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07/26/83 BARBARA MCCOY v. HERSHEY CHOCOLATE COMPANY

July 26, 1983

BARBARA MCCOY, APPELLANT
v.
HERSHEY CHOCOLATE COMPANY AND THOMAS DALE LOEWEN, RESPONDENTS



From the Circuit Court of St. Louis County; Civil Appeal; Judge Margaret M. Nolan.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Plaintiff appeals after a jury verdict and judgment in favor of defendant Thomas Loewen in an automobile accident suit. We reverse.

The automobile accident in question occurred in the intersection of Sunset Office Drive and an unnamed street, when the road was wet and it was lightly drizzling. Although the evidence is sketchy, from photographs and testimony we are able to determine that Sunset Office Drive originates north of the intersection at the K-L Building. The street is divided by a wide grassy median; the southbound lane is at least fifty feet wide with parking on the west side. We are presented with no measurements as to how far south of the originating point of Sunset Office Drive the unnamed street intersects. However, one of the photographs admitted into evidence was taken 120 feet north of the intersection; thus, we know Sunset Office Drive extends at least this far. Moreover, the evidence reveals that the unnamed street is fifty feet wide.

Plaintiff's evidence was that she drove west from the parking lot at the eastern edge of Sunset Office Drive and turned left into the southbound lane of Sunset Office Drive. Plaintiff first saw defendant's vehicle approach from her right when she was approximately 20 feet from the intersection, travelling ten to twenty miles per hour. She next saw defendant's automobile as her car was halfway into the intersection. At this point, she alleges she applied her brakes, swerved to the left but was unable to avoid impact. Defendant struck plaintiff in the southeast section of the intersection, with the front of his vehicle hitting the right rear of her car.

According to defendant, he was travelling 10-15 miles per hour on the unnamed street as he approached the intersection. Plaintiff's automobile was, he estimated, travelling 30 miles per hour. Defendant first saw plaintiff immediately before impact. He applied his brakes, but was unsure how far he travelled from the time he first saw plaintiff until the time of impact. He further claims that plaintiff took no evasive action whatsoever.

The unnamed street has two eastbound lanes, one of which is used for parking. Testimony clearly established that vehicles were in the parking lane of Sunset Office Drive at the time of the accident. However, the number of automobiles is disputed, with plaintiff contending that there were two vehicles and the defendant claiming that they lined the entire block.

Based on this evidence, the jury returned a verdict in favor of defendant Loewen.

On appeal, plaintiff argues that submitting Instruction No. 8 on contributory negligence was error. This instruction submitted multiple negligent acts on the part of the plaintiff, including excess speed, failing to stop, swerve, slacken speed, slacken speed and swerve, or keep a careful lookout. Plaintiff argues that each of these disjunctive acts is not supported by the evidence.

It is well settled that each element of an instruction phrased in the disjunctive must be supported by substantial evidence. Saupe v. Kertz, 523 S.W.2d 826, 830 (Mo.banc 1975). Therefore, on submission of negligent failure to avoid a collision, the evidence must show that plaintiff possessed the means and ability to avoid the accident by each and every act described. Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App. 1978). The evidence must establish sufficient time and distance, considering the movements and speeds of vehicles, to enable plaintiff to take effective action in avoidance. Saupe v. Kertz, 523 S.W.2d at 830. The theory of failure to keep a careful lookout, therefore, becomes submissible when the plaintiff could have seen defendant's vehicle and taken effective action. Hill v. Barton, 579 S.W.2d 121, 128 (Mo.App. 1979).

We have concluded defendant failed to establish substantial evidence supporting the submission of the instruction. Defendant's unambiguous testimony was that the entire right side of Sunset Office Drive, from the beginning to the intersection, was lined with automobiles. Based on this testimony, there is absolutely no evidence that plaintiff could have seen defendant in time to avoid the collision; no evidence that she could stop, swerve or slacken her speed and avoid the accident after the likelihood of impact was apparent.

The defendant would have this court rely on plaintiff's evidence that only two vehicles were parked on the street. *fn1 However, we find defendant's theory is at war with his own testimony that vehicles lined Sunset Office Drive. Indeed, defendant's testimony as to the location of parked vehicles constitutes a judicial admission of a material fact. Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo. 1972). The law in this matter is clear:

f a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact within his own knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as ...


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