Immekus Ex Rel. Immekus v. Quigg

406 S.W.2d 298, 1966 Mo. App. LEXIS 589
CourtMissouri Court of Appeals
DecidedAugust 16, 1966
Docket8508
StatusPublished
Cited by19 cases

This text of 406 S.W.2d 298 (Immekus Ex Rel. Immekus v. Quigg) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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].

To determine the inferences permissible from a given set of facts, we may, within limits, take judicial notice of reaction time, braking and stopping distances, and the average walking speed of pedestrians. Losh v. Benton, Mo., 382 S.W.2d 617, 619 [1-3]; DeLay v. Ward, 364 Mo. 431, 442-443, 262 S.W.2d 628, 635-636 [9] [10] [11]; Anno., 84 A.L.R.2d 979, 980-981, Section 2 (1962). We need not collect all the speeds and distances to demonstrate exactly all the possibilities. It is sufficient to apply our computations to the period after Linda started across the street to show that she made a case upon her submitted theory. Bearing in mind that the Beckham vehicle and the defendant’s car were the only two on the street, and that the defendant’s view ahead was unobstructed, we take note that Monroe is, by the record, “a little bit over *301 twenty-six feet” wide. There was evidence that Linda did not run, but walked, from a point behind the Beckham vehicle to the place where she was struck, and there was evidence that she “went straight across the street.” The Beckham car was parked on the west side of the street, and we may assume, as defendant assumes, that it occupied the west six feet of the pavement. One witness testified that the impact “knocked [plaintiff] the opposite way of the car,” and there was evidence tending to prove that after Linda was hit, and before she rose, she was lying five feet from the east edge of the pavement. It may be inferred, then, that Linda was in view during the time she walked fifteen feet. We may notice judicially that she would walk at a speed between 2.9 feet and 4.4 feet per second. DeLay v. Ward, supra, 364 Mo. at 442, 262 S.W.2d at 635 [9]. Linda would then have been in view between 3.4 and 5 seconds, and in that time the defendant, going ten miles per hour, or approximately 14.6 feet per second, would have gone between 50 and 73 feet. Allowing the defendant a reaction time of three-quarters of a second, she would have had between 39 and 62 feet in which to take effective action. If we do not know judicially the precise distance in which an automobile traveling at ten miles per hour can be stopped, we do take judicial notice that it can be stopped in less than 39 feet. DeLay v. Ward, supra, 364 Mo. at 442-443, 262 S.W.2d at 635-636 [10]; Edwards v.

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406 S.W.2d 298, 1966 Mo. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/immekus-ex-rel-immekus-v-quigg-moctapp-1966.