Allan v. Read
| Decision Date | 07 October 1968 |
| Docket Number | No. 24876,24876 |
| Citation | 433 S.W.2d 58 |
| Parties | Stephen R. ALLAN, a Minor by Next Friend and Mother Lillian R. Allan, Plaintiff-Respondent, v. Jack Victor READ, Defendant, and John Bradley Davis, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Harold T. VanDyke, Jerry R. Linscott, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant, John Bradley Davis.
Paul H. Niewald, Gordon, Adams, Niewald & Risjord, Kansas City, for respondent, Stephen R. Allan.
Plaintiff was injured in a two car head-on collision. he sued both drivers, namely, defendant Davis, in whose car he was riding as a passenger, and the defendant Read, driver of the other car. Trial to a jury resulted in a verdict and judgment for $8,500.00 in favor of plaintiff and against both defendants. Only defendant Davis has appealed.
The case was submitted to the jury, as against defendant Davis, on the theory that the two vehicles approached each other on a collision course, that Davis knew or by using the highest degree of care could have known there was reasonable likelihood of collision in time to have swerved and avoided the collision, but that he negligently failed to do so. This issue was submitted by Instruction No. 5 in form essentially as prescribed by MAI 17.04. As appellant. Davis now contends there was insufficient evidence to support that submission and that the trial court consequently erred in denying his motion for a directed verdict at the close of all the evidence. In resolving these questions it is our duty to view the evidence in the light most favorable to plaintiff and give plaintiff the benefit of all favorable inferences to be drawn from the evidence. Accordingly, we proceed to state the facts we consider pertinent to our decision.
The collision occurred shortly after midnight, June 2nd, 1965, on U.S. Highway 69, approximately eleven miles south of Cameron. The Davis car approached the point of impact traveling from the north, headed south,--defendant Read's car from the south, headed north. At the time of the collision plaintiff was asleep as a passenger in the Davis car and remembers nothing about the occurrence. Highway Patrolman LeRoy Soperla, called to investigate the accident, arrived at the scene soon after it happened. He testified: In the vicinity of the accident, U.S. Highway 69 has two traffic lanes--one for northbound travel and one for southbound. The highway is 20 feet wide and has shoulders on each side, described as fairly wide, level normal shoulders with a small amount of grass on them. The east shoulder is eight feet wide--the west shoulder nine feet. On the night in question the weather was cloudy, but not raining, and the pavement and shoulders were dry. Upon the officer's arrival he found the Davis car (a '62 Plymouth) positioned 'more or less sideways' in the southbound lane with the nose pointed toward the center of the highway. The Read car (a '50 Rambler station wagon) was facing north 'astraddle' of the center line, sitting approximately in the middle of the highway, with its left wheels in the southbound lane. The officer found debris (mostly broken glass, chrome, dust and dirt) extending in heaviest concentration from the center line into the west or southbound lane for approximately three feet. From the point where he found the vehicles and debris, the roadway extends uphill to the north for 360 feet to a crest. 'Looking to the south' from the same point the roadway extends approximately 200 feet to the bottom of the hill where it 'starts an incline back up' for a considerable distance estimated at six or seven hundred feet. The highway is straight and not curved as it extends both north and south from the place mentioned. There were skidmarks behind the Davis car. The left wheels left marks 67 feet long but the right wheel marks were only 34 feet long. The left front wheel mark started one foot west of the highway center (as the Davis car traveled south) extended to and ended at the center line, thereby indicating that the left front brake took effect first, causing the car to veer slightly to the left or toward the center of the highway. 'From where the skidmarks started with the left wheel they went from possibly one foot over to the centerline.' The overhang of the body of the Davis car extended approximately six to eight inches beyond the wheels. The wheelbase of the Davis automobile was approximately 10 feet.
Defendant Read testified that prior to and at the time of the collision he was traveling between 50 and 55 miles per hour. He said the last he could recall before the accident was that he was on the right side of the highway, but he was unable to state what position the cars were in with reference to the center line on the highway at the time they collided. It was his best judgment that the left front of his car came into collision with the left half of the Davis automobile and that the width of an automobile would be about six feet. He did not recall seeing the Davis car when it came over the hill from the north some 600 feet distant and he claims that the first and only time he was aware of the Davis car was when he saw its headlights when it was approximately three car lengths in front of him. He did not reduce his speed before the collision occurred, he couldn't remember whether he applied his brakes, but he stated that he jerked his wheel to the right when he saw the Davis car's headlights in front of him. Whether this had any effect in changing the vehicle's direction he was unable to say. He admits there is a period of time he can't account for just before he saw the headlights on the Davis car.
Appellant Davis testified to facts in substance as follows: He had been traveling south on Highway 69 at a speed of 60 miles per hour prior to the accident and was traveling at the same speed when he came over the crest of the hill on which the accident occurred. When he crested the hill and his lights came down he saw the headlights of the Read car in front of him. This was the first time he saw the other car and at that time 'those headlights' were in his lane of traffic. That was when he 'came off of the little crest' and his headlights came down. He admitted that he didn't need his own headlights to see the headlights of the 'other car' and that 'you can see headlights whether your headlights are even on as they are approaching from the opposite direction.' Appellant's testimony is contradictory as to when he applied his brakes. At the trial he testified that when he saw Read's headlights in front of him 'I hit the brakes and that is all I remeber.' In depositional answer read to the jury he said he didn't know whether he drove 'down the road some distance' before he applied his brakes. Davis admitted that he never swerved his car 'to the right or to the left.'
Mrs. Lorine Morrow, called as a witness by appellant, testified that she recalled traveling southward on Highway 69 'for quite a while' behind the Davis automobile, at a speed 'around 60'. Just before the accident occurred, she saw the lights of the Davis car disappear over 'the hill'. Apparently the collision occurred before she got over the hill. She stated that she made a fast brake application and stopped her car before reaching the vehicles involved. Mrs. Morrow's testimony was corroborated by her daughter Elizabeth who was riding as a passenger.
It is contended by appellant that there is no evidence to establish certain critical factors of time, distance and location of the two vehicles involved, without which a jury verdict against appellant could be returned only (so appellant argues) by speculation and conjecture. Appellant specifically claims there is no evidence to show that he could have seen the Read automobile from the crest of the hill; to show at what point north of the point of impact appellant...
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