Opinion
No. 21298.
February 6, 1950.
APPEAL FROM THE CIRCUIT COURT OF ADAIR COUNTY, TOM B. BROWN, J.
James Glenn, Macon, L. F. Cottey, Lancaster, for appellant.
Waldo Edwards, Paul D. Hess, Jr., Macon, Edward M. Jayne, Edward R. Jayne, Kirksville, for respondent.
This is an action in damages for personal injuries suffered in an automobile collision. Plaintiff recovered judgment and defendant appealed. We will refer to the parties as plaintiff and defendant.
Plaintiff's petition alleged certain specific acts of primary negligence and the case was so submitted. Defendant's answer pleaded contributory negligence in certain particulars and this defense was submitted. The sole contention made on this appeal is that the court erred in overruling defendant's motion for a directed verdict because the evidence established that plaintiff was guilty of contributory negligence as a matter of law. This contention presupposes negligence of the defendant, and we need not discuss evidence concerning that issue.
The collision occurred at a point where Route A enters U.S. Highway No. 36 in Macon County. Highway 36 runs in a generally east and west direction; is paved with concrete 20 feet wide, and is a much traveled road. route A is a blacktop road running north from No. 36, but it does not cross to the south. On the south side of No. 36 are two buildings: a museum which is 37 feet south of the south paved portion thereof, and almost directly south of the point where Route A joins No. 36; the other building is a filling station 26 feet south of the paved portion of No. 36 and 33 feet east of the east edge of the blacktop part of Route A if projected. The surface between these buildings and the highway is gravel. On the day of the accident plaintiff had driven his car from the north along Route A and across No. 36 and parked it in front of the museum. After completing his business he returned to his car and made a semicircular turn to his left on the gravel and proceeded across No. 36 without stopping. At this time defendant was driving his car eastward along No. 36. The collision occurred a few feet north of the north edge of the concrete on the blacktop of Route A. This is a very general statement of the situation to give an over-all picture of the scene. We shall now consider the evidence more in detail, and in the light most favorable to plaintiff, because of the only point of error urged on appeal.
When plaintiff drove his car onto the gravel surface near the museum, he backed it into a position so that he could make the turn to the left and enter onto and across Highway 36 without again backing. He started his car in low gear and remained in that gear until the collision. After he made the turn and approached the south edge of the concrete he was facing slightly northwest, and looked to the west for approaching traffic when "I was ready to go on it (No. 36). Q. Right up to it? A. Close to it. Q. How close? A. I wouldn't know." He wouldn't say the exact distance he was from the pavement when he looked, but the effect of his testimony is that he looked to the west when he was in the act of going upon the concrete and saw no approaching car at that time. He proceeded across the highway at a speed estimated from three to six miles an hour, and about the time he cleared the center line of the concrete he looked to the west again and saw defendant's car approaching and leaving its righthand side of the road and angling towards the left, at which time plaintiff accelerated the speed of his car but defendant continued to angle to his left until the collision occurred on the blacktop about 10 feet north of the north edge of the slab. Plaintiff gave no estimate of the distance defendant's car was from him when he noticed it crossing the center line, but said he watched it until the collision; it was coming "plenty fast." Other witnesses estimated the speed of defendant's car at 45 to 50 miles an hour.
The evidence also discloses that there is a hill to the west of the point where plaintiff entered onto the highway, and that it is 350 feet from that point to the crest of the hill; that a person standing at that point could see an automobile approaching from the west a distance of 450 feet; but there is no evidence that a person sitting in a car could see an approaching car beyond 350 feet. Defendant was driving downgrade from the crest of the hill to the point of collision. There was nothing on or beside the highway to obstruct the view of either the plaintiff or the defendant after defendant's car came into view from back of the crest of the hill.
Defendant testified that when he came over the hill he was driving about 45 miles an hour and took his foot off the accelerator and gradually reduced his speed; that when he first saw plaintiff's car it was 6 or 8 feet south of the paved portion of No. 36 and he was about 190 feet west at that time; when he saw plaintiff was not going to stop he turned to his left into the north lane of traffic and when he got about 50 feet from plaintiff he was traveling about 30 miles an hour and applied the brakes and skidded the wheels about 20 feet before the collision, which he says occurred on the north half of the concrete. He admitted he did not sound any warning signal; and that he could have seen plaintiff's car when he was 450 feet west, but for some reason he did not.
Other evidence will be mentioned in the discussion of the various charges of contributory negligence.
The question whether a person is guilty of contributory negligence, as a matter of law, depends upon the facts and circumstances in each case. Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541. There are certain general principles of law which the courts apply in determining that issue and we find no substantial dispute in the briefs concerning those general principles. It is the application of such rules to a given set of facts which causes concern. There is a substantial difference between the proposition that the evidence makes a submissible issue of contributory negligence and the proposition that the evidence justifies the court in declaring a plaintiff guilty of contributory negligence as a matter of law.
