In this automobile collision case defendant Williams pleaded and submitted (a) primary negligence in exceeding ordinance speed of 30 miles per hour. and (b) humanitarian negligence in failing to swerve or slacken speed. At close. of the case plaintiff Fuzzell moved for directed verdict on the grounds defendant (1) failed to prove primary negligence, _ (2) failed to prove humanitarian negligence, (3) was guilty of contributory negligence. A jury having returned a,.verdict against the petition and in favor of the counterclaim, the plaintiff filed timely notice under Section 510.290,. RSMo 1949, V.A.M.S., for judgment in accordance with the motion for directed verdict. The same being overruled, he has appealed.
No motion for new trial was filed, and we are therefore left to consider only whether defendant made a submissible case on her counterclaim. If. the evidence substantiates her recovery on either primary or ’ humanitarian negligence the case must, be affirmed. DeLay v. Ward,
We endeavor first to set forth the facts from a viewpoint most favorable- to the defendant. The positions of the parties being reversed, it will be less confusing to refer to them by' name. We have had some difficulty in interpreting a portion of the evidence for the reason that some of the witnesses were examined and the tes-tiffiony they gave was in reference to a plat which appellant Used, offered and had received in evidence as an exhibit. This plat exhibit does not appear in or with the transcript, and in the absence of such, where the 'testimony is not clear by reason of the lack of the exhibit to which it refers, we will take the intendments as. favorable to the trial court’s ruling and against, the appellant. Smith v. Wilson, Mo.App.,
The collision occurred at the junction of South' Jackson Avenue and Eighth Street in Kennett, Missouri. This was a “T” intersection. Jackson Street runs continuously in an approximate north and south direction, while Eighth Street approaches from the east and dead-ends 'where it enters Jackson. On the west side of Jackson and opposite the Eighth Street entrance is a grocery store which sits back approxi--mately 30 feet to the west, and ‘the space - between this store and the west side of Jackson is open, unditched, unobstructed and upon approximate street levél. It is used presumably by customers of the store in driving and parking their automobiles, although it was not so occupied at the time of the occurrence here involved.’ Both streets at this location are approximately-level. -Neither appears to have had paving,,; curb, gutter or sidewalks. Jackson was finished with'gravel and Eighth, the entering thoroughfare, was described as being a sand street. /Appellant Fuzzell’s witness ' says Jackson was 30 feet-' wide. The width of Eighth-is, not made-clear, although ap- , pellant’s counsel in his examination assumed it to be 40 feet, in width. Nor is the width of the “traveled portion” oj the two streets established with certainty. At the;southeast corner of this, intersection was a picket- fence, yvhich extended from the corner south along ’the east side p-f Jackson and, for some distance not shown in the evidence, easterly along the south side of Eighth Street. Interspersed in or imposed-upon and about this fence was a hedge made of shrubs or vines, or both, which reached some-,six feet in height. There.-was substantial evidence from which a. jury could have . fo.und that ■ such hedge effectively blocked the vision of persons in automobiles as they neared and were about to enter the intersection from the east .or south. A stop sign was located on the north side of Eighth Street. This was placed somer . where between four and seven feet back or east from the intersection.
Shortly prior to the collision appellant Fuzzell was driving a Buick coming up Jackson and approaching the intersection from the south. At the same time respondent Williams approached in a Chevrolet coming from the east and intending to make the turn to her left and go south. The collision occurred at some point, not definitely shown, shortly after the front end of the Williams Chevrolet had entered upon the intersection. Mrs. Williams testified that in coming up from the east she stopped with the front end of her car “just almost” up to (east ,of) the stop sign. After making her stop she changed gears and was “just’"barely moving” as she proceeded toward entering Jackson’Street.
“Q. Now,- Mrs. Williams, which side of the road, that is, which side of 8th Street, and I indicate the diagram, 'which side of 8th Street were you on ■ ás you approached this ■ intersection ? A.' I -was on -the right hand side.
“Q. On the right hand side? A. Yes, sir.- :
,. “Q.; All the way over to the right? A. Well, I am -sure I was, until I started into the turn, where I could pull out enough to see South Jackson.
“Q. Now, Mrs. Williams, where were you in relation to the south line of 8th Street, when the front of your car was at the, even with the fence along South Jackson, where was your car in relation to the south line of 8th Street? A. Well, Mr. Dalton, I am no judge of feet,—
“Q. When the front of your car was even with this .fence, you know -where the fence is? A. .Yes, sir.
“Q. When the front of your car was even with that fence, where was the left side of your automobile in relation to South 8th .Street? A. Well, I am sure it must have been somewhere near the center of the street. As I said, I don’t know exactly the amount ¡of feet.
*375 “Q. The center o-f 8th Street? A. Yes, sir, left side of my car was.”
