Opinion
No. 21907.
October 5, 1953.
APPEAL FROM THE CIRCUIT COURT, ADAH COUNTY, TOM B. BROWN, J.
Jayne Jayne, Kirksville, for appellant.
Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Pickett, Pickett Andereck, Trenton, for respondents.
This is a damage suit growing out of a collision between defendant's truck and plaintiffs' ambulance.
In count one of the petition both plaintiffs sought a judgment for damages to their ambulance and, in count two, Robert B. Davis sought damages for personal injuries received in the collision. Plaintiffs had a judgment, on the first count, in the amount of $810; and Robert B. Davis had a verdict and judgment for $1,000, for his injuries. Defendant appeals.
The collision occurred at the intersection of Main, a north-south street, and Missouri, an east-west street, in the City of Kirksville, Missouri. Main Street is 30 feet wide at this point, and Missouri is 39 feet wide.
Robert B. Davis (hereafter referred to as plaintiff) testified to the effect that he was operating an ambulance on Main Street, traveling south, at a speed of from 35 to 40 miles per hour; that the ambulance was equipped with a red light in front, which was blinking on and off, and also a siren, which was being continuously sounded, from a point several blocks north of the intersection until the collision occurred; that, as it approached the intersection, the ambulance was traveling south in the west traffic lane; that, when it was from 5 to 12 feet north of the intersection plaintiff first saw defendant's truck, approaching the intersection from the east; that it was "Oh! four, five, six — maybe ten feet" east of the intersection.
On cross-examination he stated that that was not the first time he could have seen defendant's truck; that the view across to Missouri, eastward, was clear. Further cross-examination was as follows:
"* * * Q. Was that the first time you saw the defendant's truck? A. I didn't know it was a truck until after the accident happened. I presume I could say yes to that. I later —
"Q. That was the first time you saw the defendant's truck? A. That is the first time I saw it, to my recollection. * * *
"Q. Now, you testified on direct examination, I believe, that you were able to see the defendant's truck. You now tell this jury that you were within ten feet of the intersection when you first saw it. Now, tell them if that is the first time you could have seen the defendant's truck. * * * A. No, it is not the first time I could have seen it.
"Q. (By Mr. Jayne) Where could you have seen it before that? A. Well, that was a fairly clear angle through the — across to my left.
"Q. And back how far from the intersection? A. I wouldn't know. I didn't measure it.
"Q. Well, what is your best judgment about it? A. I still don't know as to that.
"Q. Well, would it be fifteen feet back from the intersection? A. I don't know.
"Q. Well, would it be that much? A. I presume so.
"Q. Would it be as much as twenty feet? A. It could be.
"Q. Would it be as much as thirty feet? A. I don't know.
"Q. Well, what is your best judgment about it? * * *
"Q. (By Mr. Jayne) Well, do you know that you could see? A. I know I could see, sure.
"Q. All right. Now tell this jury wherefrom. A. I don't know.
"Q. Could it be as much as fifty feet? A. I don't know. * * *
"Q. (By Mr. Jayne) Could it be as much as fifty feet? A. I don't know.
"Q. Could it be a quarter of a block? A. I don't know that.
"Q. And yet you are telling this jury that you could see? A. I did see.
"Q. Where did you see from? A. I told you.
"Q. From between five and ten feet north of the intersection? A. When I first noticed the moving truck —
"Q. You were five to ten feet north of the intersection, is that true? A. When I first noticed the moving truck, yes, sir."
He testified to the effect that, after he saw the truck, plaintiff started through the intersection and the truck was "coming on and coming on"; that he accelerated speed in an effort to pass in front of the truck; that the right tip of the front bumper of the truck caught the left rear fender and side of the ambulance, deflecting it from its course and causing it to strike two other automobiles and, eventually, to strike a brick building with great force.
Walter Gentry, driving a pickup truck, stated that he was approaching the intersection of Main and Missouri from the south; that he first saw the ambulance when it was 11/2 blocks north of the intersection; that a red light was showing on the ambulance, and that a siren was being sounded, as the vehicle, approached the intersection; that he saw the truck, which was being driven at about 15 miles per hour, as it approached the intersection from the east; that it made no stop before entering the intersection; that it continued slowly westward, at about the same speed, until the front end was west of the center line of Main Street, where the collision occurred; that he did not see a trailer truck parked on the east side of Main, north of the intersection, at the time of or immediately before the accident occurred; that none was parked there; that the ambulance was traveling at a speed of from 35 to 40 miles per hour when it entered the intersection and accelerated after it entered.
