Bowman v. Heffron

• Decision Date: 10 November 1958
• Docket Number: No. 46292,No. 1,46292,1
• Citation: 318 S.W.2d 269
• Parties: John BOWMAN, Appellant, v. Warren HEFFRON, Respondent
• Court: Missouri Supreme Court

Page 269

318 S.W.2d 269

John BOWMAN, Appellant, v. Warren HEFFRON, Respondent.

No. 46292.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 8, 1958.

J. William Blackford, Roy W. Brown, Blackford, Imes, Compton & Brown, Kansas City, for appellant.

Darold W. Jenkins, A. Lamkin James, James & Jenkins, Marshall, for respondent.

DALTON, Judge.

Action for $50,000 damages for personal injuries and property damage, with a counter-claim by defendant for $10,000 damages for personal injuries. Each party alleged that the damages were sustained by reason of the negligent operation of an automobile by the other. Verdict and judgment were for defendant on plaintiff's claim and for plaintiff on defendant's counter-claim. Plaintiff has appealed.

It is admitted that on or about the 23rd day of December, 1955, there was a collision between the Ford automobile operated by defendant and a 1939 Chevrolet automobile driven by plaintiff; and that the collision occurred on Missouri State Highway No. 240 at or near the east city limits of Marshall, Missouri.

According to plaintiff's testimony, he was driving east on the south side of the highway at 25 to 35 miles per hour. As he approached the location of the north entrance to the city park, an automobile four or five car lengths ahead of him began a right turn into the park entrance and plaintiff slowed down to a speed of 10-15 miles per hour when he was some two car lengths behind this car. Plaintiff then accelerated to 25 miles per hour. As plaintiff proceeded to pass the park entrance, the defendant, who was then operating a Ford automobile in the opposite direction (west) on the same highway, suddenly and without warning when about four car lengths from plaintiff's automobile, turned the Ford automobile to its left and onto the south side of the highway where the collision occurred. The right front fender of plaintiff's automobile struck the right-hand side of the Ford, as the Ford was crossing the south side of the highway at a 45 degree angle. The collision occurred when the Ford automobile was some 8 to 10 feet onto the south side of the highway. The right side of each car was damaged. Plaintiff fixed the time of the collision at 8:00 p. m. and place as 30 feet east of the mentioned city park entrance. He said that, while he had seen defendant's automobile approaching, the defendant gave no warning of an intention to turn to the left until he began the turn; and that, after the turn started, plaintiff had no time to take any action to swerve, turn or stop, prior to the collision. Plaintiff's automobile at no time left the south or eastbound lane of the highway. Immediately preceding the collision, the left wheels of plaintiff's automobile were about one foot to the south of the center line of the highway and on his own side of the highway. Plaintiff sustained severe injuries to his right foot and ankle and other injuries.

Defendant's evidence tended to show that defendant was driving a 1951 Ford sedan west on the mentioned highway and had slowed from about 35 miles per hour to about 20 miles per hour, since he intended to turn left at the park entrance intersection. He was taking his girl friend to a dance in the V. F. W. hall located on the south side of the city park. Defendant had been coming up a slight hill, where the road made a slight curve to the left, however the road was pretty straight where the collision occurred. Defendant saw plaintiff's car approaching. He testified: '* * * as I got about four or five car lengths of it, it started driving over in my side of the road, which was the north side; and, as I said, this car just started driving over in my lane, it wasn't like turning, it was sort of angling over, just knifing right in, and we reached a point where I had to make a split second decision as to which way I could perhaps get out without hurting myself or Carol, and it was this moment when I had to make a decision, and it looked to me the only way out was to cut to the left, I didn't have room to the right it didn't look like, so I took this decision and cut the wheel hard to the left. Then we had this impact.' Defendant further said: '* * * I just taken my wheel and cut it real hard to the left, to try to get out of the way, and when we hit I would estimate we hit both right sides * * * and I'd say that the point of impact was just about the middle of the highway.' Defendant sustained severe physical injuries.

