Claridge v. Anzolone ( 1949 )

I cannot concur in a final complete reversal of this case but would reverse and remand on the ground that plaintiff might make a humanitarian negligence case on failure to slacken speed or swerve. I fully agree that plaintiff has no such case on failure to stop because he did not show ability to stop after his imminent peril arose.

I also fully agree with what is said in the opinion about the narrowness of plaintiff's zone of imminent peril under the circumstances of this case and the ruling as to when his peril arose. However, as the opinion states, plaintiff had evidence that defendant's truck never slackened speed but continued at the same speed from the time plaintiff first saw it up to the point of collision. The evidence was at least in conflict as to whether the truck driver ever applied his brakes before the collision since the policemen did not observe any tire marks on the pavement. Moreover, the right front fender of the truck struck the right rear corner of the side car of the motorcycle. Thus the plaintiff almost escaped and the slightest slackening or any swerving might have permitted him to escape. This would seem to bring this case within the ruling of such cases as Gann v. Chicago, R.I. P.R. Co., 319 Mo. 214, 6 S.W.2d 39; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Tharp v. Thompson (Mo. App.) 139 S.W.2d 1116; and Smith v. Thompson,346 Mo. 502, 142 S.W.2d 70. In all of these cases it was held that a jury case on slackening was made because "there was a situation where the plaintiff's car barely failed to clear, so that only the slightest additional time would have been necessary for its escape." [Meese v. Thompson, 344 Mo. 777,129 S.W.2d 847.] I think that the jury might so find from the plaintiff's evidence in this case.