The plaintiff, Eugene Stegall, sued the ■defendant. Stephen L. Wilson, for $10,-000.00 for personal injuries he claimed he received as a result of a collision between his motor scooter and attached sidecar and defendant Wilson’s automobile. The verdict and judgment were for Wilson, the defendant, and Stegall, the plaintiff, appeals.
Stegall was employed as a delivery man by the Colgan Engraving Company in Kansas City. Colgan is located on the north side of Tenth Street between Central and Broadway Streets. Tenth Street runs east and west. It has two north lanes for westbound traffic and two south lanes for eastbound traffic. It also has one lane for parking on both the north and south sides of these traffic lanes. There is a parking lot adjacent to the Colgan building. There Stegall parked his motor scooter and attached sidecar when it was not in use for deliveries.
Stegall testified as follows: On the day of the collision he was ordered to deliver some packages. He placed them in the sidecar, started the scooter’s motor and proceeded south on the parking lot driveway to the north edge of Tenth Street and then stopped. He waited for traffic to clear. When it cleared, he proceeded south across the parking lane and the two traffic lanes, all on the north side of the street, and to the street’s center. As he crossed these lanes, he was traveling in a southeasterly direction, but at an angle so “slight” that he described his course from the parking lot to the center of the street as “almost point blank”. When he reached the center of the street he was traveling 4 or 5 miles an hour. Then he increased his speed to 8 or 9 miles an hour and drove into the eastbound right hand lane of the street and turned east. At that time he saw defendant Wilson’s automobile in the eastbound left lane adjacent to his own right lane standing still and headed east at a distance of 30 or 35 feet ahead of him. He testified “Q Then you did proceed into that — or on that right hand lane all the way up to where the collision occurred? A Yes, I did. Q And was the lane that you were in — or describe to the jury what there was in the lane that you were in on up to the corner ahead of you ? A There wasn’t anything in the lane I was in. His car — it’s a two lane going each way — his car was in the center (eastbound) lane next to the dividing line (of the street). I was in the far right (adjacent eastbound) lane and I continued on up the street in the far right lane and there was no cars in the lane "at all. Q Was there any cars in the lane ahead of Mr. Wilson? A No, there wasn’t. Q Was there any cars behind him? A No, *661 there wasn’t. Q Could you see anything in the street that might obstruct or block the vision to either you or him? A No.” (Parentheses ours) As he proceeded directly east in his own lane to a point within 10 or IS feet of Wilson’s automobile, it was continuing to stand still in its own lane. On the instant, Wilson, without giving any sort of signal, began backing his automobile from his own left hand lane into Stegall’s right hand lane. At that moment Stegall’s speed was 10 or 12 miles an hour. The vehicles collided.
Wilson admitted he gave no signal of any sort before he began backing his automobile into Stegall’s lane. He admitted that he was wholly unaware of the presence of Stegall’s motor scooter on the street until immediately after the collision. He admitted that the right rear end of his automobile was 1 to 2 feet inside Stegall’s lane and that his vehicle was still moving backward at the time the vehicles collided. He stated the purpose of his backing maneuver was to cross Stegall’s lane and to enter the parking lane just beyond and park his automobile. Stegall testified that when Wilson started backing into his lane it was too late for him to take any precautionary measure to avoid the collision. There was no evidence concerning the distance in which the motor scooter moving 10 to 12 miles an hour could be stopped. There was no evidence concerning its maneuverability, except Stegall’s testimony that he could not swerve sharply to the right and away from Wilson’s backing automobile without danger of his scooter turning over and likely throwing him into Wilson’s path.
The trial court instructed the jury that it should find for Wilson, whether or not he was negligent, if it believed: First, that Stegall failed to keep a careful lookout; and second, that Stegall’s conduct, in failing to keep such lookout, was negligence; and third, that such negligence directly caused or contributed to cause any damage Stegall might have sustained. M.A.I. 28.01. Stegall asserts that there is no evidence in this record that he failed to keep a careful lookout and that this instruction was reversible error.
The burden rests on Wilson to point to substantial evidence in this record that Stegall was contributorily negligent by failing to keep such a lookout. Clark v. Howard, Mo.App.,
We have recited Stegall’s testimony fairly and it is all contrary to Wilson’s contentions. Summing .up his testimony, and viewing it objectively, it was in essence that he was assessing the whole area, including his lane, Wilson’s adjacent lane and the standstill position of Wilson’s automobile in that lane, from the time he entered his own lane and began proceeding east until the time Wilson suddenly began backing his automobile from his lane into Stegall’s lane. What we have said is not weighing the evidence but merely reciting the only relevant evidence bearing on the question before us. The only reasonable conclusion from this evidence is that Stegall was keeping a careful lookout ahead and laterally from the time he observed Wilson’s *662 automobile standing in the adjacent lane at a distance of 30 or 35 feet ahead of him until the vehicles collided in Stegall’s lane.