At this point she still could not see down Jackson Street to the south. She continued moving, going so slowly that she said the speedometer was not registering, and at all events less than five miles per hour, and the front end of her car went out into Jackson Street. A fair inference is that the car went into the intersection at some angle, because the only damage to her car indicated an impact at the right front corner, and the force of such impact drove her car backward so that when the sound and fury of the collision were done her car was sitting on Eighth Street, the front facing the intersection, some six feet from the Jackson Street line. Appellant Fuzzell’s witness Ramsey testified that after the collision he found some debris lying some 12 feet northwest of the southeast corner of the intersection, but at what angle, and what area the debris covered, and whether that he mentioned was the southernmost or easternmost part of the debris area is not shown. As to just what speed Fuzzell was making when he entered the intersection the jury had considerable choice. Mrs. Williams said it was “terrific” at the- time of the impact: The extent of the damage to the automobiles, and the fact that -the Williams car was, while apparently in gear, by a glancing blow driven backward and completely off the intersection a distance of at least six feet, would permit the inference that the speed of Fuzzell’s car was high. Mrs. Williams’s witness Knight testified he saw the Fuzzell Buick coming up Jackson “just this side of” the next intersection to the south and at that time it was going 35 to 40 miles per hour. Fuzzell’s witness Ramsey testified he examined the tracks made by Fuzzell’s Buick and ascertained that he first applied his brakes some 50 or 51 feet south of the intersection; that these tracks continued north until about 25 to 30 feet south of the south line of the intersection, at which point they began to bear to the left, and at the time they reached some point in the intersection (just where is not made clear) they had veered to the left from their original course some four to six feet. Such tracks continued'in a swerve to the left (evidently after the impact) and then swerved back to the right and went into the ditch on the east side of Jackson Street some 50 feet north ' from where the Williams car was sitting after the accident. Appellant Fuzzell himself testified that-Jackson was rough or “washboard,” that he approached the intersection at a speed of 20 to 25 miles per hour, that he arrived at the intersection before the Chevrolet, that it first came into his view when- he was 10 or 15 feet south and that -when he saw it he immediately tried to jerk his car to the left in order to avoid the collision, but the Chevrolet ran into him. Fie stated that he had no recollection of putting on his brakes, that the whole of his Buick (some 17 to 20 feet long) was in the intersection with his right wheel about the-middle of Jackson Street at the time the collision occurred; that because of the impact he lost control of his car and went into the ditch on up the east side of Jackson north of the intersection. Damage to the Fuzzell Buick was on the front and along the right side.
In passing upon the question it is not our province to 'determine who, if anyone, -was ■ guilty of negligence, but -whether there was any probative evidence by which the jury could have reached its cpnclusion. If so the verdict, must be upheld. In making our examination we must take and assume as true all evidence, whether coming from plaintiff’s or defendant’s witnesses, which is favorable to Mrs. Williams and indulge all reasonable inferences therefrom in her favor. Feldotto v. St. Louis Public Service Co., Mo.App.,
With this as our guide we cannot say the jury could not have found that Fuzzell was guilty of negligence in driving his automobile in excess of the ordinance speed of 30 miles per hour. Neither can we say that reasonable minds were necessarily required to find Mrs. Williams was guilty of contributory negligence under the circumstances shown here.
Mrs. Williams testified she did not see Fuzzell’s car until the time of the impact, and appellant directs considerable of his argument in respect to contributory negligence as a matter of law to the fact that she said she. did not look to the south. This testimony is as follows:
“Q. Now, as you made your stop and when you made your stop, did you stop- and look both directions for traffic proceeding either direction on South Jackson Street? A. You couldn’t see either direction.
“Q. I didn’t ask you that, ma’am, did you look ? A. I didn’t look.
“Q. You didn’t look? A. I didn’t look, because you can’t see. All you can see is straight ahead of you.”
We think this contention cannot stand for the following reasons. First, her statement is susceptible of the interpretation that what the witness really meant was that she did not see or visualize because of the impossibility, rather than that she made no attempt to do-so. Second, it should be noted that this testimony-refers to the time she stopped with the front of her car “almost up to” the stop sign, which was some four to seven feet back from the Jackson Street line. After this stop she changed gears and proceeded onward in her attempt to enter Jackson Street and make a turn to her left. There is no testimony that she failed to look or attempt to observe from that time onward. There is evidence from which the jury could well have found that the intersection was blind from there on and until the front end of her car protruded into Jackson. On one occasion Mrs. Williams testified:
“Q. What was necessary for you to do before you could see south on South Jackson? A. Well, I never did get to see down south. I would have had to even roll out further into the street. He got the front end of my car before I got up far enough for me to see.
“Q. In other words, you hadn’t gotten into South Jackson? A. No, sir, not far enough for me to have vision south.”
It is true that one who is under a duty to look is charged with seeing that which- could have been seen. Branscum
v.
Glaser, Mo. Sup.,
Having found the defendant made a submissible case on primary negligence, there is no need to lengthen this. opinion by considering whether plaintiff was liable under the humanitarian doctrine, and the case must be affirmed. It is so ordered.