Branstetter v. Gerdeman
| Decision Date | 10 January 1955 |
| Docket Number | No. 2,No. 44054,44054,2 |
| Citation | 364 Mo. 1230,274 S.W.2d 240 |
| Parties | Juanlta BRANSTETTER, Respondent, v. Curtis H. GERDEMAN and R. W. Beghtol, Defendants. Bert D. Kunzler, Appellant |
| Court | Missouri Supreme Court |
Hunter, Chamier & Motley, Moberly, for appellant.
Lamb & Semple, Moberly, for respondent.
BOHLING, Commissioner.
Juanita Branstertter sued Bert D. Kunzler, Robert W. Beghtol and Curtis H. Gerdeman for personal injuries, asking $65,000 damages. Plaintiff was injured when Gerdeman's 1950 Nash automobile ran into the rear of Beghtol's 1951 Austin and caused it to run into the rear of Kunzler's 1950 Chrysler, in which she was riding. We understand the automobiles were sedans. Gerdeman cross-claimed against Kunzler and Beghtol. Kunzler cross-claimed against Gerdeman. At the beginning of the trial plaintiff settled her claim against Gerdeman for $10,500. Beghtol testified that Gerdeman had paid him for his injuries and the damages to his automobile. The court sustained Beghtol's separate motions at the close of all the evidence for a directed verdict on plaintiff's claim and for a directed verdict on Gerdeman's cross-claim. The court overruled Kunzler's motion for a directed verdict on plaintiff's claim but sustained his motion for a directed verdict on Gerdeman's cross-claim. Prior to submission to the jury Kunzler's cross-claim against Gerdeman was compromised and settled. The jury returned a verdict for Kunzler and against plaintiff. Judgment was entered in conformity with the foregoing. Thereafter plaintiff's motion for a new trial was sustained only as to defendant Kunzler for error in giving said defendant's instruction on plaintiff's contributory negligence. Kunzler has appealed from the new trial order, contending plaintiff failed to establish said defendant's negligence on the grounds submitted and that his instruction on contributory negligence was not erroneous.
Plaintiff alleged several grounds of negligence against defendant Kunzler. She made like charges against defendant Beghtol. She submitted her case, so far as material here, as follows: That defendant Kunzler negligently and carelessly failed to exercise the highest degree of care 'by negligently and carelessly suddenly checking the speed or stopping his automobile on the highway when there was no immediate danger of colliding with the automobile being operated immediately in front of defendant Bert D. Kunzler's automobile, and if you further find that he negligently and carelessly failed to give a timely warning to operators of motor vehicles in the rear of his intention to suddenly check the speed or stop his automobile by extending his arm in a horizontal position so that the same could have been seen in the rear of his vehicle and that such failure was negligence notwithstanding you may find and believe from the evidence that said defendant's automobile was equipped with an electrical signalling device which upon application of the brake displayed a signal visible from the rear indicating an intention to stop * * *.'
We mention here that neither Kunzler nor Beghtol gave and arm signal but each gave a warning signal by the red lights on the rear fenders.
Plaintiff did not caution or complain to Kunzler at any time about his operation of the Chrysler.
All witnesses mentioned were plaintiff's witnesses, except witnesses Kunzler and Gerdeman. We take the facts, legitimate inferences and presumptions favorable to plaintiff. Many facts are not in dispute.
The collision occurred between 5 and 6 p. m., Sunday, July 1, 1951, on U. S. Highway 40 (an east-west highway) at or just past the steel superstructure (estimated to be 50 to 75 yards west of where the concrete bridge structure begins) on the approach for westbound traffic of the Daniel Boone bridge over the Missouri river. The bridge spans the river in a north-south direction, but for convenience we speak of the traffic as westbound and eastbound.
The highway is a three-lane concrete pavement. The three automobiles were traveling in the right-hand lane for westbound traffic. The sun was shining and the day was warm and dry.
On that Sunday morning Kunzler had taken some friends to see a baseball game in St. Louis and they were on their return to Moberly, Missouri, their home. Kunzler was driving. Plaintiff was seated on the front seat. Thomas Hull, on the left, and Miss Louise Martin, on the right, were on the back seat.
Robert W. Beghtol had just returned from Germany, where he was an employee of the State Department. He was enroute to Lincoln, Nebraska, where his folks lived. He left Indiana that morning. He brought the Austin with him from Germany. He was required to have his car inspected before leaving Germany and everything, including his rear warning lights, were operating properly. He checked them just before leaving St. Louis and they were functioning properly then.