Even though a motorist negligently fails to keep a careful lookout and to see another motorist and to realize that a collision will likely occur if he does not take some precautionary measure, this alone does not warrant a lookout instruction, unless in addition there is substantial evidence that he “had the means and ability to have so acted that a collision would have been avoided” if he had kept such a lookout. Boehm v. St. Louis Public Service Co., Mo.,
Stegall argues that there was no effective precautionary measure he could have taken when Wilson began backing into his lane. In his brief, Wilson agrees that Stegall was: “In the outside lane of traffic with the defendant’s automobile in the inside lane of traffic” and that “plaintiff was about ten to fifteen feet behind the defendant’s automobile” at the time he began backing from his lane into Stegall’s. He does not question Stegall’s speed at that time, 10 to 12 miles per hour. He adopts it. In his testimony he admits he was unaware of Stegall’s presence anywhere on the street until immediately after the collision. He admits he gave no signal of any sort or otherwise indicated that he intended to back from his lane into Stegall’s except the signal the beginning of his backing maneuver was calculated to convey. He admits he had backed 1 to 2 feet into Stegall’s lane at the time of the impact.
Stegall was where he had a right to be. He had a right to assume, as he began proceeding east in his own lane at 10 or 12 miles an hour within 30 or 35 feet behind Wilson, that Wilson would not suddenly and heedlessly back into his lane until Wilson signaled he was going to do so by suddenly beginning to back from his own lane into Stegall’s. 4 Mo.Digest, Automobiles, <®->206. Not until Wilson gave this signal did the vise of lookout law tighten on all that followed. Only from that instant on can we determine if Stegall, whether or not he was looking, and the evidence is that he was, had the ability and the means thereafter to avoid the collision that followed.
As we have observed, there was no evidence concerning the distance in which the motor scooter, then moving 10 to 12 miles an hour, could be stopped and none concerning its maneuverability, except Ste-gall’s testimony that he could not swerve sharply to the right and away from Wilson’s backing automobile without danger of his motor scooter turning over and likely throwing him into Wilson’s path. He testified that when Wilson started backing into his lane it was too late for him to do anything. Wilson puts forward no argument that Stegall could have done anything to avoid the collision after he started backing into Stegall’s lane when Stegall was only 10 to 15 feet behind him.
Giving Wilson the advantage of Stegall’s lower speed, 10 miles per hour, and the benefit of the maximum distance sepa
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rating the two vehicles, 15 feet, Stegall was traveling at the rate of 14.6 feet per second and would have reached Wilson in just an infinitesimal fraction more than one second, i. e., that fraction of a second required for him to move the remaining .4 of one foot. All this assumes that Wilson’s vehicle was stationary. We take judicial notice that the average reaction time of an individual is J^ths of a second. Vietmeier v. Voss, Mo.,
Stegall contends that the trial court erred in excluding a “Vehicular Accident Report” of the Police Department of Kansas City, Missouri, which he offered as evidence. This exhibit was identified by Sergeant Brown, who was the official custodian of the records of the Kansas City Police Department. This officer testified that reports such as this one were “official business records” of the department, made by the investigating police officer immediately following an accident, and then delivered to him as custodian and thereafter kept by him as official custodian under his care and supervision as a part of the permanent records of the department. When this report was offered, counsel for Wilson objected to it in its entirety on the general ground that it was hearsay. The court sustained the objection that it was hearsay and stated as its reason that there was “no chance for cross examination of the party who made it”. Counsel for Stegall then advised the court that the record was being offered as one covered by “[T]he Uniform Business Records as Evidence Law”, Section 490.680, V.A.M.S., and that the very purpose of this Law was to create a statutory exception to the hearsay rule. Counsel’s statement of the purpose of the Law was correct beyond all doubt. Rossomanno v. Laclede Cab Co., Mo.,
Section 490.680, V.A.M.S. provides that “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the reqular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” Counsel for Wilson did not contend in.the trial court that the records of a police department are not within the contemplation of “The Uniform Business Records as Evidence Law”. He does not make that contention in this court. When counsel for Stegall advised the trial court that the ' record was being offered as one covered by that Law, the effect of the objections by counsel for Wilson was that nevertheless the report was objectionable because it was hearsay and contained conclusions. In this court he treats his objections as being governed by this Law and its judicial construction. Consequently, we see no need to consider the question whether the report is governed by this Law and for the purpose of our ruling we will treat it as if it were. Thomas v. Wade, Mo.,
There was no objection that the report failed to meet the requirements of Section 490.680 V.A.M.S. on the ground (1) that it was irrelevant, or (2) that the custodian did not testify to its identity and mode of preparation, or (3) that it was not made in the regular course of business at or near the time of the act, condition or event, or (4) that the trial court should hold the opinion that the sources of information, method and time of preparation were not such as to justify its admission. Nor did the trial court place its ruling on any of the statutory grounds. Its ruling was that the entire report was hearsay because there was “no chance for cross-examination of the party who made it”, and that the last and restricted offer made by counsel for Stegall consisted of couclusions.
As we have stated, counsel for Stegall was quite correct in saying to the court that the very purpose of the Law was to create a statutory exception to the hearsay rule. Therefore, on this record we rule that the exclusion of the report on the ground that it was hearsay was plainly erroneous. Likewise we rule on this record that the exclusion of the portions of the report which counsel for Stegall offered later on the ground that they contained conclusions was just as erroneous. Allen v. St. Louis Public Service Company,
For all of the reasons recited, the judgment is reversed and the cause is remanded for a new trial.