Opinion
No. 21805.
May 4, 1953.
APPEAL FROM THE CIRCUIT COURT, CALLAWAY COUNTY, W. M. DINWIDDIE, J.
Lester G. Seacat, Jefferson City, for appellant.
Keyes Bushman, Jefferson City, for respondent.
This is an action for damages for personal injuries sustained by plaintiff William Henry Lee (a minor) as a result of being struck by an automobile driven by defendant, Clinton Eugene Holland, while plaintiff was a pedestrian on Highway 54 north of Jefferson City. Plaintiff had a verdict and judgment in the sum of $5000 and defendant appeals.
On Sunday, January 1, 1950, plaintiff Lee, age 17 and three other boys, Herbert Willis, James Pfenenger and George Wagner, spent the afternoon hunting along the Katy tracks in Callaway County north of Jefferson City. Lee was wearing a yellow coat, Willis a white sweat shirt, Pfenenger a brown flannel shirt, and Wagner a yellow sweat shirt. All wore blue jeans.
The boys quit hunting before it was dark, but stopped along the tracks and rested a little bit. Later in the afternoon they started to Jefferson City. From a point near the Katy tracks they walked south on the shoulder of the west or right side of Highway 54. From that point to the scene of the accident the road is straight and level. The slab is 21.5 or 22 feet wide. The shoulder was 7 or 8 feet wide and was a fairly smooth place to walk.
At the time of the accident Pfenenger and Willis were walking abreast in front of the group. Pfenenger was on the inside about two feet from the slab. Willis was on the outside. Wagner was immediately behind them and plaintiff Lee was behind Wagner. They had remained on the shoulder off the slab all of the way and walked without stopping from the point near the Katy overpass until the accident happened.
The accident occurred at about 6 o'clock p. m., across the slab from Dean's Drive-In (a drive-in restaurant) which was situated about 60 feet from the edge of the highway slab on the east side of Highway 54. It was a little less than half a mile north of the intersection of Highways 63 and 54 north of Jefferson City, and a little over half a mile south of the highway overpass at the Katy tracks. The restaurant was open for business at the time and advertising lights on the outside were lighted and there were cars in the driveway.
Just before defendant's automobile hit plaintiff Lee, one of his companions (Willis) glanced around over his shoulder and said something to him. At that time Lee was on the shoulder about 2 1/2 feet from the edge of the slab and about five feet back of Willis who spoke to him in an ordinary tone of voice. Lee was carrying a single shot 20-gauge shot gun, horizontally over his neck and shoulders with one arm looped over the stock and one arm over the barrel. A few seconds — "a very, very, short period of time" after that Lee was struck by the car.
Lee testified that he was walking on the shoulder at the time, but was closer to the slab than was Wagner. He did not see or hear the automobile before it struck him or feel the impact. He had no recollection of being hit or of anything that transpired thereafter until the following Friday.
One eye-witness to the impact described it thus:
"Q. Just briefly, and in your own words, tell the jury what you saw, Mr. Strauch? A. I was looking in my trunk (his car was standing on the apron in front of the drive-in) for some material when my wife mentioned something about something across the highway. I looked, I turned around and looked over across the highway and just as I looked I seen a car hit a boy and it appeared to me that he flew over the top of the hood and hit the windshield and bounced over into the ditch.
"Q. How far did the impact throw the boy? A. I would judge about 15 to 20 feet.
"Q. Do you know what part of the car hit what part of the boy? A. It happened that the right, front fender hit the boy on the shoulder and he flew up and it seemed like he was flying. It appeared that he was flying head first towards the windshield."
This same witness testified that the accident happened so fast that he could not say whether Holland's car was on the slab or on the shoulder.
After the impact Lee passed Willis and Pfenenger at an angle to the pavement, either in the air or rolling, and came to rest 15 to 20 feet away on the shoulder about six to ten feet from the right side of the slab, more in the ditch than on the shoulder. He passed in front and on the left of Willis and Pfenenger, who were on the shoulder at the time, and between them and the pavement.
Immediately after the accident all of the other boys went to the aid of Lee. He was unconscious or semiconscious when the bystanders reached him and was bleeding some about the head. At least one of his shoes was off and perhaps both of them. The barrel of his gun (observed later) was bent and the stock was broken.
Defendant's car, after a momentary slowdown, continued down the highway about 1500 feet. The right front fender was bent; the right front headlight was out; the windshield was cracked and the canvas in the convertible top was torn.
The Highway Patrol arrived on the scene within a very few minutes. At that time defendant stated to the Patrol that he was driving about 65 miles an hour. He also stated that the car he was meeting at the time had its lights on and that he did not see anybody on the highway and didn't know he had hit anything until he felt it.
