Burch v. King

• Decision Date: 12 April 1977
• Docket Number: No. 36934,36934
• Citation: 549 S.W.2d 919
• Parties: Deborah BURCH et al., Respondents, v. Howard Odis KING, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 919

549 S.W.2d 919

Deborah BURCH et al., Respondents, v. Howard Odis KING, Appellant.

No. 36934.

Missouri Court of Appeals, St. Louis District, Division Four.

April 12, 1977.

Roberts & Roberts, Geoffrey L. Pratte, Farmington, for appellant.

No appearance for respondents.

ALDEN A. STOCKARD, Special Judge.

The four minor children of William Joseph Burch, deceased, brought this action for the alleged wrongful death of their father which resulted from a three-vehicle collision. The defendants were Jesse Floyd Reed, the operator of one of the vehicles, and Sherry Dell Reed, his wife, who was a passenger; Howard Odis King, the operator of one of the other vehicles, a pick-up truck; and Lawton Roberts, the owner of a horse that was killed, apparently by deceased's vehicle. King filed a cross-claim against Roberts and the two Reeds for personal injuries and property damage, and the two Reeds filed a cross-claim against King for personal injuries. At the close of their evidence plaintiffs dismissed their petition as to Roberts. We find no dismissal of King's cross-claim as to Roberts, but there was no submission to the jury of any claim as to him, and we consider that part of the cross-claim to have been abandoned.

The jury found against all cross-claimants on their individual claims, and awarded damages in favor of plaintiffs and against Jesse Floyd Reed and Howard Odis King in the amount of $30,000.00. Only King has appealed, and the term appellant shall refer only to him.

Plaintiffs-respondents have not filed a brief. We recognize that under the present Supreme Court Rules there is no penalty for such failure, but the practice is not to be favored. A brief by respondent should be helpful to an appellate court and is a "part of the proper and orderly appellate process." Shephard v. Hunter, 508 S.W.2d 234, 237 (Mo.App.1974).

We note here that a substantial portion of the testimony was given with reference to a prepared diagram of the accident area and to photographs, none of which have been filed with this court; a most undesirable procedure when, as in this case, some of the issues for appellate review require reference to that testimony of witnesses in which reference was made to the diagram and photographs.

Shortly after 1:00 o'clock in the morning of March 25, 1973, Jesse Reed was operating his Ford automobile with his wife as a passenger west bound on Highway W. between Farmington and Doe Run in St. Francois County. The highway was twenty-two feet in width and had a black asphalt surface. At the time it was misting rain and the road surface was wet. William Joseph Burch, the deceased, was following the Reed automobile. Jesse saw a horse on the shoulder of the highway, and according to his testimony, he stopped his automobile in the westbound traffic lane and got out of his automobile to attempt to catch the horse. Mr. Burch stopped his automobile approximately sixty feet from the Reed automobile. Jesse testified that after he stopped he looked back in his rear view mirror and saw Mr. Burch get out of his automobile. Apparently it was the Burch automobile that struck and killed the horse, but this is not clear from the evidence. There was some damage to the right front portion of the Burch automobile, but the body of the dead horse was lying off the highway forty-two feet westward, or ahead, of the Burch automobile.

King was operating his 1973 Chevrolet pick-up truck eastward on Highway W about 50 miles an hour. He rounded a curve and saw automobile headlights, as he said, "on my side of the road." He applied his brakes and "locked it up" and his truck began to slide. He stayed on his side of the highway until his truck collided with the Reed automobile "head on." His truck then went into a spinning action. The left front portion struck the left front side of the Burch automobile, and the truck spun around out of control and the back part then hit the left rear part of the Burch automobile. The truck ended up in the ditch on the south side of the highway headed westward.

Mr. Burch's body was found in the highway seventy feet from the centerpost of his automobile and to the rear, or eastward, of it. Exactly what caused the death of Mr. Burch is not disclosed by the evidence, but King stipulated that the death of Mr. Burch resulted from the "collision occurrences."

