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Zempel v. Slater12/6/2005
careful lookout, the plaintiff must establish that the defendant saw or could have seen the plaintiff in time to have avoided the collision. Id. at 427. The defendant is "held to have seen what looking would reveal." Id. Normally, the plaintiff must establish the time when and the distance at which the potential danger of collision triggered the defendant's specific duty to take effective precautionary action. Morgan v. Toomey, 719 S.W.2d 129, 133 (Mo. App. E.D. 1986). In certain fact situations, however, our courts have found it unnecessary to prove time and distance. See, e.g., Hudson,34 S.W.2d at 428-29.
In Hudson,the plaintiffs' car was in the flow of traffic when they saw the defendant's car stopped at a stop sign at an intersection 20 feet away. Id. at 421. The plaintiffs did not have a stop sign. Id. Once into intersection, the plaintiffs saw that the defendant's car was just a few feet in front of their car, and the cars collided. Id. at 422. The defendant never saw the plaintiffs' car, although his view from the stop sign was unobstructed for 1,125 feet in the direction from which the plaintiffs were traveling. Id. The case was submitted on alternative theories that the defendant had failed to yield the right-of-way or failed to keep a careful lookout. Id. The court found that the effective precautionary measure would have been for the defendant to have remained stopped and to have refrained from pulling out into the intersection in front of the plaintiffs' car. Id. at 428-29. There was sufficient evidence that the defendant could have seen the plaintiffs' car in time to avoid the collision and that the defendant created the danger of a collision by failing to see the plaintiffs' car before pulling out in front of it. Id. at 429. The plaintiffs, therefore, made a submissible case for failure to keep a careful lookout. Id. Moreover, the plaintiffs' distance from the stop sign and their speed, the defendant's unobstructed view and the fact of the collision was sufficient evidence from which the jury could decide whether the plaintiffs' car presented an immediate hazard and, therefore, the plaintiffs made a submissible case for failure to yield the right-of-way. Id.
Similarly, here, the evidence demonstrates that the effective precautionary measure would have been for Slater to have remained stopped instead of creating a hazard by pulling out into the intersection. There was substantial evidence from the photographs and Slater's own testimony that his view down Route B in the direction from which Zempel was traveling was unobstructed. Slater's argument on appeal relies on the "contrary" evidence that his view was impaired by sun and traffic on the day of the accident. To the extent that evidence raises an inference unfavorable to the plaintiffs' case, we disregard it on appeal. See id. at 427.Moreover, regardless of what else affected his view, in describing the distance between cars in the flow of that traffic, Slater implied that he could see at least 300 feet down Route B: . . . Now [the westbound vehicles] were not in a parade necessarily, but that traffic was generally moving towards the sun. There was other traffic coming from the west to the east. It was automobile traffic. You would see 1, 2 or 300 feet back you would see another one, so the traffic was flowing from the west to the east and also from the east to the west as I remained stopped there.
Furthermore, Slater agreed that he could see "some distance" down, and stated that he had a "sufficient view" of, the eastbound lane of Route B.
There was also sufficient evidence from which the jury could determine how far away the motorcycle was from the intersection when Slater entered it: there was evidence t
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