Various witnesses for plaintiff testified that no horn was heard before the accident. Also that no flashing lights were observed, or the car observed to swerve.
After the accident, the witnesses observed only one car approaching from the south between the Highway 54-63 intersection and the scene of the accident. It was some distance down the road and had dim lights.
An ambulance was called from Jefferson City and plaintiff was taken to a hospital there where he remained for 13 days. Since no claim is made that the verdict is excessive there is no need to recite the extent of plaintiff's injuries.
Defendant, Holland, age 22, testified he started from Fulton to Jefferson City about 5:30 p. m., on January 1, 1950, driving a '48 Studebaker convertible. He was accompanied by Miss Mildred Zbendin and Donald Schiverdecker. At the time of the trial the latter was in the Air Corps and unavailable as a witness. They were in the front seat together. Miss Zbendin sitting in the middle. They were on their way to a picture show in Jefferson City. Defendant said his car was going 60 to 65 miles an hour; that the brakes were in good order; that he was driving on the right-hand side of the center line of the highway; that he never had his car off the slab; that prior to the time of the accident, he did not see anybody on the pavement or in front of the car. At the time that the accident occurred he knew that he had struck something but did not see it before the impact. He had his headlights on and was looking straight ahead and watching the highway as he went down the road. After he struck the object, he thought he had hit a dog or a bird or something because it broke the windshield and he started to go on and then decided he had better stop and make sure. When he went back plaintiff was lying on the slanting part of the shoulder.
Miss Zbendin also testified that defendant drove on the slab portion of the highway all the way from the overpass to the scene of the accident; that the car was not on the shoulder at any time. She recalled the circumstances that the car struck something, but she did not see anything prior to the time of the impact.
Mr. Ray Little, of Fulton, an auto body man, did the repair work on defendant's car after the accident. He testified that the right front fender was bent around the headlight and the headlight was shoved back. The windshield was broken out. The chrome molding around the windshield was bent. The upright post had a dent across it like some sharp object had hit it.
The balance of defendant's evidence went to the nature and extent of plaintiff's injuries.
At the close of plaintiff's case, and again at the close of all the evidence defendant offered and the court denied his motion for an instructed verdict.
Defendant's first contention is that the court erred in overruling it for the reason that plaintiff failed to prove primary negligence on the part of defendant, and that plaintiff was guilty of contributory negligence as a matter of law. Defendant claims that the evidence discloses beyond question that plaintiff stepped on the slab from the shoulder in front of the oncoming car practically at the same time that the collision occurred; that the physical facts exclude any other conclusion.
In ruling upon the question of whether plaintiff made a submissible case for the jury we must disregard defendant's evidence unless it aids plaintiff's case, and consider the evidence most favorable to plaintiff and favorable inferences therefrom.
It is, of course, true that the court may properly reject evidence which is contrary to physical facts or to known physical laws. However, "the province of the jury to pass on the facts must not be invaded and however improbable the testimony of the witness who testifies to a fact, not in itself impossible, may appear in the ordinary course of events its credibility is for the jury. * * * So frequently do unlooked for results attend the meeting of the interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other." Hardin v. Illinois Central R. Co., 334 Mo. 1169, 70 S.W.2d 1075, 1079.
It appears to us that all of the evidence relating to the moment of impact more convincingly points to the conclusion that defendant permitted his automobile to swerve or swing out slightly or partially onto the smooth shoulder and there strike plaintiff than that plaintiff leaped from a place of safety on the shoulder onto the highway directly in the path of defendant's automobile. Traveling at sixty or sixty-five miles an hour, defendant was unaware of the presence of the four boys on the shoulder of the highway until after plaintiff was injured, and it is just as likely that he did not notice or feel the automobile swerve momentarily from the slab to the shoulder to strike and injure plaintiff.
The damage to defendant's automobile points to the reasonable inference that the projection or overhang of the right front fender and body of defendant's automobile beyond the wheels and the west edge of the slab struck plaintiff while he was wholly on the shoulder, but close to the slab. It is common knowledge that modern automobiles are so constructed that the bodies and fenders project well beyond the wheels and that it is even necessary to mount so-called "curb-finders" on the right hand side of such automobiles in order to prevent damage to lower parts of the bodies and fenders in parking. Indeed the testimony of the witnesses and the physical facts demonstrated that the collision in the instant case could have resulted in precisely the same manner as did the casualty in the case of Ventimiglia v. M. A. Heiman Manufacturing Co., Mo.App. 256 S.W. 139.
