Berry v. Harmon

• Decision Date: 14 December 1959
• Docket Number: No. 46994,No. 1,46994,1
• Citation: 329 S.W.2d 784
• Parties: June Pogue BERRY, Plaintiff-Respondent, v. Victor L. HARMON and Roy Eugene Berry, Defendants-Appellants
• Court: Missouri Supreme Court

Page 784

329 S.W.2d 784

June Pogue BERRY, Plaintiff-Respondent, v. Victor L. HARMON and Roy Eugene Berry, Defendants-Appellants.

No. 46994

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1959.

Hartman, Guilfoil & Albrecht, E. C. Albrecht, Jr., James L. Homire, Jr., St. Louis, McClintock & Medley, Flat River, for appellant Victor L. Harmon.

Roberts & Roberts, J. Richard Roberts, Farmington, for appellant Roy Eugene Berry.

Schnapp & Cooper, Fredericktown, Jackson & Thomasson, Jackson, for respondent June Pogue Berry.

DALTON, Judge.

Action for damages for personal injuries sustained in a collision between two automobiles, in one of which the plaintiff was riding as a guest. Verdict and judgment were for plaintiff for $25,000 and against the operators of the respective automobiles. Defendants have appealed from the judgment entered against them.

The collision occurred about 9 p. m., November 2, 1954, on U. S. Highway 67, about one mile north of Fredericktown and five or six hundred feet north of a bridge over Village Creek. At the point of the collision and for some distance north and south, the highway was straight and level. It was paved with concrete approximately 20 feet in width and had broad earth shoulders on each side. The weather was clear and the pavement dry.

Plaintiff, an unmarried female minor, was riding as a guest passenger in a 1949 Chevrolet coach operated by defendant Roy Eugene Berry with whom she was keeping company. They were married subsequent to the date of the collision in question and prior to the date of the institution of the present action. On the occasion in question they were traveling north on the highway, intending to go to Flat River, when the Chevrolet collided with a southbound 1950 Ford club coupe owned and operated by defendant Victor L. Harmon. Defendant Harmon was en route from St. Louis to Poplar Bluff on a hunting trip. All parties were severely injured and plaintiff was rendered unconscious and remained so for 25 days. She had no personal recollection as to how or why the collision occurred. She called the two defendants as her witnesses.

Defendant Harmon testified that, as he was traveling south on his own side of the highway, he first saw the headlights of the Berry car approaching from the south about one-half mile away from him. Harmon's speed was about 50-60 m. p. h. He could not estimate the speed of the Berry car. At that time, the Berry car was apparently in its own traffic lane. As the Berry automobile came off of the Village Creek bridge, when the vehicles were approximately 300 yards apart, the Berry vehicle swerved to Harmon's side of the road and then returned to its northbound traffic lane when the two vehicles were about 200 yards apart. In the meantime, Harmon had slowed to about 50 m. p. h., and he continued driving at about that speed until the collision occurred. When the two vehicles were approximately 100 yards apart the Berry vehicle returned to Harmon's side of the road and Harmon pulled his automobile off onto the west shoulder of the highway. The Berry car crossed Harmon's southbound traffic lane to the west shoulder and Harmon, believing that the Berry car was going to stay on that shoulder, turned back to the pavement, as did the Berry car, and the collision occurred in the middle of Harmon's southbound traffic lane. Harmon had cut back to his left when the Berry car was 30 feet away. Harmon cut to his left a little before the Berry car turned back to the pavement, but the Berry car came back sharp and more abruptly than the Harmon car. Harmon said he told the patrolman that Berry 'came over on my shoulder and I had cut back to miss him then we hit.' The debris from the collision was on the west side of the highway. The Berry car had crossed to Harmon's side of the road twice or more before the collision. It seemed to Harmed that the Berry car wobbled in its own lane as well as crossed over into Harmon's lane. Harmonn had no recollection of applying his brakes at any time. Harmon did not 'come to himself' for several minutes after the collision and could not remember what had happened before the collision until after he was being removed to the doctor's office. There was evidence that defendant Harmon (sometime after the collision) said: 'I do not remember a thing about the accident.' Harmon denied making the statement.

