Plaintiff instituted an action for wrongful death (§ 537.080 et seq., RSMo 1969, V.A.M.S.) in the Circuit Court of Laclede County, Missouri, to recover damages for the death of her minor son Kevin Walters. Kevin, who was ten years old, sustained fatal injuries when struck by a motor vehicle driven by defendant. The tragic accident occurred on Februаry 8, 1973, on City Route 66 in Lebanon, Missouri.
Plaintiff was divorced from Kevin’s natural father and brought the wrongful death action in her name alone, for the use and benefit of both herself and Kevin’s natural father, since the latter refused to join in the action.
The wrongful death action was tried in Morgan County, Missouri, on changе of venue and submitted to the jury on two disjunctive grounds of primary negligence— (1) defendant failed to keep a careful lookout, or (2) defendant knew or by using the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to hаve stopped, or slackened his speed, or slackened his speed and sounded a warning, but defendant failed to do so.
The jury found the issues in favor of defendant, and judgment was entered in favor of the defendant in accordance with the jury’s verdict. Plaintiff timely appealed the adverse judgment, claiming the trial court erred (1) in admitting into evidence a mutual agreement effected between plaintiff and Kevin’s father, approved by the appropriate court having jurisdiction, which modified the original divorce decree affecting care, custody and control of Kevin, and (2) in permitting plaintiff to be cross-examined on, and Kevin’s father on direct examination to testify to, the following matters: (a) identity of the person who was supporting and had actual custody of Kevin at the time of his death, (b) identity of the person who paid Kevin’s medical and burial expenses, (c) refusal of Kevin’s father to join in the wrongful death action, and (d) facts surrounding the mutual agreement effecting modification of the custody provisions contained in the original divorce decree.
The multiple instances of prejudicial error claimed by plaintiff are never reached if, as contended by defendant, plaintiff failed to make a submissible case under either disjunctive submission of primary negligence heretofore iterated.
Resolvement of whether plaintiff made a
prima facie
case under either disjunctive submission of primary negligence relied upon is properly weighted in her favor. The evidence must be viewed in the light most favorable to plaintiff’s theories of submission and she is to be accorded all reasonable inferences springing from the evidence when so viewed which aid her theories of submission.
Hecker v. Schwartz,
Turning now to the evidence, and viewing it as just mentioned, the facts leading up to Kevin’s tragic and untimely demise unfold as follows. Defendant, the only eyewitnеss to the accident culminating in Kevin’s death, was called as a witness by plaintiff. He was seventy-nine years of age and a resident of Lebanon, Missouri. On the evening of February 8, 1973, he was returning to his home in Lebanon from a business trip to Springfield, Missouri. The weather was fair, clear and dry, and he was driving a 1971 Dodge Pоlara which was in good mechanical condition in all respects. He was alone at the time and arrived back in Lebanon at approximately six p. m. It was dusk and beginning to get dark when he arrived back in Lebanon and he therefore had the car’s headlights on, as did other motorists at the timе. Upon reaching *851 Lebanon he proceeded north on City Route 66, a two-lane blacktop road, approximately twenty feet wide, with six foot shoulders on each side, at a speed of approximately thirty miles per hour (within the posted speed limit).
Prior to the accident Kеvin had been visiting in the home of Tracey Bell which was located on the east side of City Route 66. Kevin’s home was on Howard Street and west of City Route 66. While Kevin was visiting in the Bell home it began to get dark and Kevin left, exiting the Bell home by way of the back door. Tracey Bell did not see the boy after he lеft his home until after the accident occurred.
The Bell home, which faced City Route 66, had two driveways, variously described as the first and second driveway, and the south and north driveway. The distance between the center of the south driveway and the center of the north driveway was sixty feet. The distance between the south line of the Bell property and the center of the north driveway was one hundred and fifty feet. There were a large number of trees (several of which were Cedar) located in and which “shaded” parts of the front lawn of the Bell home. However, their location with rеspect to and their effect on the area where the fatal accident occurred is far from definitive.