Defendant cites certain cases supporting the general proposition that it is negligence for a party to fail to stop and look for approaching vehicles before entering a main traveled highway at a point known to be dangerous. Parkeville Milling Co. v. Massman, Mo.App., 83 S.W.2d 128; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Meyer v. Pevely Dairy Co., 333 Mo. 1109, 64 S.W.2d 696. That general rule is not applicable here because the plaintiff testified that as he approached and was very close to the concrete slab he did look to the west where he could see for a distance of approximately 450 feet and saw no approaching car. At that time he was traveling only 3 or 4 miles an hour and could have stopped his car almost instantly. Under such circumstances he had a right to assume he could cross with safety. However, defendant contends that if plaintiff did look, then he should have seen defendant's approaching car because it was in full view, and the failure of plaintiff to see that which is clearly visible makes him guilty of contributory negligence, as a matter of law. Parkville Milling Co. v. Massman, supra; State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Woods v. Moore, Mo.App., 48 S.W.2d 202. There is no direct evidence in plaintiff's case that defendant's car was in view at the time plaintiff looked to the west as he approached the concrete slab. To supply this essential element, defendant has submitted charts showing the number of feet per second a car travels at given speeds. According to these charts, if defendant was traveling 50 miles an hour (and there was evidence to that effect and that the speed was not reduced noticeably until he was within about 50 feet of plaintiff), he would have traveled the 450 feet in 6.13 seconds; however, if defendant could be seen only 350 feet away by a person sitting in a car, then defendant would have reached the point of collision in 4.77 seconds. The charts also show that if plaintiff was traveling at 3 miles an hour (and there was evidence to that effect), he would have traveled 26.46 feet in 6 seconds. But there is evidence that he had traveled at least 30 feet before the collision. These calculations tend to support plaintiff's positive testimony that he looked and saw no car approaching. Therefore, viewing the evidence in the most favorable light to plaintiff, it cannot be said, as a matter of law, that defendant's car was in sight at the time plaintiff started upon the highway, and the rule that a person entering a much traveled street or highway is held to have seen what he could have seen if he had looked, is not applicable.
Defendant particularly urges us to consider the opinions in Parkville Milling Company v. Massman, supra, and Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495. We have studied those opinions and find that in each case the plaintiff saw the approaching vehicle before entering the highway. It was what they did or failed to do after they saw the situation that caused the courts to say they had been guilty of contributory negligence.
Defendant also argues that the duty to look for approaching vehicles is a continuing one and the failure to do so is contributory negligence, as a matter of law. That is too broad a statement of the rule. A person crossing a busy street or highway must look for approaching vehicles but he is not required to look in only one direction. Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254-256. The evidence is that plaintiff looked to the west and saw no approaching vehicle, and when he had proceeded to about the center of the highway he again looked and for the first time saw defendant's car bearing down on him and turning to its left. He did not undertake to estimate its distance, but defendant testified that when he first saw plaintiff's car he was about 190 feet away and did nothing to avert the collision except to turn to his left until he was within 50 feet of plaintiff when he applied his brakes. Certainly plaintiff should not be convicted of contributory negligence, as a matter of law, for failing to continually look to the west as he crossed the highway. It was equally his duty to look to the east for traffic coming from that direction and to look forward to see where he was driving. Hopkins case, supra.
But defendant says that plaintiff had the ability to avoid the collision by stopping his car when he first saw defendant, and that he should have done so. However, at that time, plaintiff's car was almost past the center of the concrete slab and he could hardly be expected to stop practically in the middle of the highway. He did the normal thing by increasing his speed in an effort to get off the pavement.
Defendant also argues that the physical facts conclusively show that plaintiff was guilty of contributory negligence. There is no merit in this contention because of the conflict in the evidence concerning the speed of the respective cars, their location at different times, and what was done by each party. In Ross v. Wilson, 236 Mo.App. 1178, 163 S.W.2d 342, 346, we said: "The argument for the application of the physical fact rule is not sound. The testimony of the various witnesses in reference to the location of the respective cars at different times and their rate of speed is conflicting. No witness attempted to answer questions of speed and location with complete accuracy. This is not what is sometimes called a physical facts case where the testimony of a witness is rendered incredible. The physical facts upon which appellant's argument is based are variable under the evidence which does not show beyond controversy the location of objects or things at any definite time or place."
We have read the cases cited by defendant and without discussing each one separately it can be said that the prime distinction in this case and those cited is that plaintiff did look before entering onto the main highway, and that the evidence did not conclusively prove that defendant's car was in view at that time. Therefore plaintiff cannot be charged, as a matter of law, with driving onto the highway without looking, or if he did look with not seeing what was in plain view.
There are a multitude of cases discussing the question of contributory negligence as a matter of law and it would serve no useful purpose to cite a large number, but the facts in Bramblett v. Harlow, Mo.App., 75 S.W.2d 626, are so similar to those in the instant case and the legal principles announced are so applicable, that we recommend it to those interested in the question under discussion.
The most that can be said against plaintiff is that reasonable minds might differ about the effect to be ascribed to his conduct; but this, after all, is but another way of saying that the issue of contributory negligence was one for the jury to determine, and we so rule. Wengert v. Lyons, 221 Mo.App. 362, 273 S.W. 143; Dauber v. Josephson, 209 Mo.App. 531, 237 S.W. 149; Stelmach v. Saul, Mo.App., 50 S.W.2d 721.
In deciding the question of a party's contributory negligence as a matter of law, we must always keep in mind the rule announced in State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W.2d 967, 972, where the court said: "A careful reading of the cases cited and many others convinces us that contributory negligence as a matter of law can seldom be established by oral testimony offered solely on the part of the defendant. Usually it must appear in the plaintiff's case, or be established by testimony on the part of defendant which plaintiff concedes to be true, or by documentary evidence or proof of facts or circumstances by defendant which leave room for no other reasonable inference." See, also, Jacobs v. Gilleylen, Mo.Sup., 224 S.W.2d 982, 984.
Finding no reversible error, the judgment is affirmed.
All concur.