Burrow v. Moyer, 35646

Decision Date11 February 1975
Docket NumberNo. 35646,35646
PartiesWinifred BURROW and William Burrow, Plaintiffs-Respondents, v. Joey Dean MOYER, Defendant-Appellant. . Louis District, Division One
CourtMissouri Court of Appeals

Carter, Brinker & Doyen, Clayton, for defendant-appellant.

Benson Cytron, House Springs, for plaintiffs-respondents.

DOWD, Presiding Judge.

An automobile accident case. Trial court granted plaintiffs a new trial following a jury verdict for defendant. Defendant appeals. We affirm.

On July 28, 1966, at 1:30 p.m., a three car collision occurred in Jefferson County on Highway 30. Plaintiff Winifred Burrow was operating her vehicle in the westbound lane of the two lane highway. Defendant was also in the westbound lane, traveling five or six car lengths behind plaintiffs' car. Both cars were traveling at approximately 30 to 35 miles an hour and there was testimony that it was raining heavily and that the highway was wet.

As plaintiffs' car was rounding a curve in the road, a third car traveling east, driven by Cleon Lucia, crossed the center line and struck plaintiffs' car in a nearly head-on collision. At this time, defendant applied his brakes and tried to avoid the accident. Defendant's car skidded into plaintiffs' car, causing some damage. Defendant moved for a directed verdict, both at the close of plaintiffs' evidence and at the close of all the evidence. Both motions were denied.

Plaintiffs submitted their case to the jury in two counts: count one, damages for Winifred Burrow for her physical injuries, and count two, medical expenses and loss of consortium by her husband, William Burrow. The theory of recovery submitted to the jury was defendant's failure to stop after danger of an accident became apparent. The jury returned a verdict for defendant on both counts. Thereafter, the trial court granted plaintiffs' motion for a new trial.

The ground upon which the trial court granted plaintiffs' motion for a new trial was that Instruction No. 4 was erroneous. Defendant contends that the trial court erred in holding the instruction erroneous and that the jury's verdict should be reinstated. Defendant also argues on appeal that the trial court erred in overruling his motions for directed verdict for the reason that plaintiffs failed to make a submissible case. We take the points in reverse order.

In deciding whether plaintiffs have made a submissible case, this court must consider only the evidence favorable to plaintiffs; all contrary evidence is disregarded. As such, the evidence shows that defendant was traveling 25 m.p.h. immediately before the accident became apparent; that he was following, at the most, six car lengths behind Mrs. Burrow; that a car length is 20 feet; that when he first saw the Lucia car it was on the wrong side of the road and both the Lucia car and plaintiffs' car were about 15 feet from the point of impact.

Plaintiffs also had a consulting engineer testify as to certain figures he had computed regarding stopping distances: an automobile similar to defendant's assuming that its brakes and tires were in good condition, and assuming that it was raining and the pavement was wet, could be stopped within 75 feet when traveling at 25 m.p.h. Based on defendant's deposition, he was nearly 135 feet from the first collision when he first realized there was going to be an accident. Defendant had stated that his brakes and tires were in good condition and that there was nothing mechanically wrong with his car. Based on this evidence, the jury could have found that defendant had ample time to stop his auto before striking the plaintiffs' auto.

Defendant argues that plaintiffs' expert testimony should be disregarded. He bases this contention upon his allegation that the accident had occurred directly in defendant's path; that this was a three car accident involving two separate accidents; that both plaintiffs' car and the Lucia car were demolished; that this first accident completely blocked defendant's lane of travel; that defendant skidded on the wet pavement; and, that the available distance to stop was questionable, since the final position of the cars was uncertain. 1

Assuming, without deciding, that the expert did not consider these factors, we fail to agree with defendant's assertion that the expert testimony had to be disregarded. The expert was testifying about stopping distances. In making his calculations, he considered the composition of the pavement, the curve of the road, the condition of defendant's tires and brakes, the defendant's reaction time, the make of defendant's car and the rain. The factors urged by defendant have nothing to do with how quickly a car can stop. Whether a prior accident has occurred does not affect how long it takes to stop. The expert did nit make any conclusions as to whether defendant could have avoided plaintiffs' car; that decision was for the jury. Also, the position of plaintiffs' car following the first accident goes to the distance available for stopping, and not stopping ability. The testimony by the expert here was properly admissible in determining if a submissible case had been made.

Defendant's remaining contention on this issue is that there was no showing that plaintiffs' car did not travel backwards after her collision with the Lucia car, thus shortening the distance available for defendant to stop his automobile. On the other hand, there was no evidence that plaintiffs' car had moved at all. When two cars collide head-on at approximately the same speed, it is not unreasonable to assume that plaintiffs' car was not moved backward any great distance. Even assuming that it did, under plaintiffs' best evidence, defendant had 135 feet to stop and needed only 75 feet in which to stop. That still leaves 60 feet of additional room, which could allow for any movement of plaintiffs' car.

In order to make a submissible case, plaintiffs had to show that when defendant saw or should have seen that there was a likelihood of an accident between the other two vehicles, he still would have been able to stop in time to avoid striking plaintiffs' car. McAlister v. Urhahn, 492 S.W.2d 19 (Mo.App.1972). We can not say that under the facts above plaintiffs have not met this burden. Trial court properly held that plaintiffs made a submissible case.

Defendant's second point on appeal is that the trial court erred in granting plaintiffs a new trial. The new trial was granted because Instruction No. 4 was erroneous.

Instruction No. 4 is a converse of plaintiffs' two verdict-directing instructions. They are:

'INSTRUCTION NO. 2

'Your verdict must be for plaintiff Winifred Lee Burrow if you believe:

'First, defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision between the car operated by defendant and the car operated by plaintiff, Winifred Lee Borrow, in time thereafter to have stopped but defendant failed to do so, and

'Second, defendant was thereby negligent, and

'Third, such negligence directly caused or directly contributed to cause injury to plaintiff Winifred Lee Burrow.'

'INSTRUCTION NO. 3

'Your verdict must be for plaintiff William Burrow, if you believe:

'First, defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision between the car operated by defendant and the car operated by plaintiff, Winifred Lee...

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    ...instant case because Mrs. Fritts's consortium claim is derivative of, and dependent upon, her husband's claim. E.g., Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975). The second, and more problematic, threshhold requirement is that the ancillary claim must be asserted "by a defending part......
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    ...Citing various cases in which "expert" testimony concerning stopping distances has been held admissible, e. g., Burrow v. Moyer, 519 S.W.2d 568, 570(3) (Mo.App.1975), and Sullivan v. Hanley, 347 S.W.2d 710, 716(7) (Mo.App.1961), defendant Brewer argues that the expert's testimony should hav......
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