Opinion
No. 42084.
July 9, 1951.
APPEAL FROM THE CIRCUIT COURT, SALINE COUNTY, PHIL COOK. J.
James Daleo, Thomas C. Swanson, Kansas City, and J. Marion Robertson, Marshall, for appellant.
Paul C. Sprinkle, William F. Knowles, Roy F. Carter and Sprinkle, Knowles Carter, all of Kansas City, for respondent.
This is a suit for $15,000 for personal injuries sustained in an automobile collision. Plaintiff-appellant Como was a passenger in a car owned and driven by his employer, Frank Pace. Defendant-respondent Arnote was the owner and driver of the other car. Verdict was for Arnote and Como appealed. His assignment here is that there was "no evidence upon which to predicate Instructions Nos. D-4 and D-5."
The collision occurred about 2 a. m., November 13, 1947, at Fifth and Locust Streets, Kansas City. The morning was cold and clear and the streets were dry. Pace, accompanied by Como and Joe Scardino, was driving west on Fifth. Arnote, unaccompanied, was driving north on Locust. The cars collided in the northeast quadrant of the intersection. Each car was proceeding in its proper, or the right, travel lane. The cars met at about the Fifth centerline, a few feet east of the Locust centerline. The impact points were the right front side of Arnote's car and the left front side of Pace's. The Arnote car was spun around and came to rest, facing south, in the northwest quadrant several feet north of the Fifth centerline and west of the Locust centerline. The Pace car swerved to the northwest, diagonaled across the northwest quadrant, jumped a 6 or 8 inch curb, crossed a 6 or 8 foot sidewalk and crashed into a brick building.
Locust and Fifth are paved, and the intersection and the approaches thereto are level. Locust was then 50 feet wide and Fifth, 33. There were no traffic control lights. On Fifth, about 25 or 30 feet east of the east Locust (projected) curbline, was a stop sign. There were bright street lights at each corner, and it was a "very well-lighted street," according to Como.
Como's evidence as to liability was: He was in the back seat and Scardino sat in the front seat beside Pace; Pace drove along Fifth 20 to 30 miles per hour, and slowed down, but did not stop, at the stop sign; he stopped at the east Locust (projected) curbline, with the front end of his car even with or a few feet back of such line; they had been talking "except not just then"; while stopped, all three looked both ways on Locust; they could see south 180 or 200 feet; Pace saw cars parked south on Locust, Scardino observed a man crossing the street, but none of the three saw any moving cars; Pace proceeded across Locust, with his car in low gear, at 5 or 6 miles per hour; the collision occurred after they had gone 25 or 30 feet; when they started up, Como again looked to the south, continued to look to his left and suddenly "saw him coming about 5 or 10 feet away"; Como shouted, "Look out," and the other car "was on top of us"; the other car was in its right lane; Pace didn't look south again and didn't "ever see the car or know it was coming"; he was looking straight ahead and, at Como's shout, looked to his left and saw the other car "a few inches away"; if its headlights were lit, he didn't see them; he used his brakes; Scardino did not again look south, and first saw the other car when it was "about 10 feet away"; "it was coming fast, 40 to 50 miles per hour" and the headlights were not on; none of the three heard a horn sounded; Pace's car had good hydraulic, four-wheel brakes and seemed to be in good condition that morning; with his car in low gear and moving at 5 miles per hour, Pace could stop in 3 or 4 feet; Como had driven the car at 5 miles per hour and, at that speed, could stop in 2 feet, but he had no idea how short he could stop at 50 miles per hour.
Arnote's case was: he was driving between 15 and 20 miles per hour; as he approached the intersection, he looked but saw no car, moving or stopped, on Fifth; he did not know the other car was coming, and his awareness of it was just before it collided with his; he could not say as to its speed; his headlights were on and were still burning after the collision.
Police Officer Roy T. Wesley, Jr. talked to both Pace and Arnote shortly after the collision. He testified that, while Pace "had the odor of alcohol on him, about his breath," he (the officer) "was not attempting to say Mr. Pace was drunk or was incapable of driving his automobile." Wesley said there was no alcoholic odor about Arnote, and that "he was just normal, as a normal man would be."
Como went to the jury upon Arnote's dangerous speed and failure to have headlights burning. Arnote submitted Pace's negligence as sole cause, and Como's contributory negligence in failing to protest or to warn.
Instruction D-4, sole cause, conjunctively required findings of Pace's dangerous speed, lack of control and failure to keep a lookout. The respective positions of the cars after the collision are persuasive that Pace's speed was much more than the 5 or 6 miles per hour stated by him, that Pace did not apply his brakes, and that Arnote's speed was, as he said, only about 15 or 20 miles per hour. Again, Arnote, traveling at 15 or 20 miles per hour, had proceeded only 15 or 20 feet while Pace was traveling 25 or 30. From this evidence alone, the jury could reasonably infer both that Pace's speed was dangerous and that he did not have control of his car.
But, even if the evidence was not sufficient as to Pace's speed or lack of control, it was ample as to his failure to keep a lookout. He admitted that, from his claimed stop at the east Locust (projected) curbline, his view south was unobscured for at least 180 feet, and that he did not again look south after he entered the intersection.
The instruction, submitting Pace's three alleged negligent acts or omissions in the conjunctive, was not erroneous as the evidence was sufficient as to one of them. Fair v. Thompson, 240 Mo.App. 664, 212 S.W.2d 923; and 1 Raymond, Mo.Inst. Juries, Sec. 69, p. 59. See also Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384.
Instruction D-5 submitted conjunctively Como's contributory negligence in failing to protest to or warn Pace against the same acts or omissions submitted in Instruction D-4, and also, to warn Pace about the stop sign or to protest his failure to observe it. There was evidence that no stop was made at the sign. And the evidence supported a reasonable inference that Pace made no stop whatsoever. What we have heretofore said of Instruction D-4, and of the evidence as to Pace's speed, lack of control and failure to keep a lookout, is applicable to these same submitted acts or omissions under Instruction D-5. Como said he was looking south all the time after they entered the intersection. The testimony of Pace and his two passengers was that Como made no protest and uttered no warning until the other car "was on top of us." The evidence upon which Instruction D-5 was based was sufficient.
Como cites inapplicable cases. In Strother v. Dunham, Mo.App. 193 S.W. 882, there was no evidence upon which to base the instruction that deceased rode across the tracks "knowing he would be struck" by the streetcar. In Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64, we approved the refusal of an instruction submitting disjunctively several charges of specific negligence, some of which were not supported by evidence. In Dahlen v. Wright, Mo.Sup. 235 S.W.2d 366, and Crites v. Bollinger, Mo.App. 238 S.W.2d 26, sufficiency of the evidence upon which to predicate the instructions was not in issue.
The judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.