Bunch v. McMillian

• Decision Date: 07 July 1978
• Docket Number: No. 10309,10309
• Parties: Thelma S. BUNCH and Charles Bunch, Plaintiffs-Respondents, v. James V. McMILLIAN and Empiregas Inc., of Cabool, a corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 809

568 S.W.2d 809

Thelma S. BUNCH and Charles Bunch, Plaintiffs-Respondents, v. James V. McMILLIAN and Empiregas Inc., of Cabool, a

corporation, Defendants-Appellants.

No. 10309.

Missouri Court of Appeals, Springfield District.

July 7, 1978.

Rich D. Moore, Moore & Brill, West Plains, for defendants-appellants.

No appearance, for plaintiffs-respondents.

Before STONE, P. J., and TITUS and FLANIGAN, JJ.

FLANIGAN, Judge.

This action arises out of a collision between a Ford automobile driven by plaintiff Thelma Bunch and a Chevrolet truck operated by James McMillian in the course of his employment for defendant Empiregas Inc., of Cabool. The jury awarded Thelma $1,200 on her claim for personal injuries and awarded her husband, plaintiff Charles Bunch, $100 on his derivative claim. Defendant appeals.

Defendant asserts that the verdict-directing instruction given for each plaintiff was erroneous. Each of the two verdict-directors submitted, in the disjunctive, three assignments of negligence on the part of defendant's driver McMillian. One of those assignments was that McMillian "failed to keep a careful lookout." The claim of error is that the evidence was insufficient to support the lookout submission. Defendant does not claim that the alternative submissions lacked evidentiary support. Defendant's point is well taken.

When a verdict-directing instruction submits in the disjunctive two or more assignments of negligence, the instruction is erroneous unless the evidence is sufficient to support all of the assignments. Shelton v. Bruner, 449 S.W.2d 673, 676(1) (Mo.App.1969). A plaintiff is entitled to the benefit of the most favorable combination of facts which reasonably may be inferred from all of the evidence so long as such facts do not conflict with plaintiff's basic theory of the case or with his own judicial admissions. Williams v. Christian, 520 S.W.2d 139, 141(3) (Mo.App.1975); Hansmann v. Rupkey, 428 S.W.2d 952, 954 (Mo.App.1968).

Negligence consisting of a driver's failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken "effective precautionary action." Heberer v. Duncan, 449 S.W.2d 561, 563(3) (Mo. banc 1970). A lookout instruction submits failure to see And failure to avoid injury "by 'any means supported by the evidence.' " Lovelace v. Reed, 486 S.W.2d 417, 419 (Mo.1972). Although a lookout instruction need not hypothesize the means by which the driver, charged with failing to keep a careful lookout, could have avoided the collision, the evidence must support a finding that he possessed and failed to use such means. Lovelace, supra. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 772(3, 4) (Mo.1965).

"Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged (with failure to keep a careful lookout) to take effective action in avoidance." Zalle v. Underwood, 372 S.W.2d 98, 102(2) (Mo.1963). Plaintiffs had the burden of showing a causal connection between the submitted negligence, i. e., failure to keep a lookout, and the injury sustained, Shelton, supra, at p. 680, and if the evidence leaves "the element of causal connection in the nebulous twilight of speculation, conjecture and surmise," Shelton, supra, at p. 680, the burden was not met and the judgment cannot stand.

Rarely does a plaintiff have affirmative evidence that the defendant was Not keeping a proper lookout, Welch v. Sheley, 443 S.W.2d 110, 118 (Mo.1969), and the jury has the right to disbelieve entirely the testimony of a driver that he Was looking vigilantly or that he saw another vehicle at a certain distance. Welch, supra, at p. 118.

The collision occurred at approximately 11:20 a. m. on March 6, 1973, on Highway 76, an east-west two-lane highway, approximately one mile west of Willow Springs. The only witnesses to the collision and the events preceding it were Thelma Bunch, who testified on behalf of herself and her co-plaintiff, and McMillian, who testified on behalf of defendant.

McMillian was the driver of a gas truck. He intended to make a delivery at the home of Duane Owens which was located on the south side of Highway 76. He intended to back into the Owens driveway which he had approached from the east. The driveway ran south from the south edge of the highway. The impact, according to the testimony of McMillian, occurred 25 or 30 feet west of the driveway. Although Thelma's testimony on the point is somewhat vague, it seems to be to the effect that the impact occurred "close to the driveway."

Plaintiff's evidence showed that there was a hill approximately 170 feet west of the point of impact. When the Ford, which was eastbound, reached the top of the hill, each vehicle became visible to the operator of the other. There was no evidence that the range of visibility exceeded 170 feet for either driver.

Thelma testified that she was driving the Ford at a speed of approximately 60 miles per hour. When she was coming over the hill, "was at the top of it," she saw the truck. She said that the truck was "across my lane and partway across the other lane" and it was facing north. She could not say whether the truck was moving or standing still. If it was moving, it was going so slow that she "couldn't tell." As soon as she saw the truck Thelma applied her brakes. She at all times remained in her righthand lane. After she applied her brakes she did not lose control of the Ford but "it was impossible for me to stop before the impact." Thelma said that the front of the Ford collided with the "left side of the truck toward the rear." At the time of the impact the truck was still heading north. Following the impact the Ford continued eastwardly and ended up in a ditch on the south side of the road.

In conjunction with Thelma's testimony, plaintiffs introduced a diagram of the scene....