Brawley v. Esterly
| Decision Date | 12 April 1954 |
| Docket Number | No. 1,No. 43733,43733,1 |
| Citation | 267 S.W.2d 655 |
| Parties | BRAWLEY et al. v. ESTERLY |
| Court | Missouri Supreme Court |
Burden & Shortridge, Joplin, for appellant.
Clifford Greve, St. Louis, Seiler, Blanchard & Van Fleet, Joplin, for respondents.
VAN OSDOL, Commissioner.
This action was instituted by plaintiffs, minors, for the wrongful death of their father, Willard Brawley, who was fatally injured or burned in the cab of the westbound tractor-trailer when or after the combination motor vehicle had collided with the eastbound DeSoto automobile driven by defendant's decedent Samuel H. Ward. The collision occurred about seven o'clock in the morning of December 22, 1950, on a long, sweeping curve in U. S. Highway 166 about one and a half miles east of Sarcoxie. Both defendant's decedent and his wife were fatally injured. No eye witness testified of having observed the actual collision.
Plaintiffs' case was submitted to the jury (by plaintiffs' principal Instruction No. 2) on primary negligence of defendant's decedent in failing to keep the DeSoto automobile as close to his right-hand side of the highway as practicable, in failing to turn the automobile to his right of the center of the highway so as to pass the tractor-trailer without interference, and in driving the automobile across the center of the highway into the pathway of the tractor-trailer. The trial court also submitted the issue of contributory negligence of plaintiffs' decedent in failing to drive the tractor-trailer as close to his right-hand side of the road as practicable and in failing to turn the tractor-trailer to his right of the center of the highway so as to pass the DeSoto without interference. A jury returned a verdict for plaintiffs awarding $15,000 damages, and defendant has appealed from the ensuing judgment.
Herein upon appeal, defendant-appellant contends the trial court erred (1) in overruling defendant's motion for a directed verdict, (2) in the admission of evidence, (3) in giving plaintiffs' principal Instruction No. 2, and (4) in overruling defendant's objection to improper, prejudicial and inflammatory argument.
Defendant did not introduce any evidence, and we shall endeavor to make a painstaking statement of the facts and circumstances as shown by plaintiffs tending to support the theory of plaintiffs' case.
U. S. Highway 166, a 'two-lane' highway, is of 'black-top' twenty-two and a half feet wide. The center of the pavement is indicated by a white line. In approaching the curve where the tragedy occurred from the west, an automobile moves eastwardly down a hill and across a bridge or culvert, and then somewhat upgrade bearing to the right (southeastwardly) into and around the curve. A yellow 'no passing' line is in the south lane of the pavement.
Plaintiffs' decedent had left St. Louis, 275 miles from the point of collision, some time after eight o'clock in the evening of December 21st. He was on his regular run from St. Louis to Joplin. He was driving a K-7 International truck with a Fruehauf trailer, 32-foot van, attached. The trailer at its rear was equipped with tandem dual wheels (four wheels on each side). The tractor at its rear was equipped with dual wheels (two wheels on each side). The overall length of the tractor-trailer combination vehicle was about forty-two feet. The trailer was loaded with prefabricated steel shelving.
Defendant's decedent Samuel H. Ward and his wife, Velma I. Ward, had started from Bell, California, approximately 1660 miles from the point of the collision, some time in the evening of December 19th. As stated, they were driving a DeSoto automobile. It is readily inferred the husband was driving the DeSoto at the time of the collision. They were intending to spend the Christmas holidays with relatives and friends in Missouri and Illinois.
There was evidence tending to show that, after the collision, the back end of the trailer rested six or eight inches south of the center line of the pavement. The trailer lay on its right side. The wrecked tractor extended out south of the pavement. The tractor was upside down. The right front of the tractor was demolished. The wrecked Ward car, the DeSoto, was headed westwardly on the north side of the pavement. About two-thirds of its length was east of the west side (the top) of the overturned trailer. There was just room to walk between the rear of the trailer and the wrecked DeSoto. Willard Brawley was 'under the steering wheel' of the tractor. The cab of the tractor was ablaze. Gasoline was coming from the tank under the driver's seat. The DeSoto was reduced to a mass of bent and twisted metal.