Far from establishing physical facts which compel the conclusion that the collision happened on the slab, the evidence boils down to a conflict as to whether it happened on the shoulder or on the slab. In view of plaintiffs positive testimony that he was on the shoulder when hit, there was raised a question concerning which reasonable minds could fairly and honestly differ. Thus, we should not disturb the jury's finding.
Defendant's second point is that the principal instruction given on plaintiff's behalf is erroneous. The instruction first required a finding "by the preponderance or greater weight of the credible evidence that at the time and place mentioned in evidence plaintiff was walking along the shoulder of the highway in close proximity to the concrete pavement of said highway." It then submitted the following propositions: (1) Negligent speed and that by reason thereof defendant was unable to see plaintiff in time to stop or turn his automobile or to warn plaintiff of the approach of his automobile; (2) negligent failure to have his automobile under such control that he could readily and reasonably stop or turn his automobile in order to avoid striking plaintiff; (3) negligent failure to keep a vigilant lookout for persons on or in close proximity to the highway, and that by keeping such lookout he could have seen plaintiff in time to have avoided collision with plaintiff by turning his automobile or by warning plaintiff of the approach of his automobile; (4) negligent failure to stop or turn his automobile in such manner as to avoid striking plaintiff; or (5) negligent failure to warn plaintiff of the approach of his automobile.
There was evidence to support each of the submissions. Defendant admitted that he was driving sixty to sixty-five miles an hour, admitted that he did not stop or turn his automobile prior to the collision. It was conceded that no warning, either by horn or flashing lights, was given. Defendant admitted that he did not see the boys prior to or at the time of impact and that he did not know what he had hit. It was conceded that as defendant approached the boys he had before him at least a half mile of straight level highway. And three of the boys were wearing light colored shirts or jackets.
Defendant says that the speed of his car had nothing to do with the casualty. It is to be noted that the negligent speed was submitted by way of inducement and the jury was required to find whether by reason of such negligent speed, defendant was unable to see plaintiff in time to stop or turn his automobile or to warn plaintiff of the approach thereof. The jury could well have found, and undoubtedly did find, that but for such speed defendant could have seen the boys in time to have warned them, so that plaintiff could have moved farther west of the slab, or defendant could have stopped or turned his automobile so that it would not swerve out onto the shoulder to strike plaintiff, or so that the projection or overhang of his automobile beyond the west edge of the slab would not strike plaintiff. In other words, the jury could well infer that had defendant been driving at a slower speed he would have had more time and distance in which to see the boys and more time and distance in which to warn or turn or stop.
It was defendant's duty to keep a vigilant outlook ahead for persons on or close to the highway, and his failure to see the boys was evidence that he failed to keep the enjoined lookout and supported the jury's finding that he did not keep such lookout. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938.
The hypothesis that plaintiff was on the shoulder at the time of the impact is explicit throughout the instruction and is a part and parcel of every particular of negligence submitted. We must assume that the jury as reasonable and intelligent men understood the instruction, followed the same, and were governed by the evidence. The contention is without merit.
Defendant also says that it was error to refuse his instruction B. It required a finding for defendant if the jury found that plaintiff "turned from the shoulder (if you find he was walking thereon) and went upon the slab immediately before the accident, and as a direct and proximate result of so doing (if you so find) he was struck by the automobile * * *."
At defendant's request the court gave Instruction C. It told the jury "that unless plaintiff has shown by the preponderance or greater weight of the evidence that some part of defendant's automobile struck plaintiff at a time when the plaintiff was on the shoulder of U.S. Highway 54, your verdict will be for the defendant."
Instruction C covered the same proposition sought to be submitted by Instruction B. If anything, it was more favorable to defendant than was his requested Instruction B. This contention also lacks merit.
Finally, defendant contends that the court should have sustained his motion for a new trial. He says that the finding embedded in the verdict that the accident occurred on the shoulder and not on the slab cannot be reconciled on any theory of physics or mechanics or common sense with two physical facts: "(1) The other boys were not hit. (2) Lee's body airborne followed a line at an angle with the slab and passed to the left and in front of Pfenenger who was two feet west of the slab at the time, and it came to rest eight to ten feet west of the slab fifteen to twenty feet south of Pfenenger and Willis." On the other hand, these circumstances just as reasonably point to the fact that the projection or overhang of defendant's car caught plaintiff while on the shoulder as they do to the fact that he stepped onto the slab. The jury could well have believed that the right front fender of defendant's automobile overhung the slab, caught plaintiff, and that the impact flung him into the windshield and he thereafter was carried along by the automobile and flung to the shoulder in front of the other boys. In our opinion, this unusual case, so ably argued and briefed, was one for the jury. Finding that no error occurred at the trial prejudicial to defendant, the judgment should be affirmed. It is so ordered.
DEW, J., concurs.
CAVE, J., not participating.