Bates v. Hensley

• Decision Date: 17 October 1969
• Docket Number: No. 19350.,19350.
• Citation: 414 F.2d 1006
• Parties: Ross L. BATES, Appellant, v. Chester Ray HENSLEY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

414 F.2d 1006 (1969)

Ross L. BATES, Appellant, v. Chester Ray HENSLEY, Appellee.

No. 19350.

United States Court of Appeals Eighth Circuit.

September 3, 1969.

Rehearing Denied October 17, 1969.

Dayton W. Countryman, Nevada, Iowa, for appellant; Marvin Motley, Branson, Mo., was on the brief with Mr. Countryman.

Daniel T. Rabbitt, Jr., of Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, Mo., for appellee; F. X. Cleary, St. Louis, Mo., was on the brief with Mr. Rabbitt.

Before GIBSON, LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This diversity action, arising out of an automobile accident, was instituted in the United States District Court for the Western District of Missouri. The plaintiff's (Hensley's) personal injury claim against the defendant (Bates) was settled before the trial. The defendant's counterclaim was tried before a jury and a verdict of $9,000 was returned. Hensley did not appear as a witness at trial.

The District Court granted Hensley's motion for judgment notwithstanding the verdict on the grounds that Bates had failed to make a submissible case and his own evidence showed he was contributorily negligent.¹ The trial court further provided that in the event the order was reversed on appeal, Hensley should have a new trial.²

Bates contends on appeal that the trial court erred. He argues that the evidence demonstrates that Hensley was negligent in driving his taxicab at an excessive rate of speed and in failing to keep a careful lookout. He also contends that he was not guilty of contributory negligence.

We are required to view the evidence in the light most favorable to Bates and to draw all legitimate inferences in his favor.³

"Only where there is a complete absence of probative facts to support the conclusion reached does reversible error appear. But where there is an evidentiary basis for the jury\'s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. * * *

"* * * Where the defendant assigns as error the court\'s refusal to direct a verdict for defendant, Supreme Court in considering assignment would state the evidence favorable to plaintiff and disregard defendant\'s evidence, unless it added to plaintiff\'s case. * * *" (Citations omitted.)⁴

In our opinion, there is at least one set of facts which could be reasonably inferred by the jury from the evidence presented which would allow them to find: (1) that Hensley was negligent in driving at an excessive speed; (2) that Hensley was negligent in failing to keep a careful lookout; and (3) that Bates was not contributorily negligent.

The accident occurred in the west-bound traffic lane of Highway 76 within the city limits of Branson, Missouri, at approximately 9:25 A.M. on August 16, 1965. It was raining heavily at the time of the accident.

The point of impact was some five and one-half feet north of the centerline on the downward slope of a hill. There was a clear view from the point of impact to the crest. While the evidence was contradictory, that most favorable to Bates indicated that the point of impact was 255 feet from the crest.

Bates was parked on the shoulder of the highway facing west and parallel to the westbound traffic lane prior to attempting to make a left turn which would bring him across the traffic lanes perpendicularly.

Prior to commencing the turn, Bates checked for cars approaching from the rear (east) and signalled his turn. He stated that there were no cars approaching when he started to move forward. He proceeded forward six or eight feet and looked east again. He did not see any cars approaching. He then turned to look west and, about that time, his car was struck by Hensley's westbound taxicab.

Bates argues that the jury could properly infer from the physical results of the accident that the taxicab was moving at an excessive rate of speed. He suggests that it would not be improper for the jury to find that the plaintiff (Hensley) was traveling at a speed of nearly sixty miles an hour.

We have found no Missouri case permitting a jury to determine from the physical results of the accident that a car was proceeding at a particular rate of speed. Juries, however, have been permitted to find from the location of the cars after impact, the sound of the crash and the damage resulting from the collision that a car was traveling greatly in excess of a given speed. See, Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43 (1932); Norris v. Winkler, 402 S.W. 2d 24 (Mo.App.1966).

Here, Bates' car ended up eighty-five feet from the point of impact and flipped over three times. It was nearly demolished and Hensley's car was severely damaged. The force of the collision rendered Bates unconscious and he received severe injuries. We think that the jury could find from these facts that Hensley was traveling at a speed greatly in excess of thirty miles an hour, the posted speed limit, and that he was negligent.

