi, Mo.Sup., 315 S.W.2d 230, 233; Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 154. Only in exceptional circumstances, as in the case where the defendant in his pleadings or by his counsel in open court admits or by his own evidence establishes plaintiff's claim, or 'where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim * * *,' 1 have the courts indicated that there may be an exception to this general rule. This defendant made no such admission either by way of her pleadings (her answer denied the allegations of negligence) or through her counsel. Defendant's testimony does not clearly and unequivocally constitute a concession of the ultimate fact of negligent failure to keep a careful lookout (which was the only negligence submitted). It is true, as appellant suggests, that defendant was obliged to exercise the highest degree of care to keep a lookout laterally and ahead and to discover conditions which a person exercising that degree of care would be expected to see. It is likewise true...
To continue reading
Request your trial
-
Lester v. Sayles, No. 74719
...and erroneous to allow the jury to have articles not properly in evidence which would tend to influence the verdict." Zagarri v. Nichols, 429 S.W.2d 758, 761 (Mo.1968); Southwick v. Ace Auto Body Shop, Inc., 646 S.W.2d 401, 404 (Mo.App.1983). However, the common law proscription has been mo......
-
Vaughn v. Michelin Tire Corp.
...to a claim, have the courts indicated that a verdict may be directed for the party having the burden of proof. Zagarri v. Nichols, 429 S.W.2d 758, 760 (Mo.1968); Parker v. Pine, 617 S.W.2d 536, 541 (Mo.App.1981). It has been held, and we believe, that a cause may be taken from the jury on a......
-
Alaska Federal Sav. & Loan Ass'n v. Hoffman
...functions of the jury as the fact-finding unit in litigation. Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287(1); Zagarri v. Nichols, Mo.Sup., 429 S.W.2d 758, 760(2); Auffenberg v. Hafley, Mo.App., 457 S.W.2d 929, 934, In accordance with this basic premise and to satisfy its requiremen......
-
Parker v. Pine
...may be an exception to the general rule against directing a verdict in favor of the party having the burden of proof. Zagarri v. Nichols, 429 S.W.2d 758, 760 (Mo.1968). The amount of damages awarded to a successful party is primarily for the jury and its broad discretion in fixing the amoun......