Mrs. Gentry, wife of the preceding witness, was an employee of the Farmer's Exchange, located on the west side of Main, south of the intersection. There is a large glass window in the building, facing the east. Mrs. Gentry stated that she was in the store, about 30 or 40 feet south of the corner, and heard a siren; that she thought it was a fire truck and crossed the room to the east window to see it; that when she arrived at the window the collision had occurred and the ambulance was "going by."
Mr. Lynch, an employee of the Wabash Railroad, testified that on the date the accident occurred he had been severely injured in a railroad accident; that his left leg was crushed off and his right foot was mangled; that he was picked up by plaintiff's ambulance and was being conveyed to a hospital when the collision occurred; that the siren was sounding continuously from the time the ambulance left the place where witness was injured.
Mr. Conner, a coemployee of Mrs. Gentry, was in the store room with her at the time the collision occurred. He stated that his attention was attracted by the siren; that, then, he heard the crash of the collision.
Mr. Love, a former police officer of Kirksville, stated that he arrived at the scene of the collision within 4 minutes after it occurred; that the truck was parked 10 feet 5 inches west of the northeast corner of the intersection; that defendant told him that he had backed the truck up after the collision occurred; that skid marks ran directly out from the front truck wheels to a point 6 feet 3 inches west thereof; that skid marks ended 16 feet 8 inches west of the east curb line of Missouri, and 1 foot 8 inches beyond the center of the street; that he found debris at the west extremity of the skid marks.
There was also testimony on behalf of plaintiff touching the extent of his injuries and the extent and nature of the damages to the ambulance.
Defendant testified to the effect that he approached Main Street, on the occasion in question, with his Chevrolet truck in second gear; that he brought the truck to a stop, or virtually so, before entering Main Street; that he shifted to low and drove forward at a speed of about 5 miles per hour; that, before entering the intersection, he looked to the south and to the north; that he could not see north on Main because his view was blocked by a trailer truck parked on the east side of Main, immediately north of the intersection; that he shifted to low and "eased" out into the intersection, at 5 miles per hour, until he could see to the north; that the truck was not equipped with radio; that the windshield was clean and the weather clear; that the north window of the cab was down about 2 inches and the south window was completely down; that he did not see the ambulance, or hear a siren before he entered the intersection; that nothing prevented his seeing the ambulance (prior to that time) except a trailer truck, parked north of the intersection, on the east side of Main; that he first saw the ambulance when the front of the truck was 10 feet east of the center line of Main; that the ambulance was traveling from 40 to 50 miles per hour; that he first heard the siren at that instant; that there was no red light showing; that the ambulance was 40 to 50 feet north of the intersection; that he instantly applied the brake and the truck stopped, after skidding 30 inches, and before the collision occurred; that the truck was equipped with booster air brakes and could be, and was, stopped 30 inches after application of the brake, under conditions then existing, not counting reaction time; that he never sounded his horn prior to the collision. In a deposition defendant stated that he entered the intersection at 5 miles per hour and drove directly west, leaving the inference that he did not swerve, prior to stopping, when he saw the ambulance.
Bunny Simmonds stated that he was riding in defendant's truck when the collision occurred. His testimony was substantially to the same effect as that of defendant.
Defendant stated that he stopped before entering the intersection, and then drove at a speed of 5 miles per hour; that he continued driving directly forward at that speed, until an instant before the collision.
Defendant and his passenger, partners in a farming venture which they were then engaged in carrying on, were the only witnesses who claimed to have seen a trailer parked near the intersection. They said it prevented them from seeing north of the intersection on Main Street until the truck reached a point 10 feet west of the east curb line of Main. Mr. Gentry, who saw and observed the collision, stated that there was no trailer parked there. No other witness saw a trailer.
It was shown that the City of Kirksville had in effect an "emergency vehicle" ordinance but that it was not applicable in this case. It was also in evidence that the legal speed limit was 15 miles per hour.
Plaintiff alleged both primary and humanitarian negligence but the case was submitted on the humanitarian theory alone, failure to stop, slacken speed, or swerve. Defendant contends that there is not sufficient evidence to justify submission on each, or any, of said grounds.
Defendant says: "We recognize the rule that the court must consider the evidence in the light most favorable to plaintiff and that plaintiff is entitled to all inferences that can reasonably be drawn from the evidence presented which are favorable to their case. It is also well settled that the evidence must be sufficient so that the jury will not have to resort to surmise, speculation and guesswork in order to reach its verdict." The above is a fair statement of the law.
For plaintiff to recover, the following facts must have been shown:
1. Plaintiff must have been in a position of imminent peril;
2. Defendant knew, or should have known thereof;
3. After receiving said notice, defendant must have had the ability to have avoided the impending injury to plaintiff without injury to himself, his truck, or others;
4. He must have failed to exercise due care to avert said injury;
5. By reason of defendant's negligence in failing to exercise said care plaintiff must have been injured.
Gurwell v. Jefferson City Lines, Inc., 239 Mo.App. 305, 192 S.W.2d 683, 687; Banks v. Morris Company, 302 Mo. 254, 267, 257 S.W. 482.