We think that the jury could also find that Hensley failed to keep a careful lookout.

Bates stated that his car never reached a speed greater than seven or eight miles an hour. At an average speed of four miles an hour, Bates' car would travel nearly six feet a second or eighteen feet in three seconds.

The highway was twenty-six feet wide with nine foot shoulders. If Bates were parked on the extreme right edge of the shoulder, then the right front end of the car would have to travel more than twenty-two feet to reach the centerline.

A witness testified that when the Bates' car began to move, it looked like it was going to make a U-turn. The jury could find that Bates' path of travel was a sharp turn to the left.

A witness testified that the elapsed time between when Bates' car began to move and the collision was just long enough for the witness to turn, go up on her porch and take off her coat. Bates' testimony indicated that the elapsed time was very brief.

We think that it would not be unreasonable for the jury to find from these facts, i. e., the time and distance, that it took approximately three to four seconds for the Bates' car to move from the stopped position to the impact position.⁵

The jury could believe Bates and find that Hensley had not come over the crest of the hill when Bates first looked back, signalled, and began to make his left turn.

The jury could reasonably find, as previously stated, that the taxicab was moving at nearly sixty miles an hour. They could also find that the point of impact was 255 feet from the crest. At sixty miles an hour, a car will travel 264 feet in three seconds. Thus, if Hensley were going sixty miles per hour, his car would be invisible to Bates when Bates first looked back and yet it could still arrive at the impact point in less than three seconds.

The jury could find that if Hensley had been keeping a careful lookout, he could have seen Bates' car as soon as he crested the hill. Even at sixty miles per hour, he would have had Bates' car under observation for three seconds.

The accident took place in the westbound lane near the center of the lane — the lane Hensley was properly moving in. The jury could reason from the fact that as apparently Hensley took no evasive action, i. e., he did not move to the right shoulder and pass behind or to the eastbound lane and pass in front, he did not see the Bates' car or was traveling at a speed so great as to be unable to react in time to avoid the accident, or both. We think that the facts are sufficient to support a finding by the jury that the defendant failed to keep a proper lookout.

Hensley contends that even if the evidence was sufficient to establish that he was driving at an excessive rate of speed, there was insufficient evidence to establish that the excessive rate of speed was the proximate cause of the accident. Hecker v. Schwartz, 426 S.W.2d 22 (Mo. 1968); Osborn v. McBride, 400 S.W.2d 185 (Mo.1966). We disagree.

The jury could find that driving at a rate of speed of sixty miles an hour and failing to keep a careful lookout combined to form the proximate cause of the accident. At sixty miles an hour, Hensley, would have had three seconds to react instead of the nearly six seconds if he had been traveling at thirty miles per hour. Hensley admitted, in an interrogatory read into the record as a declaration against interest, that he saw the defendant's car prior to the collision. The evidence is sufficient to find that Hensley took no steps to avoid the accident. Thus, the jury could find that the plaintiff's speed created conditions under which it became impossible for him to react in sufficient time to avoid the collision.

We believe that the trial court also erred in determining that Bates was guilty of contributory negligence as a matter of law in failing to keep a careful lookout.

Hensley had the burden of proving that Bates was guilty of contributory negligence. In Hardy v. St. Louis-San Francisco Railway Company, 406 S.W.2d 653, 658 (Mo.1968), the court stated:

"* * * `The burden of proving plaintiff\'s contributory negligence was on the defendant.\' And as against the charge of failure to look or listen or to have control of one\'s vehicle it was said, `Before the court can declare that contributory negligence is shown as a matter of law, such negligence must clearly appear from admitted or conclusively proved facts. If reasonable men may honestly differ with respect to the inferences to be drawn from the facts, then the question whether the driver exercised the care required for his own safety is for the jury.\'" (Quoted from Zumault v. Wabash Railroad Company, 302 S.W.2d 861, 862-863 (Mo.1957).)

Furthermore, the question of whether a proper lookout has been maintained is usually a jury question. Slaughter v. Myers, 335 S.W.2d 50 (Mo. 1960); Hammon v. Gentlemann, 423 S.W.2d 5 (Mo.App.1967).

Apparently, the trial court based its conclusion on the premise that one is held negligent if he failed to see that which could be seen in...