City Route 66 where it ran in front of the Bell property, and for some distance north and south thereof, was straight and level. As defendant proceeded north on City Route 66 in the area of the Bell home, with his headlights on, he could see ahead for a distance of approximately 300 to 350 feet, and as he did so he met an oncoming vehicle which momentarily occupied his attention.
Defendant had travelled the particular route in question on prior occasions and was familiar with the fact that the Bell driveways joined City Route 66 on the east side. Evidence was also introduced that children frequently had occasion to be in the area.
According to defendant, Kevin “jumped in front” of his car at a point near the south side of the north driveway which led tо the Bell home. Defendant was looking straight ahead and did not see Kevin until the boy “jumped in front” of his car “from the shoulder of the driveway”. Defendant’s car struck Kevin at some point in the area adjacent to the north driveway and near the center or east portion of the northbound lane of City Route 66. The evidence was cast in such generalities that it defies fixing the point of impact with any greater degree of preciseness. Defendant did not sound his horn, slacken his speed or apply his brakes before his automobile struck Kevin.
After striking Kevin, it did not take defendant “very long” to bring his cаr to a stop. When his car was brought to a stop, it was headed north. Defendant then got out of his car and observed Kevin “lying crossways in the left lane” some six or eight feet from his car. The record does not otherwise indicate where Kevin was lying with respect to defendant’s car.
In order to mаke a submissible case against defendant for failure to keep a careful lookout, substantial evidence had to be presented to the jury from which it could reasonably find that defendant, in the exercise of the highest degree of care, could and should have seen Kevin in time therеafter to have taken effective precautionary action.
Zalle v. Underwood,
Assuming, arguendo, that the jury could infer from the evidence that defendant could and should have seen Kevin before he did, more was required, as just mentioned, for plaintiff to make a submissi-ble case predicated on defendant’s failure to keep a careful lookout. When defendant could and should have seen Kevin, Kevin’s location and conduct must have been such that defendant, in the exercise of the highest degrеe of care, knew or should have known that there was a likelihood of injury and, at that moment, the relative positions of defendant’s car and Kevin must have been such that defendant had the time, distance, means and ability to take effective precautionary action.
Ochs v. Wilson,
What has been said regarding the legal frailty of plaintiff’s submission that defendant was negligent in failing to keep a careful lookout likewise holds true and is germаne regarding plaintiff’s alternate submission that defendant “knew or by using the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, or slackened his speed, or slack
*853
ened his speed and sounded а warning, but defendant failed to do so.” Assuming, ar-guendo, that the jury could have inferred that at some point prior to impact defendant could and should have known of the reasonable likelihood of collision, such alone was insufficient to carry plaintiff’s alternate submission to the jury. By the re-quiremеntal nature of the language of the alternate submission, evidence was additionally required from which the jury could find or reasonably infer that actual or constructive knowledge of the likelihood of collision was acquired by defendant in time to have thereafter effectively taken оne of the suggested precautionary measures. As stated before, there was no evidence as to the respective distances of defendant’s car and Kevin from the point of impact when Kevin could or should have been seen by defendant in a position fraught with the likelihood оf injury. Consequently, there was an evidentiary void regarding whether defendant knew or could have known of the reasonable likelihood of collision in time to have thereafter effectively taken one of the suggested precautionary measures. Since evidence was lacking to support all the essential elements of plaintiff’s alternate submission, she likewise failed to make a sub-missible case on her alternate submission.
Bolhofner v. Jones, supra;
and
Cook v. Cox,
Plaintiff, apparently anticipating defendant’s argument that she failed to make a prima facie case as to either disjunctive submission, cited two cases,
De Lay v. Ward,
Since plaintiff failed to make a submissi-ble case as to either disjunctive theory, her claims of trial error (infra) are unavailing, notwithstanding the fact that they might be found to be reversible error if fully analyzed and reviewed, because, according to the evidence, defendant was entitled to a judgment in his favor as a matter of law. Tragedy sometimes begets tragedy. Be that as it may, this court lacks the power to make an infirm case whole.
Judgment affirmed.
All concur.