For injuries allegedly sustained in a “no eyewitness” accident in the City of Dexter, Missouri, on the afternoon of Saturday, October 31, 1964, plaintiff, then four years of age, obtained a jury verdict for $10,000 against defendant. From the judgment entered thereupon, as subsequently reduced by remittitur to $7,000, defendant appeals.
*196 Defendant’s primary contention that plaintiff did not make a submissible case requires a detailed review of the evidence. The accident occurred in a residential area on Vine, an east-west street, in the block between Elm and Locust. A north-south alley, eleven feet six inches in width, intersects Vine near the center of that block, Elm being 191 feet east of the center line of the alley and Locust being 188 feet west of that center line. The traveled blacktop roadway on Vine is 20 feet in width. Along the south side of the roadway, there is a dirt parking space ten feet in width and, south of the parking space, first a concrete curb, next a “grassy area” or parkway six feet six inches in width, and then a paved sidewalk four feet in width. Along the north side of the roadway, there is a dirt parking space twelve feet six inches in width (with no curb or parkway) bounded on the north by a paved sidewalk. Much of this section of Vine is shaded by overhanging trees. In the south parkway, there is a venerable tree with very large trunk just east of the north-south alley, a row of thick bushes running east from that tree along the front of the first lot east of the аlley, and another tree with somewhat smaller trunk a short distance west of the alley. In the north parking space, other large trees stand both east and west of the alley. Plaintiff Willie resided with his mother and stepfather (Chip-man by name) in the first house west of the alley on the north side of Vine. The front of the Chipman house was fifteen feet north of the north sidewalk on Vine and the east end of that house was twenty feet west of the center line of the north-south alley.
Some thirty minutes prior to the accident, plaintiff’s witness Nelson, a telephone repairman, parked the pickup truck used in his work, headed west, “approximately in front” of the Chipman house and “close” to the north sidewalk. His mission was to check “cаble trouble in the alley.” In Nelson’s words, “from the time I arrived there the little boy [plaintiff] was out in the yard, right in front of [the Chipman] house, playing with a little red wagon . . . and he was up on my truck and I was getting him off the truck, and I started [south from Vine] down the alley there hunting for cable trouble.” Using a “stick” or “rod” running on rollers along the overhead cable, Nelson located the trouble at a point in the alley “approximately a hundred feet . that’s just a guess” south of the south sidewalk on Vine. Plaintiff followed Nelson down the alley to the point of the cable trouble and was last seen (prior to the accident) at that point “approximatеly a hundred feet down there” south of the south sidewalk. Telling plaintiff “not to bother my equipment,” Nelson returned to his parked truck “to get the tools out of the [north] side of the truck to fix the cable.” He had no idea “how long it took” to walk back to the truck, but he “walked at the normal rate of speed.”
While on the north side of his truck, Nelson first noticed defendant’s 1960 Pontiac automobile westbound on Vine, then “approximately 100, 150 feet” east of him, and traveling (so he thought on direct examination) at “approximately ten, five to ten miles an hour” or (so he agreed on redirect examination) perhaps “faster than ten miles an hour.” 1 Thereafter, Nelson did not watch, but remainéd aware of, defendant’s approaching automobile— “from where I was standing, even out of the side of your eyes you can see a car coming down the street there.” He thought that defendant had maintained about the same speed, but he declined to estimate the elapsed time between his initial sighting of defendant’s, automobile and the moment of accident. Defendant’s course of travel was “on his own proper side of the street,” i. e., on his right-hand (the north) side of Vine.
As we have noted, Nelson was on the north side of his parked truck; but, when *197 asked “whether or not your view was obstructed of the traveled portion of the . . street,” he replied, “no, I could see over the top of the truck.” Nevertheless, he testified emphatically that, after leaving the point of cable trouble in the alley, he did not see plaintiff again prior to the accident, and that he did not see the accident itself. However, he “heard the thud” and, running around his truck, went to plaintiff lying on the blacktop “sort of doubled up” at a point located by him (Nelson) as in the center of the 20-foot blacktop roadway, “slightly ahead” or west of his parked pickup, and 50 to 60 feet west of the center linе of the north-south alley. Defendant’s automobile had stopped “just at an angle there . . . headed northwest.”
