Biehle v. LaChance
| Decision Date | 19 April 1966 |
| Docket Number | 31993,Nos. 31947,s. 31947 |
| Citation | 403 S.W.2d 936 |
| Parties | Genevieve BIEHLE, Plaintiff-Respondent-Appellant, v. Robert Ray LaCHANCE, Defendant-Appellant-Respondent. |
| Court | Missouri Court of Appeals |
William L. Mason, Jr., Galena, for defendant-appellant-respondent.
Earl R. Blackwell, Hillsboro, for plaintiff-respondent-appellant.
This is an action brought by the widow of Gilbert H. Biehle. Biehle was killed when the automobile which he was driving was struck by the automobile which the defendant was driving. The plaintiff sought the sum of $25,000 in damages and obtained a verdict and judgment for $15,000. After an unavailing motion for judgment in accordance with his motion for a directed verdict made at the close of plaintiff's case or in the alternative for a new trial, the defendant appealed.
The collision occurred on Highway 21 which runs in a general north and south direction. It is interested from the east by Vineland Road and it was at this intersection that the automobiles collided. Mr. Biehle, husband of the plaintiff, was driving a 1951 Plymouth. He had gone south on Highway 21 to the Vineland Road intersection. He turned left across the northbound lane of 21 to enter Vineland Road and before clearing the northbound lane of 21 his automobile was struck by the defendant's automobile which was traveling north on Highway 21. Mr. Biehle, who was alone in his car, suffered a broken neck from which he died without regaining consciousness.
The only witness called to testify regarding the collision of the two cars was a State Highway Patrolman. Some questions and answers from a deposition given by defendant, Mr. LaChance, were offered and read to the jury. Photographs of the highway were also introduced. The plaintiff, Mrs. Biehle, testified, but not about the collision as she did not witness the occurrence. All of the testimony and evidence offered was in the plaintiff's case as the defendant stood upon his motion for a directed verdict.
Highway 21 to the south of Vineland Road is straight and level. It is a two-lane highway about twenty-two feet wide, providing one lane for southbound traffic and one for northbound traffic with each lane approximately eleven feet in width. The photographs show that a short distance north of the intersection the highway turns sharply west into a curve which would obscure southbound traffic from one traveling northwardly. On June 2, 1963, the day of the occurrence, the weather was clear and the road dry. For about a quarter of a mile one, traveling northwardly on 21, would have a clear view of the road ahead up to the intersecting Vineland Road. The defendant stated in his deposition that he was driving a 1960 Plymouth which was in good condition. As he traveled northwardly on 21 he saw the car operated by Mr. Biehle coming south in the lane for southbound traffic approaching the intersection of Vineland Road.
Mr. Biehle's car was about ten feet north of the intersection when the defendant first noticed it. The car 'hesitated for a moment' at the intersection and then turned to its left to go into Vineland Road. The defendant estimated that his own car was about 130 to 132 feet from Biehle's car when its left front wheel crossed into the northbound lane of 21. The defendant stated that Mr. Biehle, looking straight ahead, drove into the northbound lane at an unvarying speed which he estimated to be between five and ten miles per hour. The defendant stated that his own car skidded 130 to 135 feet into collision with Mr. Biehle's car when Mr. Biehle's car was still about three feet short of clearing the northbound lane.
The defendant stated that he was traveling at fifty miles per hour at the time Biehle's car started into the northbound lane. In another part of the deposition he said that he was traveling at a speed of forty to fifty miles per hour, and later that his speed was forty-five to fifty miles per hour. In another question and answer read he said that his speed was about twenty-five miles per hour at the time of the collision. He also testified that his own car was five or five and one-half feet in width.
The following questions and answers from a deposition by LaChance were read:
'Q Could you tell us, considering the conditions out there that day, the dry level pavement just as it was that day as you have described it your car, considering the tires you had on it, the condition of your brakes, can you tell us in what distance, going at a speed of 45 miles an hour, that you could have brought your car to a stop?
'A No, not exactly.
'Q Can you estimate it for us?
'A About 150 foot.
'Q Can you tell us, bearing in mind that same question, in what distance it would have taken you to bring your car to a stop at 50 miles an hour?
'A About 165 to 70 foot.'
The patrolman, who arrived shortly after the accident and while the ambulance which moved Biehle was still there, stated that LaChance gave his speed at fifty miles per hour. He also said that there were skid marks made by the right tire of LaChance's car up to the point of collision that measured 133 feet in length. The skid mark of the right wheel was unbroken and started at about one foot, seven inches within the northbound lane and angled off to four and one-half feet from the edge of the northbound lane at the point of the collision. Both cars were off the highway after the collision.
The case was submitted upon the humanitarian theory of negligence. It conjunctively required a finding of failure to stop, slacken speed and to swerve. The defendant contends that no submissible case was made on any of the charges o negligence submitted.
The plaintiff conversely asserts that she made a submissible case on defendant's failure to stop and to slacken...
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Martin v. Sherrell
... ... Lindner v. Sawyer, Mo., 388 S.W.2d 896, 899; Vietmeier v. Voss, supra, 246 S.W.2d at 789(10), 790; Biehle v. LaChance, Mo.App., 403 S.W.2d 936, 939(4, 5); Harrellson v. Barks, supra, 326 S.W.2d at 359(6--9) ... The judgment for plaintiff ... ...
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Section 4.44 Effect of Using an Adverse Party’s Deposition Testimony
...an adverse party will be bound by it unless it is contradicted by the introduction of evidence to the contrary. See: ·Biehle v. LaChance, 403 S.W.2d 936 (Mo. App. E.D. 1966) ·Brophy v. Clisaris, 368 S.W.2d 553 (Mo. App. E.D. 1963) ·Stevens v. Waldman, 375 S.W.2d 633 (Mo. App. E.D....