Opinion
No. 21427.
February 5, 1951.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT, JACKSON COUNTY, BEN TERTE, J.
Jack G. Beamer, William Icenogle and Stubbs, McKenzie Williams, all of Kansas City, for appellant.
A. L. Quant, McClintock Quant, Norman R. Willian and Morrision, Hecker, Buck, Cozard Rogers, all of Kansas City, for respondent.
This is an action for damages to an automobile alleged to have been caused by the negligent collision therewith by another automobile, operated by defendant. Defendant filed answer and counterclaim. The Court, sitting as a jury, gave judgment for plaintiff on his petition in the sum of $334.45, and found the issues for the plaintiff on defendant's counterclaim. Defendant has appealed.
The plaintiff's petition alleged that on March 5, 1948, at eight o'clock in the morning, he was operating his Cadillac car in the intersection of 46th Street Terrace and Mill Creek Boulevard in Kansas City, and when at or about the center of the intersection he was in the act of turning north on such boulevard, with the center point of intersection to his left, and was negligently collided with by the defendant, operating a Buick car from the north on said boulevard. He pleads ordinances of Kansas City defining right-of-way, reckless driving, and speed restrictions which, it is averred by the plaintiff, the defendant negligently failed to obey, thereby causing the collision. He pleads that the defendant was negligent in operating his car at an excessive rate of speed, failed to maintain a careful lookout, failed to exercise the highest degree of care, failed to yield the right-of-way, and pleads the humanitarian doctrine. The prayer is for $500 damages to the plaintiff's automobile.
The answer admits the collision, denies the allegations of negligence and damages, pleads contributory negligence of the plaintiff in failing to operate his car with due care, and pleads a counterclaim for damages to defendant's automobile in the sum of $500, on various grounds of negligence, including the humanitarian doctrine.
Forty-sixth Street Terrace, running east and west, is a dead-end street, terminating at its east end at Mill Creek Boulevard, which runs north and south. The immediate approach on that street to the boulevard is on a decline, and there is a stop sign on the southwest corner of this junction. Forty-sixth Street Terrace is about 30 feet wide. The boulevard is 50 or 60 feet in width, accommodating two lanes for southbound traffic, and two lanes for northbound traffic, paved with asphalt macadam. The morning in question was misty and damp, and the pavement on the boulevard was slick. There is a slight decline in the boulevard toward the south as it approaches and passes 46th Street Terrace from the north. The northbound traffic, headed toward the down town district, was at the time very heavy and was described as "bumper to bumper". The southbound traffic was heavy but "there were some gaps in it."
The evidence of the plaintiff was that as he arrived at the junction of 46th Street Terrace and Mill Creek Boulevard, he stopped, in obedience to the stop sign on the corner to his right. He desired to enter the boulevard and make a left-hand turn to the north. He looked to the north and "could see as far as he wanted to see". He noticed three or four cars coming from the north and waited until there was a break in the southbound lanes. In doing so, he crossed immediately in front of a southbound car on the nearest southbound lane, and pulled into the middle southbound lane and then saw the defendant's car approaching in that lane from the north about 50 or 60 feet distant, traveling more than 30 miles an hour, and so fast that the defendant could not slow down or stop before a collision. Plaintiff's car was then north of the center of the junction of the streets and he was turning to the left of that point. His back wheels were still west of the center line of the boulevard when the collision took place, his car headed northeast. He turned somewhat to the left to receive the impact at a glance rather than broadside or head-on. The damage to his car was $343.45.
Plaintiff said he had entered the boulevard at about 10 to 15 miles an hour and could have stopped within about 10 feet or a little more. He said he looked north because "if there wasn't a break in the southbound traffic, I couldn't get on, and you understand the traffic is heavy * * * so I waited until the break came". the defendant "didn't show up until I got past the first lane", and he hadn't seen the defendant before because the defendant had come so fast. Plaintiff was asked:
"Q. As you entered the intersection, was the traffic proceeding north on Mill Creek practically bumper to bumper? A. Well, there was plenty of traffic there, yes, sir.