Plaintiff’s witness Capps, whose back yard abutted the north-south alley near the point of cable trouble (the north line of his lot was 106 feet south of the south sidewalk on Vine), had, while emptying trash in an alley receptacle, seen repairman Nelson and “a child ... I suppose it was a boy” under the cable where Nelson was working. “Later, I don’t know how many minutes it was ... I left the alley and went back in the yard, and I heard a noise ... it would be pretty hard to describe . well, I heard an impact of some kind . . I heard tires squealing, I alsо heard a thud, which come first I couldn’t swear to it . . whose thud it was and whose tires it was, I don’t know.” Anyway, Capps “went to the direction of the noise . . . over on Vine Street” and found plaintiff lying “close to the center line of the street” at a point which was “west of the telephone truck.” Capps’ initial statement that, when he arrived at the scene of accident, defendant’s automobile was standing “on the north side of the street, maybe a car length or a car length and a half beyond [west of] the boy” must be read in connection with his subsequent explanation and elaboration that “it was parked on the shoulder when I got there . . . somewhat north of where the normal traffic lane is . . .he had pulled free of traffic.”
The only other witness whose testimony in any wise pertained to the accident itself was plaintiff’s witness Ruth Corlis who was “sitting there crocheting” in the house west of the Chipman house when (as she said at one point) “I heard a bump like” or (as she put it later) “I didn’t hear anything any more than just the two cars that sounded like a thump or two cars maybe kind of bumped a little.” When Miss Cor-lis arose and went to the window — “I didn’t go out of the house” — she saw “two cars . standing there, one on the south side of [Vine] street and one on the north side, and a bunch of folks had got out of the cars and was standing there in the middle of the street,” all of which prompted the witness to volunteer “I think it was a car wreck.” There was no known eyewitness to the accident.
Plaintiff also introduced in evidence certain interrogatories propounded to defendant and his answers thereto. The substance of those answers was that no eastbound traffic on Vine had passed his automobile “immediately prior to the accident” and he was meeting no such “oncoming traffic at the time of the accident”; that nothing had obstructed his “vision of Vine Street just prior to the accident”; that he had not seen plaintiff prior to the accident and therefore had sounded no warning; and that “the point of impact” between his automobile and plaintiff had been “about ten feet west of the [north-south] alley.”
After his motion for a directed verdict at the close of plaintiff’s case was overruled, defendant offered no evidence. Whereupon, plaintiff submitted his case to the jury on a single assignment of primary negligence, i. e., that “defendant failed to keep a careful lookout.” By that submission, plaintiff abandoned all other pleaded grounds of negligence
2
and, in determining
*198
the sufficiency of the evidence to make a prima faсie case, we must confine ourselves to the sole ground submitted.
3
In that inquiry, we consider the evidence in the light most favorable to plaintiff and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence [Ornder v. Childers, Mo.,
Plaintiff’s theory of submissibility is a concatenation of assumptions (in some particulars alternative and diverse), combined with precise mathematical calculations employing imprecise estimates or approximations of speeds, and colored with an occasional dash of inaccuracy. The basic assumption is that, immediately prior to the accident, plaintiff approached the course of defendant’s automobile from the
south.
As developed in plaintiff’s brief, counsel’s theory of submissibility then encompasses and harnesses these further assumptions, to wit (1) that, as defendant’s automobile moved west on Vine, plaintiff traveled thirty feet six inches (i. e., four feet across the south sidewalk, six feet six inches across the south parkway, ten feet across the south parking space, and ten feet across the south half of the blacktop roadway) “within plain view of defendant”; (2) that plaintiff
walked
that distance at two to three miles per hour, i. e., at 2.9 to 4.4 feet per second, in 6.9 to 10.5 seconds [Bunch v. Mueller,
In support of their insistence that the evidence reasonably permitted an inference (basic to their theory of submissibility) that plaintiff approached defendant’s automobile from the south but clearly forbade a contrary inference that he had approached it from the north, counsel present a two-prongеd argument, to wit, (a) that, after repairman Nelson left the point of cable *199 trouble and started north in the alley, plaintiff could not have returned to the north side of Vine because, if he had done so, Nelson would have seen him, and (b) that the elapsed time was insufficient to have permitted plaintiff’s return to the north side of the street prior to the accident.
