Allman v. Yoder
| Decision Date | 08 June 1959 |
| Docket Number | No. 46772,No. 2,46772,2 |
| Parties | Garry ALLMAN and George Allman, by next friend, Wava Allman, Respondents, v. Elba YODER, Appellant |
| Court | Missouri Supreme Court |
E. E. (Tom) Thompson, Thomas A. Sweeny, Sam Mandell, Kansas City, John M. Belisle, Butler, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.
William J. Cason, Clinton, W. O. Jackson, Butler, for respondents.
BOHLING, Commissioner.
This is an action by Garry and George Allman, 13 and 10 years of age, respectively, by their next friend, Wava Allman, their mother, against Elba Yoder for $25,000 damages for the alleged wrongful death of wayne W. Allman, their father, in an automobile accident. Cecil L. Page was an original party defendant, but plaintiffs dismissed with prejudice as to him. The trial resulted in a nine-juror verdict for the defendant. Plaintiffs' motion for new trial was sustained on the grounds the verdict was against the weight of the credible evidence and the instructions given at the request of defendant were prejudicially erroneous. Defendant contends plaintiffs failed to make a case of actionable negligence; that plaintiffs' decedent was contributorily negligent as a matter of law, and that defendant's instructions were correct.
Granting a new trial on the ground the verdict is against the weight of the evidence is within the exercise of a broad judicial discretion resting in trial courts, and is not to be disturbed in the absence of manifest abuse. We examine the record to ascertain if plaintiff made a submissible case against defendant on a submitted ground of recovery and, in the instant case, whether a recovery be barred by decedent's contributory negligence as a matter of law. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 300; Schmidt v. Allen, mo., 303 S.W.2d 652[1-3, 19, 20]; Moore v. Southwestern Bell Tel. Co., Mo., 301 S.W.2d 817, 820; Berry v. Harmon, Mo., 323 S.W.2d 691, and cases there cited.
We consider the evidence on the issues involved in the light most favorable to a plaintiff, giving him the benefit of all favorable inferences arising therefrom, and disregarding defendant's evidence unless it aids plaintiff's case. Schmidt v. Allen, supra [1-3]; Zumault v. Wabash R. Co., mo., 302 S.W.2d 861, 862[2, 3]; Moore v. Southwestern Bell Tel. Co., mo., supra [1, 3]; Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 499.
Plaintiffs sought a recovery on the sole ground defendant was negligent under the provisions of section 304.022, subd. 1 (Laws 1953, p. 593, section 304.020, subd. 22), relating to the operation of emergency vehicles. (Statutory references are to RSMo 1949, V.A.M.S. and Supplement, unless otherwise indicated.) Section 304.022, subd. 1 provides:
As stated in Politte v. Miller, Mo.App., 301 S.W.2d 839, 842, operators of private motor vehicles are required, in the exercise of the highest degree of care, to be 'on the lookout or on the alert' for emergency vehicles giving the required signal either by siren or by lighted lamp; and, as we read section 304.022, subd. 1, other motorists, upon the immediate approach of such an emergency vehicle, should yield the right of way, so far as here involved, by immediately driving to a position parallel to and as far as possible to the right of the traveled portion of the highway and thereupon stopping and remaining stopped until the emergency vehicle has passed.
Wayne W. Allman was a member of the Missouri State Highway Patrol. At the time in question he was operating a Patrol 1955 Chevrolet coach, an emergency vehicle within section 304.022, subd. 3(1), following instructions received from Chief Radio Operator Frank Huber to investigate an accident in the vicinity of Deepwater in Henry County. The collision involved occurred shortly before 4:00 p. m., October 27, 1955, a short distance east of the intersection of highway No. 35 with Cass County highway B. The day was clear and the pavements and shoulders of the highways were dry.
Highway No. 35 is a two-lane, east-west, concrete highway, 18 feet wide, with a concrete lip about a foot wide on each side of the pavement. The shoulders are 8 feet wide. Highway B is a north-south road, but has a short jog to the west for one proceeding north. It is an oiled bituminous road south and a gravel road north of the intersection. There was testimony that this intersection was 80 to 90 feet wide.