"Q. In other words, you had a solid line of cars immediately across from you? A. I wouldn't say that there was or wasn't, but there was plenty of traffic north. * * * there was plenty of northbound traffic that time of morning.
"Q. Actually there wasn't any possibility of breaking immediately into that northbound lane, was there, when you entered the intersection? A. Well, I wouldn't have started unless I thought I could get into the line. There must have been. Evidently I didn't in time, but I don't think that would matter anyhow to where I was."
When asked by the Court if he could have turned to the right and avoided the collision, he said there was too much traffic there, and he would have been heading the other way. He said he couldn't have gone on straight for fear of the defendant hitting him broadside. He said defendant was traveling over 30 miles an hour and saw him about the time he saw the defendant, and defendant's car began to sway. Plaintiff knew at once there was going to be a collision in about 15 seconds and said that defendant did all he could possibly have done to stop before the impact, considering his speed and the slick streets. Plaintiff was asked: "Q. Was there anything Mr. Hughes should have done which he didn't do? A. No, when you start to stop a car on a slick street, you better be careful".
According to the evidence offered by the defendant, he was approaching the place of the accident at the rate of about 25 to 30 miles an hour and was traveling southward downgrade in the east lane of the southbound lanes. Traffic in the northbound lanes was solid, bumper to bumper, but the traffic in the two southbound lanes was scattered and "spaced at random". Three cars were traveling alongside him on the west lane to his right, one somewhat ahead of him, which partly blocked his view. The cars were all traveling about the same speed southward. As he was going down the grade and within about a block of the place of the accident, he took his foot off the accelerator to keep from gaining speed. When within about 30 or 40 feet of the point of collision, he saw the plaintiff pulling out into the boulevard from 46th Street Terrace and cross in front of the car which was in front of and to the right of the defendant, which swerved around the rear of the plaintiff to pass him. The plaintiff proceeded into the lane in which defendant was approaching. Defendant promptly "hit" his brakes and slowed down to five or ten miles an hour. He could not turn to the left because of the solid northbound traffic, nor could he turn to the right because of the cars following behind him in the adjoining lane. Plaintiff's car came to a stop in defendant's lane and defendant's car skidded about 20 feet, colliding with plaintiff's car at an angle, making two contacts, and both cars moved thereafter about three feet. Defendant's car was damaged in the sum of $263.
Defendant said his car had not skidded before on that morning. At the time plaintiff entered the intersection, the green signal light at 47th Street and Mill Creek Boulevard, about 100 feet south of 46th Street Terrace, came on and the northbound traffic on the boulevard was solid and bumper to bumper for about two blocks north of 47th Street, and there was no "interval" in the traffic at the time at 46th Street Terrace. Defendant's car was new and in good condition.
If the plaintiff be entitled to recover on his humanitarian theory, his contributory negligence, if any, would not bar his recovery. Considering his case first in respect to the humanitarian doctrine, we believe his own testimony eliminates that theory. He testified that after defendant saw the plaintiff in the path of the defendant's car, there was nothing defendant should have done that he did not do; that defendant was going so fast "I knew he could not stop without hitting me", and "immediately I got to that second lane I knew that the other gentleman's car couldn't possibly slow down enough to save an impact and on slick streets"; "he was trying to stop but I knew the condition of the street and his speed, which wasn't above the legal limit, I knew the collision would happen 15 seconds before we came together"; "he saw me about when I saw him and he immediately tried to check his speed and he did all that was physically possible for him to do with the speed he was going and I did the only thing I could do with the few seconds I had to catch him on the side of my car and bounce him off". We hold that such admissions destroy any right of the plaintiff to recover on the humanitarian doctrine.