Neither prong is persuasive. True, if plaintiff had overtaken and passed around Nelson
in the alley,
the latter no doubt would have noticed the boy. However, there is a house on the south side of Vine just west of the north-south alley; nothing in the record indicates that either the lоt or the north-south alley is fenced; and, with the acts of a child four years of age being thoughtless, impulsive and “wholly unpredictable” [Vietmeier v. Voss, Mo.,
The argument of plaintiff’s counsel as to elapsed time runs along this line. “The total distance traveled by Nelson” from the point of cable trouble to the north side of his parked pickup on Vine, so they categorically declare, “was 151 feet” (including “approximately a hundred feet . . . that’s just a guess” in the alley, four feet across the south sidewalk, six feet six inches across the south parkway, ten feet across the south parking space, twenty feet across the blacktop roadway, and an arbitrary allowance of only
ten feet six inches
from the north side of the blacktop to thе tool chest on the north side of his pickup which was parked “close” to the north sidewalk
twelve feet six inches
north of the blacktop and “approximately in front” of the Chipman house, the
east end
of which was
twenty feet
west of the center line of the alley). Confidently proceeding to precise mathematical computations employing not only the imprecise estimate that Nelson walked at a speed of two to three miles per hour, i. e., at 2.9 to 4.4 feet per second [DeLay v. Ward, supra,
Turning to defendant’s westbound automobile, counsel say that “the jury could have found that defendant traveled a distance of 150 feet at five miles per hour” and, perhaps wearying (as we are) of these repeated exercises in the dissection of seconds, momentarily lapse into inexactitude with the estimate that “this would take . . 20 seconds.” Then, in a continuing effort to minimize the period immediately prior to the accident during which plaintiff’s movements were wholly unaccounted for, counsеl assert that this 20 seconds was “consumed . . . either just before or at the time Nelson got to his truck,” offering in support of this conclusion one segment of a long narrative statement by Nelson to the *200 effect that he had walked around the pickup to get tools “out of the side of the truck . . . and in the meantime I saw Willis [defendant] coming down the street.” But, taking Nelson’s testimony as a whole, as we must do, 7 it is clear that this additional period approximated by counsel at 20 seconds began after Nelson had reached the north side of his parked pickup and had been there an undisclosed (although presumably brief) period of time. For, when specifically asked “where you were at the first time you noticed [defendant’s] car,” Nelson answered in plain and unambiguous language, “I was on the north side of my truck”; and, it will be remembered that thereafter Nelson saw the automobile out of the corner of his eye “all the way up the street.” 8 In summary, we think the conclusion inescapable that the evidence neither compelled an inference that plaintiff approached the course of defendant’s automobile from the south nor forbade an inference that he approached it from the north, and that any finding on this basic factual issue would have rested on nothing more than sheer speculation and shimmering surmise.
If plaintiff did approach from the south side of Vine, the evidence would not have required or supported a finding, in accordance with the assumption in his brief, that he (plaintiff) traveled thirty feet six inches, i. e., from the south edge of the south sidewalk on Vine to the center of the blacktop roadway, “within plain view of defendant.” This for the reason that, as counsel quickly conceded in oral argument, no inference properly could have been drawn as to the point at which plaintiff crossed the south sidewalk or parkway and at certain points the trunks of large trees would have hidden him or interfered with his discovery until hе reached the south curb. Of course, as counsel hastened to point out, the south curb is 20 feet from the center of the blacktop roadway where plaintiff was lying after the accident and, if plaintiff had approached from the south, he would have been in plain sight while moving from the curb to the point of accident. However, if plaintiff had entered the roadway from the north at a point about even with that where he was lying after the accident, i. e., “slightly ahead” or west of Nelson’s parked pickup, he would have been visible to defendant while he (plaintiff) was moving a shorter distance not capable оf precise ascertainment on the transcript before us.
In this connection, it should be emphasized that there was no evidence as to whether defendant’s automobile had been examined after the accident in an effort to determine what part .thereof had come in contact with plaintiff or, if such examination had been made, what it revealed. As a result of the accident, plaintiff suffered a “moderate to moderately severe concussion” resulting in hospitalization for sixteen days. But there was no fracture, the only marks on plaintiff were an abraded and bruised area on the left sidе of his head and a bruised area “on his left flank,” and there was no indication that defendant’s automobile had run over plaintiff.
