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Ayres v. Key

221 S.W.2d 719, 359 Mo. 341, 1949 Mo. LEXIS 622
CourtSupreme Court of Missouri
DecidedJune 13, 1949
DocketNo. 41223.
StatusPublished
Cited by5 cases

This text of 221 S.W.2d 719 (Ayres v. Key) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ayres v. Key, 221 S.W.2d 719, 359 Mo. 341, 1949 Mo. LEXIS 622 (Mo. 1949).

Opinion

*346 ELLISON, J.

This is a suit for damages for personal injuries sustained by the plaintiff-respondent, a pedestrian, when struck by the automobile of the defendant-appellant at the southwest corner of the intersection of Grand Avenue and Lindell Boulevard iri St. Louis on March 7,1947, about 11 o’clock a. m. The plaintiff recovered a jury verdict for $10,000. The defendant appeals contending the evidence showed the plaintiff walked against and collided with the automobile instead of it striking him; and that he-made no case for the jury in any view, or at least not on all the three theories submitted by his principal instruction in the disjunctive; and that the damages awarded were excessive.

The plaintiff’s petition contained six allegations of primary negligence, and one of negligence under the humanitarian doctrine. But he abandoned the allegations of primary negligence, and submitted his case to the jury solely on the humanitarian theory of defendant’s failure to exercise the highest degree of care in three alternative particulars, namely: by stopping, or swerving, or sounding a warning, after seeing or being dutybound to see the plaintiff in a position of peril. A great number of decisions have been cited by counsel on both sides, but it seems to us the main underlying issue must turn on questions of fact.

The plaintiff was the only witness in his own behalf except three medical witnesses who testified on the nature, extent and duration of his injuries. Grand Avenue runs north and south and Lindell Boulevard east and west, intersecting at right angles. Plaintiff testified *347 he was on the sidewalk at the southwest corner of the intersection waiting to cross Lindell to the Melbourne ITotel at the northwest corner. Five or six other pedestrians also were there. At the outset the signal lights favored traffic moving east and west on Lindell. The group were waiting for the lights to change and release north and south traffic on Grand Avenue. From his position plaintiff could have looked 90 degrees east over his right shoulder and seen the Lin-dell traffic light at the southeast corner of the intersection, change to red. Or he could have looked to the northeast corner of the intersection and seen the Grand traffic light change to green. From the testimony of a witness for defendant, it appears that in the process of changing from green to red or vice versa, the lights would show an intermediate amber color.

Plaintiff testified he did not see the signal lights change. But he did see the Grand Avenue traffic start to move south, and the others in his group of pedestrians advanced north onto the Lindell Boulevard pavement some three to six feet out from the south sidewalk. He went along with them and was furthest east, about where the white lines for the north and south crOss-walk were marked on the pavement. One of the photographs in evidence, Plaintiff’s Exhibit 23, is set out at the end of this opinion. It looks west on Lindell Boulevard from east of Grand Avenue. It shows automobiles parked westerly along both the north and south curb lines of Lindell Boulevard for a considerable distance, beginning a car length or two (estimated) west of the line of Grand Avenue and a fire hydrant at that cornier. A witness for defendant testified there were two traffic lanes on each side of the center line on Lindell in addition to the parking space on the twro sides.

Apparently the group of pedestrians had stepped out into the open space on the south side of Lindell east of the parked automobiles. This group of pedestrians may have “jumped the gun” a little in moving out into the street, or have started as soon as the traffic light on Grand Avenue changed from red to amber. At any rate the eastbound line of motor traffic on Lindell was still traveling east when the pedestrian group moved out abreast from the south side of the street to a position three to six feet north of the south curb. The motor traffic ivas still further out moving parallel to and south of the center line of the street. Defendant’s automobile was the last in the line or nearly so. Plaintiff testified that he could see it advancing 40 to 50 feet away at a speed which he estimated to be 25 or 30 miles per hour. The automobile continued at undiminished speed without sounding a warning, and when up near the west line of Grand Avenue suddenly made a turn to the right into Grand Avenue, cutting the corner and sideswiping and striking plaintiff with the right front fender and breaking his leg.

*348

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Related

Losh v. Benton
382 S.W.2d 617 (Supreme Court of Missouri, 1964)
Dister v. Ludwig
240 S.W.2d 694 (Supreme Court of Missouri, 1951)
Johnson v. St. Louis Public Service Co.
237 S.W.2d 136 (Supreme Court of Missouri, 1951)
Hyman v. Great Atlantic & Pacific Tea Co.
225 S.W.2d 734 (Supreme Court of Missouri, 1949)
Harrell v. Berberich
222 S.W.2d 733 (Supreme Court of Missouri, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
221 S.W.2d 719, 359 Mo. 341, 1949 Mo. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayres-v-key-mo-1949.