Considering next the plaintiff's right to recover on the ground of primary negligence of the defendant, we are first confronted with defendant's plea of contributory negligence which, if sustained by the proof, would defeat such claim of the plaintiff, regardless of defendant's negligence. Upon entering Mill Creek Boulevard from 46th Street Terrace it was plaintiff's duty to exercise the highest degree of care in the operation of his automobile, and knowing of the busy traffic then on the boulevard and the slick, inclined pavement thereof, it was his duty to have his car under such control that he could stop without collision at the intersection. Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169, 172. On plaintiff's own testimony, he waited only for a break in the southbound traffic before he drove onto the boulevard and having done so, was then unable to get off the easterly southbound lane and into the northbound lanes because of the solid northbound traffic. Also he had already cut the corner by passing to the left of the center of the intersection in making his left turn, thus placing his car nearer to defendant's approaching car. As was said in Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129: "Since the case was tried to the court alone without the aid of a jury, it is to be reviewed by this court upon both the law and the evidence as in suits of an equitable nature. Laws Mo. 1943, p. 388, sec. 114(d), Mo.R.S.A. § 847.114(d) (R.S. 1949, § 510.310, subd. 4). The question for our determination is therefore not merely one of whether the court's finding was supported by substantial evidence. On the contrary, it is our duty to make our own independent finding of the facts and reach our own conclusion as to where the weight of the evidence lies. Whatever findings the lower court may have made are in no sense binding upon us, although in matters where the evidence is conflicting and close we shall have due regard for the lower court's opportunity to judge the credibility of the witnesses".
The greater weight of the credible evidence in the case before us compels our finding that plaintiff was guilty of negligence which contributed to cause the collision and the damages he claims, and that he, therefore, is not entitled to recover upon his petition.
Defendant further contends that "the greater weight of the credible evidence warrants a judgment for the appellant on his counterclaim". The counterclaim was pleaded and submitted by the defendant on both primary negligence and the humanitarian doctrine.
Turning our attention first to the issue of the humanitarian theory as a basis for defendant's counterclaim, there was substantial evidence in the record that when defendant's car was within 30 to 60 feet of the place of the accident, defendant's view of the plaintiff's car as it entered the boulevard was partly blocked by a car in the lane to his right and slightly ahead, traveling the same direction, from which fact it must be concluded that the plaintiff's view of the defendant's approaching car was likewise blocked by the same because there was evidence that both saw each other's car at the same time, and that defendant's car was approaching at over 30 miles an hour and within 30 to 60 feet on a smooth, wet pavement downgrade; that the plaintiff was in the middle southbound lane on which defendant was approaching, and that plaintiff could not then avoid the collision by turning to the right or left, by going straight forward or by stopping. In view of such evidence, the proof was not sufficient for the court to hold the plaintiff guilty of negligence under the humanitarian theory, and it did not err in its failure to so hold.
Finally, the question remains as to plaintiff's liability to the defendant on the counterclaim based on the primary negligence of the plaintiff. Defendant testified that, with three fellow students in his car, he was operating his car downgrade on a smooth, slick, wet asphalt pavement on a four-lane boulevard, heavy with traffic in lanes immediately to his left and right, with his view partly blocked by a car to his right and slightly ahead of him; that he was traveling at 25 to 30 miles an hour as he approached within a block of 46th Street Terrace on the middle southbound lane; that he saw plaintiff's car pull into his path 40 feet ahead of him; that he could not then turn to the right or left because of traffic in the other lanes; that he immediately applied his brakes; that he "had no alternative as to where to go"; that his car skidded about 20 feet when it was stopped by the collision.
Defendant was required by law to exercise the highest degree of care in the operation of his car under all conditions then and there existing and to have his car under such control as to enable him to slow up, stop or turn aside so as to avoid injury to other persons and vehicles on the street or boulevard on which he was traveling. The greater weight of the evidence amply supports the conclusion that the defendant was guilty of negligent acts which contributed to cause the collision and the damages he sustained. The court did not err in failing to find the issues for the defendant on his counterclaim.
The judgment is reversed and the cause is remanded with directions to enter judgment for the defendant on plaintiff's petition and for the plaintiff on defendant's counterclaim.
All concur.