Appellant's first point is that the trial court erred in overruling his motion for a directed verdict because Burch was contributorily negligent as a matter of law in parking his automobile at might on the traveled portion of the highway without lights. Appellate cites Wilber v. Mana, 356 S.W.2d 88 (Mo.1962), and Glenn v. Offutt, 309 S.W.2d 366 (Mo.App.1958), but could have cited many additional cases, to the effect that it is negligence per se for one having custody of a motor vehicle to allow it to remain at rest on a highway without lights during the period when lights are required.

Appellant argues that there was "no evidence indicating that the lights on the parked vehicle of plaintiffs' decedent were turned on at the time of the accident." We do not agree. Jesse Reed, called as an adverse witness by plaintiffs, testified that as he sat on the highway after he had stopped he saw the lights of an automobile approaching from the rear. This had to be the Burch automobile. The following then occurred:

Q. At any time did you see those lights go out?

A. No. sir.

Q. Were those lights on at the time your car was struck?

A. I'd, I'd have to say All I could say is I believe they were, I'm not sure.

Q. You did not consciously

THE COURT: I missed that. They were on or off?

A. I'm not sure.

THE COURT: I know. But you best opinion is which?

A. Well, my best opinion would be that they were on.

It is true that on cross-examination, Jesse testified that he did not pay "close attention" as to whether the headlights on the Burch automobile were on when he saw the decedent get out of the automobile, and that he could not "swear to it under oath" that the headlights were on or off. Sherry Reed testified that she saw the Burch automobile come to a stop behind the Reed automobile, but that she did not see Mr. Burch get out of his automobile. When asked whether the Burch automobile had its headlights turned on, she replied, "I can't remember." Also, King testified that as he "popped around the curve all I seen was the car on my side of the road." He further testified that he recalled seeing only the headlights "coming facing me" and that he saw two headlights "on my side of the road."

The burden of establishing contributory negligence on the part of plaintiffs' decedent was on appellant unless it was established as a matter of law by plaintiffs' evidence. With the burden on the defendant, the issue of contributory negligence is usually for the jury, especially where there is a conflict in the testimony, or the testimony is not definite. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498 (1951). Contributory negligence as a matter of law may be found only when reasonable minds can draw only the one conclusion of negligence. Whether Burch was contributorily negligent as a matter of law in this case turns on an issue of fact: did he stop his automobile on the highway without lights? There is evidence consisting of the testimony of Jesse that the lights were on and he did not see those lights go out even though he saw Mr. Burch leave the automobile. Admittedly, there was evidence which implied, or at least permitted an inference, that the lights were not turned on, but this results only in the issue being one for the jury.

We mention one thing further. The Burch automobile was in the westbound lane. There is no question about that. The King truck struck the Reed automobile, and according to King that collision occurred in the eastbound lane. It was only after this and after the King truck went into a "spinning" motion out of control that it entered the westbound lane and struck the Burch automobile or Mr. Burch. Therefore, assuming the headlights on the Burch automobile were not on, we fail to see how that negligence could have been the proximate cause of any collision which resulted in the death of Mr. Burch.

The trial court properly submitted the issue of contributory negligence on the part of Mr. Burch to the jury.

Appellant next challenges Instruction No. 6, the verdict-directing instruction which submitted as negligence on the part of King that he "drove at a speed which made it impossible for him to stop within the range of his visibility." Appellant asserts that there was no evidence to show how this contributed to the death of Mr. Burch. He argues that there was substantial evidence that Reed was approaching King in King's lane, and plaintiffs presented no evidence that had King been able to stop within his range of visibility, the Reed-King collision would have been avoided. But we note, the important issue is not whether the Reed-King collision would have been avoided, but whether injury to Mr. Burch would have been avoided.

The actual stopping distance for King's truck at the speed it was traveling was a greater distance than that from the point where the Reed automobile first became visible to King to the point of impact. Appellant's argument that his speed, even if excessive under the circumstances, could not have been the proximate cause of the death of Mr. Burch is somewhat tenuous, and is as follows: (a) The Reed automobile was moving westward in...