Defendant made a fairly sharp turn to his left. Before the impact occurred, plaintiff's car had moved over the center line until the right side of his automobile was about the center of the highway. 'At least half of his (plaintiff's) car was in the westbound or north lane of traffic.' The collision occurred around 50 feet east of the city park entrance, 50 feet east of where defendant was intending to turn left. The headlights of both cars were on. Defendant first noticed the plaintiff's car begin to turn to its left, when plaintiff's car was still on the west side of the park entrance intersection a car's length or two. The park entrance was 25 feet wide at the widest.

Other evidence tended to show the pavement was 18 feet in width and dry. An officer called to the scene of the collision found the parties in their respective cars. Plaintiff's car was headed south approximately crosswise of the south or eastbound lane of the highway, some 39 feet east of the east side of the park entrance. The back end was one foot north of the center line. Defendant's car was 13 feet further east and across the center line of the highway, with the back of the car 3 feet north of the center line of the highway. Most of the dirt, glass and debris was between the two cars and most of it was on the south half of the pavement.

Defendant's evidence further tended to show plaintiff smelled strongly of alcohol and that he was, in fact, intoxicated at the time of the collision. Several cans of beer and a half of a one-fifth of whiskey were found in plaintiff's automobile after the collision. Plaintiff testified that he had consumed no intoxicants on the day of the collision and that he was taking the beer and whiskey to friends at Glasgow, Missouri.

Plaintiff's Instruction P-1 submitted a finding of defendant's negligence and directed a verdict for plaintiff, in part, as follows: '* * * if you further find that the defendant Heffron negligently operated his vehicle to the left or south side of the center line of said highway 240, and immediately in front of the plaintiff's automobile and negligently operated his vehicle to the left or south side of the said highway when approaching within one hundred feet of said intersection and, while intending to turn to the left at said intersection, negligently failed to yield the right of way to the Bowman car, if you find that the Bowman car was so close to said intersection as to constitute an immediate hazard, thereby proximately causing the collision in evidence, if so, and plaintiff was injured thereby * * *'.

The negligence submitted by defendant against plaintiff appears from Instructions D-2 and D-3, both of which instructions on the facts therein submitted, directed a verdict for defendant on plaintiff's petition and for defendant upon defendant's counter-claim against plaintiff, in part, as follows: (Instruction D-2) '* * * if you find and believe from the evidence that at the time mentioned in the evidence the plaintiff John Bowman failed to have his automobile under reasonable control and failed to operate the same upon his right-hand side of the highway, if so, and as close to the right-hand side of the said highway as practicable, and if you further find that the plaintiff John Bowman drove his automobile onto his left-hand side of the highway at a time when the left-hand side of the highway was not free of oncoming traffic, and if you further find that the plaintiff John Bowman was guilty of negligence in the foregoing respects, if so, and if you further find that such negligence caused the collision mentioned in the evidence and that as a direct and proximate result of the negligence of the plaintiff, if any, the defendant Warren Heffron was injured and that the defendant Heffron was in the exercise of the highest degree of care, then you are instructed that your verdict shall be for the defendant, both on plaintiff's petition and upon defendant's counter-claim.'

Instruction D-3 was as follows: 'The Court instructs the jury that it is a violation of the laws of Missouri to operate a motor vehicle in an intoxicated condition, and if you should find and believe from all the evidence in this case that the plaintiff Bowman drove and operated his car while he was in an intoxicated condition at the time of the collision in question, and thereby the plaintiff Bowman was guilty of negligence, and if you further find that his negligence in this respect, if any, directly caused the collision and that the defendant Heffron was not negligent, then your verdict will be against the plaintiff on his petition, and if you further find that the defendant Warren Heffron was injured in the collision, your verdict should be in favor of the defendant Warren Heffron on his counter-claim.'

Appellant contends that the court erred in giving Instruction D-3 for the reason that it did not correctly state the law of Missouri as applied to the facts of this case, in that it directs a verdict for defendant on the petition and on the counter-claim without requiring a finding that at the time and place in question defendant was exercising the highest degree of care in the operation of his automobile; that even intoxicated persons are entitled to the exercise of the highest degree of care by others using the highway; that no standard of care is set out for defendant but a verdict is directed against plaintiff on the petition and the counter-claim; that the...