Arnold v. Fisher
| Decision Date | 18 August 1962 |
| Docket Number | No. 8085,8085 |
| Parties | A.J. ARNOLD, Plaintiff-Appellant, v. Opal FISHER, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Douglas & Douglas, Neosho, for plaintiff-appellant.
Ruyle & Henry, Neosho, for defendant-respondent.
In this jury-tried action for damages in the sum of $15,000 on account of injuries alleged to have resulted from a vehicular collision, plaintiff appeals from an adverse judgment entered upon a unanimous jury verdict for defendant. About 7:30 A.M. on February 25, 1961, "a cold, frosty morning," A.J. Arnold, plaintiff herein, was riding in a 1958 Mercury sedan, owned by his son Bobby Lee (not then in the automobile), and being driven by his son Darrell, eighteen years of age. The Arnolds were proceeding in an easterly direction on U.S. Highway 60, which has a two-lane blacktop roadway approximately 24 feet in width, en route from the Arnold farm home near Seneca to Neosho where plaintiff was employed regularly and Darrell intended to seek employment. After traveling about one mile on Highway 60, "going upgrade all the time," at a speed estimated by both plaintiff and Darrell at 30 to 35 miles per hour, the right front fender of the eastbound Mercury ran into the left rear fender of a 1952 Ford automobile, also headed toward the east but then standing motionless, in which Mrs. Opal Fisher, defendant herein, had left her nearby farm home a very few minutes previously, en route to her regular employment in Neosho. Of the position of the Fisher Ford at the time of collision, we shall treat shortly.
Due to weather conditions, the windshields and windows of automobiles left in the open overnight (as both the Arnold Mercury and the Fisher Ford had been) were covered with frost in the early morning. With respect to the Arnold Mercury, plaintiff and his son Darrell testified that they had cleaned the windshield and rear window before they started that morning and that the windshield remained clear thereafter. With respect to the Fisher Ford, defendant and her husband said that, while she had finished dressing he had started the motor, warmed up the automobile, turned on the defroster, and "cleaned the frost off the windshield," and that, when defendant left the Fisher farm home, the windshield was clear and both the heater and the defroster were operating. However, when defendant turned from the Fisher driveway to the east onto Highway 60 and "the sun hit the windshield * * * it went to frosting over." Defendant drove "real slow" but the windshield "just kept covering." In her language "I drove pretty near to the top of the hill; I was trying to make it to Cook's (the next) driveway but I couldn't make it that far because I couldn't see to get there." So, she stopped.
Defendant fixed the point where she stopped as even with a clump of small trees on the south side of the highway, and defendant's witness Edsell, a civil engineer who subsequently made measurements and prepared a plat received in evidence, located that point as being approximately 650 feet east of the driveway (hereinafter referred to as the Fisher driveway), from which defendant had turned onto Highway 60. Upon trial, plaintiff testified that the collision had occurred "somewhere between 450 and 500 feet" east of the Fisher driveway. His pretrial deposition estimate of that same distance had been about 150 feet.
Defendant's evidence was to the effect that she had been unable to pull completely off the blacktop, because the south shoulder of Highway 60, at and near the point of accident, was not as wide as an ordinary automobile and fell off sharply into a deep ditch. She frankly admitted that, when she stopped, the left wheels of the Fisher Ford were "about 18 or 20 inches" north of the south edge of the blacktop, but she insisted that "I pulled over as far as I could"--"on the south side of the highway as far as I could get over." Plaintiff's evidence was to the effect that the south shoulder was of sufficient width to permit the parking of an automobile completely off the blacktop, but that the Fisher Ford was entirely on the blacktop with its left wheels about 2 feet south of the center line. In this connection, we note that, with the record affirmatively showing the width of the Fisher Ford as 6 feet 2 inches, Darrell also thought that the right wheels of the Fisher Ford were "within a foot" of the south edge of the 24-foot blacktop.