The Missouri river was at flood stage on the day in question; and defendant Gerdeman took his wife and Neal Odelheid, their nephew, then 11 years old, on a 'sight seeing' trip in his Nash to see the flood. They lived at Wentzville, about 14 miles northwest of the bridge.
Briefly: Kunzler passed Beghtol 1 1/2 miles or so before reaching the bridge. Gerdeman, who originally was eastbound, entered the line of westbound traffic some distance behind the Austin. The traffic on the bridge slackened speed or stopped. Kunzler and Beghtol slowed down or stopped with the traffic. Gerdeman, however, ran into the Austin, knocked it against the Chrysler and plaintiff was injured.
There is no dispute about the traffic being heavy on Highway 40 out of St. Louis that day. It would slow down at times and then start forward again. This occurred 'on numerous occasions.' In the vicinity of the Daniel Boone bridge 'sight-seers' were standing along the shoulder of the highway looking at the flood waters and the automobile traffic over the bridge was very heavy in both directions.
The Chrysler was traveling with the traffic and the witnesses gave different estimates of the speed of the traffic, placing it between 20 and 40 miles an hour, most of them, including plaintiff, stating 30 miles an hour. A Pontiac automobile was immediately ahead of the Chrysler. Hull estimated the Chrysler was 30 feet behind the Pontiac. Kunzler estimated the distance at 20 to 40 feet. Kunzler glanced at different times in the rear view mirror and knew traffic was back of his Chrysler. He did not pay particular attention to these cars or to the distances. Asked how far behind, he stated it would be hard to estimate through the rear view mirror but 'speculated' the first car was between 30 and 60 feet behind. Beghtol testified he was 35 feet behind Kunzler and traveling 30 miles an hour.
The approach of the bridge is upgrade for westbound traffic. Kunzler noticed braking signal lights come on ahead. He could see the braking signals on more than one car as some cars veered to the side and because of the upgrade. He applied his brakes as quickly as he saw the lights. No one knew why the traffic slowed. There is no testimony of any prior intention of Kunzler to stop on the bridge. Plaintiff and her witness Hull, as well as others, testified that the traffic slowed. Hull estimated that the Chrysler rolled up to within something like 4 or 5 feet of the Pontiac. Miss Martin testified the Chrysler got within 10 feet of the Pontiac. plaintiff could not give the distances but she could not see the pavement between the Chrysler and the Pontiac just before the Chrysler was struck in the rear. Kunzler estimated he drove 20 to 50 feet back of the Pontiac and the distance probably closed some, maybe 20, 30 feet.
Plaintiff, when Kunzler started slowing, was relaxed, sitting sideways, facing Kunzler, and reading the score card she kept at the ball game. Plaintiff thought the Chrysler never 'stopped completely.' She felt the Chrysler 'begin to slow pretty fast,' a sudden slowdown, and she looked up and saw the Pontiac 'stopped or slowed down' and glanced back down when she saw 'we weren't going to hit.' Plaintiff testified with respect to the suddenness of the 'slow-down'; 'The suddenness would be if you were driving up to the stop sign expecting to go through it, and it changed from go to stop.' Beghtol, and perhaps another witness, thought the Chrysler came to a stop, but the other witnesses were of the opinion it only slowed down. Hull was of the opinion it was increasing speed when struck in the rear. Hull said it was 'a fairly sudden stop,' explaining he meant slowing down, and that Kunzler did not skid his tires. Miss Martin testified Kunzler testified the Chrysler moved forward only a few feet after being struck.
Beghtol, in addition, testified that after the Chrysler passed him there had been intermittent decreases and increases of speed in the line of traffic. He had no difficulty in seeing the red signals on the two rear fenders of Kunzler's Chrysler. He heard no squeak of brakes or anything like that. He put on his brakes to reduce his speed as soon as he saw the signals on the Chrysler. He estimated he traveled 55 or 60 feet before he stopped and that the Austin was 2 inches behind the Chrysler when the Austin stopped, but it did not then strike the Chrysler. He saw the Nash back of him immediately upon stopping 'but prior to that while I was driving along, no.' He could not answer with truthfulness how far the Nash was behind 'because I didn't notice.' When he stopped, he was the Nash in the rearview mirror and, while it was 'awfully hard to say,' he thought it was 40 feet away, coming fast. He estimated that in 2 seconds the Nash hit the Austin. When the Nash struck, it knocked the Austin forward and into the Chrysler, and after that the Nash was some distance behind the Austin.
Hull, Beghtol and State Patrolman Schacher testified that Gerdeman told them he took his eyes off of...
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