A State Highway Patrolman, who arrived at the scene a few minutes after the collision, found the wrecked 1950 Ford coupe headed to the northwest on the west side of the highway. About one-fourth of the car was off on the west shoulder of the highway. He also found the wrecked 1949 Chevrolet coach lying on its left side in the northbound lane headed beck to the south, completely on the east half of the highway. Plaintiff and Berry were both pinned in the car. The two vehicles were approximately 500 feet north of the north end of the bridge over Village Creek. The right side of the Harmon car was about 15 feet south of the front end of the Berry car. There were no skid marks on the pavement. Practically all the glass, dirt and debris were on the northbound lane, that is, on the east side of the highway and out on the east shoulder. In the doctor's office Harmon told the patrolman that Berry 'was coming up the road weaving back and forth and I didn't think I could miss him by staying on my side of the road so I cut to his side of the road.' The frame of the Berry car was sprung to the left.

Defendant Berry testified that when he first saw the Harmon car both cars were on their own respective sides of the highway and approaching each other. He was driving the Chevrolet at about 55 m. p. h. and the speed of the Harmon car was from 70 to 80 m. p. h. When they were close together the Harmon car veered to Berry's side of the highway. Berry tried to brake and swerve to the right but had no time to do so. He tried to, 'because Mr. Harmon was on my side of the road coming straight at me.' The whole front end of the Harmon car struck the Chevrolet about one foot from the right headlight. The collision occurred on Berry's side of the highway. On two previous occasions Berry, prior to the present trial, had testified that he had no memory of the collision, but four years later and a few weeks before the present trial, his memory suddenly returned as he was passing the scene of the collision. He did not immediately report the matter to his attorney for fear no one would believe him, but later did so. Plaintiff's witnesses, Dr. Lam and Dr. McFadden, testified that such a sudden return of memory was possible and had happened to others. Berry was 17 years of age at the time of the collision, and had drunk about one-half bottle of beer before leaving Fredericktown for Flat River. There was testimony that defendant Berrt's breath bore the odor of beer at the scene of the collision and the odor of alcohol at the Bonne Terre Hospital, where he was taken in an unconscious condition following the collision. Between 7 and 8 p. m. that evening he had seemed perfectly sober.

The cause was submitted against the respective defendants by separate instructions and solely on negligence in operating their respective automobiles at a high and dangerous rate of speed under the facts and circumstances then and there existing and in failing to drive and operate the automobiles as close to the right-hand side of the highway as practicable. These assignments of negligence were submitted in the conjunctive. All other theories of negligence pleaded or supported by evidence were thereby abandoned. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93(1); Quinn v. St. Louis Public Service Co., Mo.Sup., 318 S.W.2d 316, 323(16).

Instruction No. 10, requested by plaintiff, further instructed the jury as follows: '* * * if you find and believe from all the evidence and under the other instructions of the Court that the negligence, if any, of Defendant Berry, and the negligence, if any, of Defendant Harmon, directly concurred, combined and contributed to cause said collision and plaintiff to sustain injury, then it would be your duty to return a verdict in favor of the plaintiff and against both defendants because if both defendants were negligent in any respect submitted to you in these instructions, and if that negligence directly contributed to cause injury to plaintiff, then neither defendant, even if less negligent than the other defendant, could make use of the concurring negligence of the other to defeat the claim of the plaintiff against the other defendant * * *.' (Italics ours.)

Appellant Harmon contends that the court erred in overruling his motion for judgment notwithstanding the verdict, because plaintiff failed to make a submissible case against this defendant under either of the theories of negligence submitted. He insists (1) that there was no duty resting on him to operate his automobile as close to his right-hand side of the highway as practicable, since the statute imposing that duty was repealed prior to the collision; and (2) that there were no facts in evidence to make a submissible case against him on the issue of negligence in operating his automobile at a high and dangerous rate of speed at the time of the collision.

As stated, plaintiff was injured November 2, 1954. Section 304.020(2) RSMo 1949, V.A.M.S., containing the 'as close to the right-hand side of the highway as practicable' rule had been repealed and a new section enacted. Laws 1953, p. 587. The repeal became effective August 29, 1953. The new Sections 304.014 and 304.015 RSMo (Laws 1953, p. 587) V.A.M.S., provided: 'Every person operating or driving a vehicle upon the highways of this state shall observe and comply with the following rules of the road. * * * Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:' (The exceptions are not applicable under the facts here.) We...