Burks v. Leap
| Decision Date | 13 March 1967 |
| Docket Number | No. 1,No. 52015,52015,1 |
| Citation | 413 S.W.2d 258 |
| Parties | Ellis BURKS, Respondent, v. Earl Jack LEAP and Dysart Dental Laboratory, a Corporation, Appellants |
| Court | Missouri Supreme Court |
E. E. Thompson, Thomas A. Sweeny, Kansas City, for defendants-appellants, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
Robert L. Shirkey, Kansas City, for plaintiff-respondent.
HIGGINS, Commissioner.
Action for $25,000 damages for personal injuries. Verdict and judgment were for defendants, and defendants appeal from the award of a new trial to plaintiff on grounds that the verdict was against the weight of the evidence and error in giving an instruction.
Plaintiff alleged that on January 14, 1964, at approximately 5:42 p.m., he was driving a 1962 Chevrolet in a southerly direction on Raytown Road near the intersection of 128th Street (129th Street at trial) in Kansas City, Missouri, and that defendant Leap, 'as the agent, servant and employee' of defendant Dysart, then and there negligently operated a 1962 Corvair in a northerly direction into collision with plaintiff causing him to sustain bodily injuries. Defendants' separate answers were general denials and allegations of contributory negligence.
Richard L. Kinney of the Kansas City Police Department Accident Investigation
Unit received a call referable to this collision at 5:40 p.m., January 14, 1964. He proceeded to the scene and found the streets icy and 'very slick out on the hill there.' There were places with and without ice. When he arrived 'approximately fifteen minutes' after the accident, it was almost dark; 'it was dusk when the accident occurred.' Raytown Road has blacktop asphalt surface 22 or 24 feet wide. He determined that Earl Jack Leap had been driving his 1962 Corvair north on Raytown Road and learned from him that he first noticed danger when approximately 100 feet from the collision site; that his speed at that time was approximately 40 miles per hour; and that his speed was approximately 25 miles per hour at collision. Mr. Kinney also determined that plaintiff was driving a 1962 Chevrolet 4--door station wagon south on Raytown Road, and learned from him that he also first noticed danger at approximately 100 feet from the collision; that his speed then was 20 to 25 miles per hour; and that his speed was 0 to 2 miles per hour at collision. Each driver was accompanied by his wife. The officer also determined that a car operated by Hollis Smith was 'stuck' in the northbound lane headed south and that the Leap car struck it after colliding with plaintiff. He found damage to the left side of plaintiff's automobile and to the left front of the Leap automobile as a result of the collision between plaintiff and Mr. Leap, and damage to the right rear of Mr. Leap's automobile as a result of the collision between Mr. Leap and Mr. Smith. The officer found debris, dirt, and 'drop-down' in plaintiff's side of the road, i.e., in the southbound lane or west half of the highway. He also found similar debris in the northbound lane near the Smith car, and stated that the two impacts were in the intersection approximately 25 feet apart. The officer judged the distance from the intersection south to the crest of the hill at approximately 750 feet. The shoulder on the east side of Raytown Road is fairly narrow and a ravine is beyond. There is a small shoulder and a drainage ditch on the west side. The officer judged an ordinary automobile to be approximately 6 feet wide. He reported the speed limit as 50 miles per hour and it was posted at 55 miles per hour at trial.
Plaintiff was 34 years of age, employed by Armco Steel at the time of the collision. He was driving his 1962 Chevrolet station wagon from his home in Independence to take his wife to a doctor in Grandview. The weather was clear and cold and there were 'spots of ice' on the road. He was not using chains or snow tires and had experienced no difficulty in controlling his automobile. He was familiar with Raytown Road and, on this occasion, had been on it for 'maybe a half hour or better.' His speed was approximately 25 or 30 miles per hour before slowing down approximately 25 or 30 feet north of the 'stuck' vehicle (Smith's). He saw the Smith vehicle headed south with its left side nearly in the ditch on the east side of the road and 'approximately one foot of his right wheels was on the edge of the pavement.' He could see the Smith vehicle for a quarter mile. It was daylight and he had no trouble seeing the vehicle or the people around it. He operated his automobile with its left side approximately 3 feet west of the center line. He judged Raytown Road to be 24 feet wide.
Plaintiff first saw the Leap automobile when 'I was approximately 25 feet south of the stalled vehicle, * * * ten to fifteen feet' north of the intersection. The Leap car was at the crest of the hill Plaintiff judged Mr. Leap's speed at 55 to 60 miles per hour at the time of the described movements. Plaintiff was then going about 20 to 25 miles per hour ('I sped up after I went past the stalled vehicle') and, upon seeing defendant, 'I let up on the gas and started to pull over.' He traveled approximately 75 feet all on his side of the road after first seeing Mr. Leap. As the Leap car came down the hill, plaintiff Approximately seven feet of his lane were open. 'I was stopped or nearly stopped' at the time of collision, 'zero to two miles an hour.' He didn't pull off further because he 'didn't want to run into the ditch.' According to plaintiff, there was no reason why the Leap car could not have passed to plaintiff's left and gone on down the highway. As the Leap car came down the hill 'it was on my side of the road two or three times, back and forth,' and it finally came over to plaintiff's side of the road and into collision going about 40 miles per hour, striking its left front against the Chevrolet 'at the driver's door and clear on to the back.' It was then about 5:30 p.m. Plaintiff judged this collision to be approximately 100 feet south of Mr. Leap's second collision with the Smith automobile. He talked at the scene with Mr. Leap, who said, 'I suppose I was going too fast.' Plaintiff had no difficulty moving his automobile up the hill after the collision.
Upon cross-examination plaintiff was confronted with deposition testimony of speed at 35 to 40 miles per hour, but confirmed his maximum speed at 25 to 30 miles per hour and, in respect to movements of the Leap automobile and points of collision, testified:
'
* * *
Plaintiff was in the act of stopping, or stopped, at the time of collision, but did not apply his brakes hard until about 30 feet from the point of collision. As to speed and distance, the cross-examination continued:
Upon redirect examination plaintiff further described Mr. Leap's movements as having crossed the center line as far as three or four feet three or four times, but never blocking plaintiff's lane of traffic. He testified further:
'
Plaintiff's wife, Charlene Burks, described conditions existing at the time of the accident as 'cold and there was spots of ice on the road.' According to her, the accident occurred 'around 5:30, * * * between five and five-thirty.' She judged her husband's speed at 25 miles per hour prior to any change of speed near the collision; 'he began to slow down as he approached the (Smith) car.' Her...
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