A truck driver, Donald R. Mead, who was the first to arrive at the scene, testified there was a man (defendant's decedent) in the driver's seat of the automobile and a lady on the right-hand side of the front seat. Because of the extreme heat, the witness could not rescue plaintiffs' decedent from the burning cab of the tractor.
A witness for plaintiffs testified that she resided in a house south of Highway 166 and about six hundred sixty feet from the point of the collision. Around seven o'clock in the morning of December 22d she was returning to the house from her outside toilet. She saw the Ward car coming from the west, and she saw the truck coming from the east; 'the Ward car was a little the farthest away' from the place where the collision later occurred. She did not see the collision, but heard the impact. She looked up to see what was occurring. She saw the 'tractor part' of the truck 'leaving the highway * * * going south.' When she 'looked down there,' she did not see the DeSoto. After a short delay the witness went to the scene of the collision. She saw black marks coming down the highway from the east. The marks were a little north of the center line.
Witness, Donald R. Mead, observed skid marks of dual wheels along the pavement. They were about fifty feet long. (Another witness estimated the marks were thirty-five or forty feet long.) The marks began about two feet north of the center line and the west ends curved slightly until the marks faded out in or a little beyond the (white) center line of the pavement. The marks There was a flat spot 'about the size of the palm of your hand' on the tires of the left tandem wheels of the trailer. An emergency application of the brakes 'would wear a place on the tires' like the spot witness saw. About twenty feet west of the west ends of the 'dual' skid marks, were some 'gouged' marks. These marks were just north of the center line and, at this point, there was some dirt and grease on the pavement--a spot There might have been 'two or three pieces (of debris) scattered around ten or twelve feet, but ninety percent was on the north side of the road.' There was an automobile tire mark 'among the debris.' The automobile tire mark was running 'west to east, generally.' It was ten or twelve feet long. It began about thirty feet west of the dual marks. One end of the automobile mark was almost to the center line, and the other was almost to the 'north edge of the slab.' About ten feet west of the automobile tire mark, another 'dual mark started' about three feet from the north edge of the pavement and curved down across the pavement to the southwestward. The dual mark was forty or fifty feet long. The mark 'looked like just a skid mark on a sharp left-hand angle.' The 'upside down' tractor was straight south of this mark. The debris was scattered 'in between' the easterly and westerly dual wheel marks. The overturned trailer was extending straight out towards the center line. Another witness said there was a 'pitted place' in the pavement 'where it looked like some hard object had hit it.' It was 'a little bit south of the center line' and west of the marks made by the dual wheels.
A witness had arrived at the scene a few minutes after the collision. He observed These tire marks 'hadn't been driven over.'
Sometime after the collision, the trailer was moved southwardly off the pavement, and the upset tractor was set back uprightly on its wheels. Photographs indicate the right front of the tractor had been struck with great force. The grill work and radiator were twisted over somewhat to the tractor's right. The right front fender and the right end of the front bumper were crumpled up or sheared off. The front wheels are shown to have been turned sharply to the tractor's left. As stated, the DeSoto was demolished.
(1) An appellate court, in reviewing a contention of error in overruling a defendant's motion for a directed verdict involving the question of whether a plaintiff has made out a case for consideration by a jury, must have a regard for the rule that substantial evidence must have been introduced tending to prove the facts essential to plaintiffs' recovery. In examining the evidence pertinent to this question, the appellate court must view the evidence from a standpoint favorable to plaintiff.
Plaintiffs were obliged to rely almost entirely upon circumstantial evidence. Of course facts essential to a recovery may be proved by circumstantial evidence, but the shown circumstances must be such that the necessary facts may be inferred...
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