The submitted assignment of negligence was that “defendant failed to keep a careful lookout.” To support their contention that a submissible case was made thereon, plaintiff’s counsel direct us to some of the Missouri cases stating certain familiar principles, to wit, that the continuous and
*201
inescapable duty to maintain a vigilant lookout ahead and laterally ahead rested upon defendant;
9
that, to satisfy and discharge that duty, he was required to look in such observant manner аs to enable him to see what one in the exercise of the highest degree of care for the safety of himself and others could and should have seen under similar circumstances;
10
that such duty imposed the obligation (in the language of the brief) “to observe plaintiff beyond the traveled portion of the road,” excepting (as we add) insofar as defendant’s observation was obstructed;
11
that, having been charged with the duty so to look, “he must be held to have seen what looking would have revealed” ;
12
and that his failure to see that which was plainly visible would have constituted negligence [Schmidt v. Allen, Mo.,
Assuming (without, however, so deciding)
that the meager circumstantial evidence would have permitted an inference that, in the exercise of the highest degree of care, defendant could and should have seen plaintiff
at some time and place
prior to the accident, it might have been found that defendant was negligent in failing to maintain the required lookout. But that, in and of itself, would not have given rise to a cause of action, for there is a clear distinction between
negligence
“in its colloquial meaning,” i. e., the want of the required degree of care, and
actionable negligence.
Cameron v. Small, Mo.,
Failure to keep a vigilant lookout, negligent though it may be, is not actionable and submissible in the absence of substantial evidence from which the triers of the facts reasonably may find that, in the exercise of the highest degree of care, defendant could and should have seen plaintiff
in time thereafter to have taken effective precautionary action.
15
Thus the court pointed out in Thomas v. Wade, Mo. (banc),
This brings us to the question posed and answered in this fashion in Thomas v. Wade, supra,
It is true that motorists are charged with recognition that a child of tender years, “being engaged in play or other preoccupations on or near a roadway is almost entirely devoid of an appreciation of danger” [Ozbun v. Vance, Mo.,
In attempting to piece out plaintiff’s case, his counsel argue that, since defendant did not testify, plaintiff was “entitled to a presumption that . . . his [defendant’s] testimony would have been unfavorable and damaging.” The law on this subject is that, “where matters charged against a party are peculiarly within the knowledge of the party charged, the failure of such party to appear and testify at the trial carries with it an unfavorable and damaging presumption (Parish v. Casner [Mo.Sup.]
A “case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company,
*204
We find the conclusion inescapable that the lean circumstantial evidence in the instant case would not reasonably have permitted a finding by the jury upon the first essential element of plaintiff’s cause of action, i. e., “some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant” [see cases cited marginally in note 14] or, otherwise phrased, “a breach of some duty owed to [plaintiff] under the particular circumstances existing at the time of the act or omission complained of.” Kelley v. National Leаd Co., supra,
The record compels (so we are convinced) the same conclusion with respect to submissibility of the essential element of “causation.” Biscoe v. Kowalski, Mo.,
Plaintiff leans heavily on our case of Hildreth v. Key, Mo.App.,
Plaintiff’s counsel, known to us as diligent and dedicated practitioners, upon oral argument frankly conceded their inability to locate any eyewitness to the accident or to develop any material and relevant information in addition to that reflected in the transcript before us. Although defendant was not called as a witness, the nature and extent of his knowledge were probed and disclosed by that method of pretrial discovery selected by capable counsel, i. e., by numerous interrogatories and answers thereto (at least twenty-three in number), of which six were offered аnd received in evidence. V.A.M.R. Rule 56.01. No pleaded theory, on which plaintiff might make a submissible case with the witnesses and evidence available, is suggested or apparent. (See our recent discussion of this subject, per Titus, J., in Grissom v. Handley, Mo.App.,
The judgment for plaintiff is reversed.
Notes
. For appropriate observations concerning the force and effect of estimates of this character, see Davis v. St. Louis Public Sеrvice Co., Mo.,
. Burnett v. St. Louis Public Service Co., Mo.,
. Evett v. Corbin, Mo.,
. Kirks v. Waller, Mo.,
. In Vietmeier v. Voss, Mo.,
. The quoted distances are approximate, not precise as they would suggest. At five miles per hour, defendant’s automobile would have traveled 7.33 feet per second and, in the stated period of 6.9 to 10.5 seconds, between 50.58 and 76.97 feet.
. Dimond v. Terminal R.R. Ass’n. of St. Louis,
. See Batson v. Ormsbee, Mo.App.,
. Stradford v. Bluefeather, Mo.,
. Braun v. Hoffmeister, Mo.,
. Williams v. Ricklemann, Mo.,
. Smith v. Kansas City Public Service Co.,
. Burnett v. St. Louis Public Service Co., Mo.,
. Reichholdt v. Union Electric Co., Mo.,
. Zalle v. Underwood, Mo.,
. Bahl v. Miles,
. Branstetter v. Gerdeman,
. Gibson v. Newhouse, Mo.,