Regardless of the precise position of the Fisher Ford, defendant had turned off the ignition, had alighted from the automobile, and was "scraping real fast" on the windshield with a razor blade carried for that purpose, when she saw the eastbound Arnold Mercury "coming around the curve" west of the Fisher driveway. As to the unobstructed sight distance to the west, i.e., the distance at which the Fisher Ford could have been seen by an eastbound motorist such as Darrell, (a) defendant's witness Lett, eastbound on Highway 60 and the first motorist to stop at the scene of accident, estimated "around 1,000 feet," (b) defendant's husband estimated "around 900 feet," (c) defendant's witness Edsell after observation and measurement stated 800 to 850 feet, and (d) both plaintiff and his son Darrell thought about 550 feet. But whatever the distance at which the Fisher Ford could have been seen, plaintiff and his son (in precise accord on this detail also) agreed that neither did see the Ford until it was "about 20 feet" distant; and, with their testimony still following the same track, both said that, although Darrell swerved to his left, he could not go around the Fisher Ford because of an approaching westbound truck which they sighted about the same time they saw the Ford and which passed "right before" the collision. Defendant saw no such westbound vehicle. Admittedly, no truck stopped. In any event, Darrell never applied the brakes on the Arnold Mercury and its right front fender ran into the left rear fender of the Fisher Ford with the Mercury still traveling at undiminished speed estimated by plaintiff at "between 30 and 35 miles" per hour. As a result of the impact, the Ford was knocked forward or to the east about 20 feet and the Mercury "bounced back" and "nosed right down in the (south) ditch."
The only explanation or excuse offered by plaintiff or his son Darrell for their admitted failure to see the Fisher Ford until they were within 20 feet of it was that they had been blinded by the rising run or, as Darrell put it while seeking more innoculous language after plaintiff's counsel objected to use of the term "blinded," "it (the sun) didn't blind me; it just obstructed my vision for awhile." Darrell offered considerable testimony on this subject, not all of it easily reconcilable. His first statement in this evidentiary area was that the sun had been in his eyes "just momentarily, just when you came around that curve" west of the Fisher driveway. (All emphasis herein is ours.) When asked later whether anything had prevented him from seeing the Fisher Ford as he had rounded that curve, Darrell's response was, "well, the sun would be the only thing; I could see for a good distance, but I wasn't expecting her to be up there." But, to the second succeeding question as to whether "the sun blinded you * * * as you came around the curve," Darrell agreed, "yes, where I couldn't see a good distance." Although stating that he could see farther than 20 feet, he readily agreed that he had not seen the Fisher Ford until "about 20 feet" from it, repeating that "I wasn't looking for her because I wasn't expecting her to be there." Further along in his cross-examination, Darrell insisted that he "wasn't blinded" as he rounded the curve west of the Fisher driveway and that he "could see all right from the time (he) came around the curve up to the driveway"; but, "when I hit the driveway, the sun hit my eyes about the same time." Plaintiff said that the sun "blinds anybody going up the hill early of a morning" but immediately denied that it had blinded him. "I could see all the time"--"yes, about 30 feet ahead" of the Mercury.
Plaintiff's witness Reed eastbound on Highway 60, who stopped at the accident scene, said that he was "not completely" blinded as he rounded the curve west of the Fisher driveway, but that "you couldn't see as good as you could (on) an ordinary day." According to Reed, he saw the damaged automobiles when he was "maybe a hundred feet" distant. Defendant's witness Beavers also eastbound, who had entered Highway 60 from his home driveway only some 300 feet west of the Fisher driveway, had experienced the same difficulty as defendant in that the windshield of the Beavers automobile, although clear when he left home, had "frosted over pretty well" by the time he reached the Fisher driveway, but nevertheless Beavers said that "as soon as I rounded that curve I could see something up there, some cars." Defendant's witness Lett, likewise eastbound on the highway en route from Wyandotte, Oklahoma, to Springfield, said that there was "some sun through the windshield" but that "it wasn't so bright but what you could see the wreck" rounding the curve west of the Fisher driveway.
The only alleged negligence, on which the case was submitted by plaintiff's sole verdict-directing instruction 1, was "that the defendant failed to exercise the highest degree of care in that defendant stopped her automobile on the traveled portion of said highway and negligently left said automobile stopped on said highway in front of oncoming traffic." Upon appeal, plaintiff's principal point is that the trial court erred in giving defendant's sole cause instructions F and G. The primary reason assigned in subpoint (a) is that, since "at least a part of defendant's car was left stopped on the traveled portion of the highway, * * * this is not a true sole cause situation because it could not be...
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