The service station and cafe of Leonard R. Irle is located at the northwest corner and approximately 100 feet west of the intersection.
Trooper Allman was eastbound in the south lane of highway 35. Defendant, driving a 1949 Plymouth sedan in good operating condition, was following about 150 feet behind a westbound 1947 Chevrolet pickup truck, having a standard 6-foot long bed, operated by Cecil Page in the north lane of highway 35. All cars were approaching the intersection of highways 35 and B. Defendant stated Page signaled to go south on highway B, when about 150 feet east of the intersection; that he, defendant, was traveling 35 to 40 m. p. h., slackened speed to 25 m. p. h., continued on and was gaining on the truck; that he looked to the west just before Page turned, could see down the south lane of highway 35 along the side of the truck as far as the terrain would permit, but saw no approaching eastbound traffic; that Page, traveling 10 to 15 m. p. h., obstructed his view for about a second while turning; that he first saw the patrol car back of the truck when it was about even with the pumps of Irle's service station, about 100 feet west of the intersection.
Plaintiffs' witness Irle was at the grease rack, west of the pumps in front of his service station. He heard the horn and the brakes of the patrol car. He first saw the patrol car due south of him on the highway. The red light on top of the car was on and the horn was blowing. At that time the Page truck, coming from the east, was turning and its front part was going into the south lane and defendant's Plymouth was 50 to 70 feet east of the truck. As the truck turned south, the patrol car swerved to the north, crossed the center line with its left wheels about 100 feet west of the intersection, continued on with its left wheels in the north lane and, when it was 'pretty near' defendant's Plymouth, 'cut back' to the south lane of highway 35. He was noticing all three cars. The speed of defendant's Plymouth was not slackened and it was turned to the right at the point of impact.
Allman had swerved slightly to the north, passed a few inches behind the Page truck when it was within 2 feet of clearing the south half of the pavement; and, although Allman then swerved right to return to the eastbound lane and succeeded in getting the front end of his Chevrolet past the front end of defendant's Plymouth, which was on the north half of the pavement, the rear left fender and rear bumper of the Chevrolet struck the left front 8 to 10 inches, about the width of the left front headlight, of the Plymouth. This caused the Chevrolet to turn over and resulted in Trooper Allman's death.
Defendant testified he thought there was no danger and first sensed there might be an accident when the collision actually occurred, because he thought the patrol car 'would miss me.'
At the trial defendant testified his speed was 25 m. p. h. when the collision occurred, and that if Allman had had two feet more he would have cleared defendant's Plymouth.
Plaintiffs' witness DeMoss, a Clinton police officer at the time, testified that on the evening of the collision defendant stated that the red light on the patrol car was on; that he first saw the red light when the patrol car was 'coming up over the hill'; that the speed of the patrol car was 50 or 55 m. p. h.; and that defendant did not say he was partially on the shoulder when the collision occurred. Witness Irle testified he would not say that the patrol car was going faster than most cars traveling highway 35.
Photographs introduced in evidence show grades on highway 35 in the vicinity of the collision. Westvbound traffic comes over the crest of a grade, proceeds for a distance down a slight grade to a point approximately 250 to 300 feet east of the intersection and then up a slight grade and across the intersection to the crest of the grade a short distance west of the Irle service station.
W. A. Crowder, with the Highway Patrol since 1949, testified that the red light on top of the Chevrolet Allman was operating was the same type as the light on top of all the patrol cars, and could be seen on a level, straight highway for one-half to three quarters of a mile; that a westbound motorist on highway 35 approaching highway B could see the light, the siren and the top part of a patrol car, down approximately to the glass, when 150 feet east of the intersection for a distance of 621 feet to the west, when 200 feet east of the intersection for a distance of 653 feet to the west, and when 250 feet east of the intersection for a distance of 710 feet to the west, and that the switch for the red light on Allman's Chevrolet was in the 'on' position after the collision.
There was testimony to the effect that a 90-foot solid skid mark, made by the right wheels of the patrol car,...
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