Immekus Ex Rel. Immekus v. Quigg

406 S.W.2d 298, 1966 Mo. App. LEXIS 589
Missouri Court of Appeals·Decided August 16, 1966·No. 8508·Published·Cited by 19 cases

Opinion

HOGAN, Judge.

This is an action for personal injuries sustained, according to the plaintiff, when she was struck by the defendant’s automobile while crossing the street on foot. Plaintiff has had judgment on a jury verdict for $5,000.00, and the defendant has appealed. Several points have been briefed and argued in this court, but we find it necessary to consider only two of them. One of the defendant’s contentions is that there is no evidentiary basis for either of the two hypotheses of negligence submitted, and we therefore briefly review the evidence. It may be noted that the cause went to the jury on the defendant’s failure to keep a careful lookout and her failure to stop after danger of striking the plaintiff became apparent. The defendant neither pleaded nor attempted to submit the plaintiff’s contributory negligence.

On November 16, 1962, Linda Immekus, then seven years old, was taken home from school by a Mrs. Doris Beckham. The Immekus residence was on the east side of Monroe Street in Joplin, Missouri. Monroe is described as a blacktop street, “a little bit over twenty-six feet” wide, without curbs. Mrs. Beckham stopped “across the street” from the Immekus residence on the west side of Monroe, with all four wheels on the pavement. Linda was in the back seat.

At the same time, the defendant, also taking children home from school, was driving north on Monroe. It was between 3:00 and 4:00 P.M. when this accident occurred, and there was no oncoming traffic for the defendant except the Beckham car. No automobiles were parked on either side of the street. As Mrs. Quigg approached the Beckham car, going north on the east side of the street, she saw Mrs. Beckham *300 and saw that there were children in the car with her. Defendant estimated that her speed was ten to fifteen miles per hour. When defendant was in the “middle of the block,” “several car lengths” from the Beck-ham vehicle, she noticed the door on the right side of Mrs. Beckham’s car opening, and reduced her speed slightly. She then saw Linda at the back of the other car.

Plaintiff’s evidence was that Linda walked around the rear of Mrs. Beckham’s car, looked both ways, and started walking across the street. Both Mrs. Beckham and her son, Mike, age ten, were positive in their assertion that Linda did not run, but that she walked. The plaintiff’s own testimony is somewhat indefinite as to her exact position in the street when she was struck, but from Mrs. Immekus’ testimony that Linda was lying about five feet from the east edge of the pavement after the accident and before she moved, and from Mike Beckham’s testimony that she was thrown forward when she was hit, it may be inferred that Linda was struck about five feet from the east edge of the pavement. Mike Beckham, who was plaintiff’s only independent eyewitness to the accident, testified that the defendant’s vehicle struck the plaintiff but did not run over her. Plaintiff had other evidence indicating that, at the time of the accident and again a day or two afterward, the defendant had said she hit the plaintiff, and Mrs. Beckham stated that the defendant had said, immediately following the accident, that she did not see the plaintiff. It is conceded that the only visible marks of plaintiff’s injury were a skinned hand and a bruise, “about three inches across,” on her right hip.

Defendant, on the other hand, denied that her vehicle ever came in contact with the plaintiff. Rather, Mrs. Quigg testified, Linda “looked right at me,” then “darted right out in front of me.” As the plaintiff came to a point two or three feet ahead of the Quigg vehicle, and “a foot to the [west] side,” defendant testified, plaintiff “was standing there holding a book and she looked at me and she had her mouth open and she was standing on one foot and she had lost her shoe and she was turned and she was off balance and she fell.” Defendant’s testimony was that she was “afraid the child might be hurt”; consequently, she “got out to see what had happened,” but actually had stopped her vehicle and was outside in the street when plaintiff fell.

The defendant’s argument that the plaintiff’s instructions are not supported by the evidence is lengthy and diffuse, and we need not consider all its aspects in detail. It has several weaknesses, principally that it assumes inferences less favorable than those which the evidence in fact supports. The plaintiff is entitled to a consideration of the evidence and the reasonable inferences therefrom in a light most favorable to her submitted theory of the action, Rudin v. Moss, Mo., 349 S.W.2d 893, 894 [1], and since the plaintiff’s case was based in considerable part upon varying estimates of speed and distance, she is entitled to have the sufficiency of her case judged according to the “happiest (from his standpoint) and most favorable combination of facts which can be picked or inferred from the whole evidence * * Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 27 [4].

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Immekus Ex Rel. Immekus v. Quigg, 406 S.W.2d 298, 1966 Mo. App. LEXIS 589 (Mo. Ct. App. 1966).

406 S.W.2d 298 (Immekus Ex Rel. Immekus v. Quigg) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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