In a humanitarian case every element thereof must be proved, or it will fail. If the existence of anyone of the elements mentioned is based on conjecture or speculation, no case is made. Gurwell v. Jefferson City Lines, Inc., supra.
The question here presented on the record, and by defendant, is: Was there substantial evidence from which the jury, without speculation or conjecture, could have found that defendant could have avoided the collision after he knew, or should have known, that plaintiff was in a position of imminent peril.
Plaintiff stated that he was, at the most, 12 feet north of the intersection when he first saw defendant approaching from the east, at which time defendant was from 4 to 10 feet east of the east curb line of Main Street. Plaintiff stated that he could have seen the truck sooner, but there is no evidence as to how much sooner, or as to where either vehicle would have been at that time. It is purely speculative.
Certainly plaintiff was in a position of imminent peril when the ambulance was 12 feet north of the intersection, traveling at from 35 to 40 miles per hour. Defendant was required to act promptly to avoid the impending collision, if he could have done so. Could defendant have taken effective action at that time? The answer depends upon the location and speed of defendant's truck at that instant.
The only evidence of location, offered by plaintiff, was to the effect that the truck was from 4 to 10 feet east of the intersection when the ambulance was 12 feet north of the intersection. The ambulance, therefore, traveled about 31 feet before the collision occurred. The lowest estimate of the speed of the ambulance was 35 miles per hour and the highest estimate of the speed of the truck was 15 miles per hour.
The ambulance, in order to reach the point of collision, traveled 21/3 times as fast as the truck traveled. If the truck was 10 feet east of the east curb line of Main Street when the ambulance was 12 feet north of the north curb line of Missouri, the truck must have traveled a distance of 26 feet 8 inches before the collision occurred. It is absurd to say that a vehicle traveling at a speed of 15 miles per hour will travel almost 27 feet during the same time that another vehicle, going 21/3 times as fast, travels 31 feet. If the evidence regarding the location and speed of the respective vehicles is correct, the accident didn't happen.
We realize that, ordinarily, evidence as to speed and distances is not conclusive. However, in this case, there is no other evidence as to the location of the truck and ambulance, or as to speeds and distances, that aids plaintiff's case. See Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282, 284. The testimony of defendant was to the effect that he could not see plaintiff, and did not see him, until defendant's truck was 10 feet west of the east curb line of Main. The evidence is clear that the front wheels of the truck were stopped 1 foot and 8 inches west of the center line of Main. Defendant said that he could, with his brakes, lock the wheels immediately; that he did so; and that, not counting reaction time, the truck could have been, and was stopped within 30 inches. The skid marks were about 30 inches in length. If the truck was where defendant said it was when he saw it, then it cannot be said that he was negligent in failing to act as soon as he reasonably could have acted. In other words, plaintiff's case is not aided by defendant's testimony. Defendant's testimony is also in conflict with plaintiff's theory of his case.
However, plaintiff says that the jury could have found, from the evidence, that defendant could have seen the ambulance approaching the intersection before the ambulance reached a point from 5 to 12 feet north thereof. Probably that is true; but there is no evidence that he could have seen the ambulance further north than 15 feet, which is of no benefit to plaintiff's case. It is purely speculative as to how far north defendant might have seen. And, if he had seen the ambulance at some point further north, say 75 to 100 feet, we would have to speculate on how far east of the intersection defendant's truck would have been at that time, at what speed it was then traveling, and whether or not he should have known that plaintiff would not slow or stop before entering the intersection. It must be remembered, in this connection, that the speed limit at the place where the collision occurred was 15 miles per hour, which plaintiff was then exceeding. There is no evidence as to the stopping distance of the ambulance. It would have been the wildest kind of speculation for the jury to have based a verdict on the theory that defendant saw plaintiff, or should have seen him, when the ambulance was further north on Main Street for, according to plaintiff's testimony, defendant's truck must have been further east than 10 feet at a time when the ambulance was at some unnamed location north of the intersection. A verdict in a humanitarian case cannot rest on such speculation.
It does not appear that plaintiff could, if given another trial, offer evidence that would make a case. This is true because plaintiff said that he never saw defendant until the ambulance was from 5 to 12 feet north of the intersection, at which time defendant was from 4 to 10 feet east of the intersection. The evidence was rather fully developed on behalf of plaintiff. Speeds, location and distances were well established. It is difficult to believe that in another trial a different situation could or would be developed, such as would make a submissible case.
The judgment should be reversed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed.
All concur.