Buzbee v. Greyhound Lines, Inc.

• Decision Date: 10 May 1971
• Docket Number: No. 1,No. 54876,54876,1
• Citation: 467 S.W.2d 933
• Parties: Jessie BUZBEE, Appellant-Respondent, v. GREYHOUND LINES, INC., a Corporation, Respondent, and Gerald Wayne Ashby, Administrator of the Estate of Patricia Ashby, Deceased, Appellant
• Court: Missouri Supreme Court

Page 933

467 S.W.2d 933

Jessie BUZBEE, Appellant-Respondent, v. GREYHOUND LINES, INC., a Corporation, Respondent and Gerald Wayne Ashby, Administrator of the Estate of Patricia Ashby, Deceased, Appellant.

No. 54876.

Supreme Court of Missouri, Division No. 1.

May 10, 1971.

John W. Reid, II, of Schnapp, Graham & Reid, Fredericktown, for plaintiff-respondent-appellant, Jessie Buzbee.

George J. Miller, Miller & Buechner, St. Louis, David L. Colson, Farmington, for defendant-respondent Greyhound Lines, Inc.

Warren Grauel, St. Louis, of counsel.

HYDE, Special Commissioner.

Action for $27,000 damages for personal injuries sustained in a collision between an automobile and a bus in which plaintiff was a passenger. Mrs. Ashby, the driver of the automobile, was killed. Plaintiff had verdict and judgment for $20,000 against the administrator of her estate. Verdict and judgment was for defendant Greyhound Lines, Inc. The defendant administrator has appealed from the judgment against him and plaintiff has appealed from the judgment for Greyhound. We affirm.

The collision occurred about 12:55 P.M. on U.S. Highway 67 March 1, 1967 about 1.6 miles north of Farmington, Missouri. The weather was clear and the pavement dry. Highway 67 had two 24-foot concrete pavements divided by a 36-foot grassy median strip. It was 40 feet between the pavements including shoulders. There was a ten-foot gravel shoulder beyond each of the paved double lanes. The bus was going south in the right-hand west southbound lane at 60 miles per hour. Mrs. Ashby was driving north in a 1963 Thunderbird car. She came around a curve and apparently lost control of her car, which first went on to the right-hand east shoulder, then crossed the northbound pavement and on to the grassy median strip. The bus driver first noticed the car when it started to leave the west (inside) northbound lane at a 45-degree angle, going on to the grassy median strip. He estimated its speed at that time as 90 to 100 miles per hour. (Plaintiff and another passenger testified to seeing it sooner.) The bus driver said he applied his brakes and swerved to the right shoulder. He said the bus traveled about 180 feet farther before it was struck and its speed had been reduced to 30 miles per hour. He said the bus left tire marks, estimated as 100 to 120 feet. A state highway patrolman who came after the collision did not see these marks. The bus driver estimated the speed of the car when it struck the bus at 60 to 70 miles per hour. Plaintiff, sitting in the front seat of the bus, was thrown through the front windshield of the bus, made unconscious, and her leg was pinned under the bus until a wrecker arrived to free her. The bus driver said when he first saw the Ashby car it was leaving the inside northbound lane half on and half off the northbound pavement. He said there was a ditch in the center of the median and that when the car hit the ditch it turned and came straight across in front of the bus. He said it was in the air with the wheels about a foot off the ground after it struck the ditch. He said the car 'spun around, changed ends and came toward the bus sideways.'

Plaintiff's submission against the administrator was on excessive speed. Defendant administrator contends excessive speed is not supported by the evidence as an ultimate fact of negligence which caused the collision and that there was no evidence to support a finding that Mrs. Ashby was driving at an excessive rate of speed, claiming the bus driver's evidence is unbelievable. It is argued that because the Ashby car moved laterally across the median strip, instead of continuing on the pavement in a straight line, there must have been an intervening force that caused the car to go into the path of the bus. Newton's axioms or laws of motion are cited to the effect that every body persists in a state of uniform motion in a straight line until compelled by an intervening force to turn. It is said the intervening force might have been some negligent act of Mrs. Ashby or a tire blowout but it was not speed. (A blowout would be wholly speculative under the evidence in this case.) However, administrator recognizes that although speed alone could not have caused the car to travel into the path of the bus, speed could have prevented Mrs. Ashby from avoiding the collision and that the proper test of speed as the proximate cause is whether or not it prevents the driver from avoiding collision, see Miller v. Fink, Mo.App., 387 S.W.2d 173; Bauman v. Conrad, Mo.App., 342 S.W.2d 284; Osborn v. McBride, Mo.Sup., 400 S.W.2d 185; see also Davis v. Werremeyer, Mo.Sup., 377 S.W.2d 319; Hinds v. Kircher, Mo.Sup., 379 S.W.2d 607.

There was evidence to show that after Mrs. Ashby came around the curve her car went on to the right (northbound) gravel shoulder leaving tire marks for 120 feet, then angled 90 feet across both northbound lanes on to the grass median, went 90 feet across the median to the southbound lanes and angled across them for 60 feet before striking the front of the bus which was partly on the pavement and partly on the southbound gravel shoulder. Administrator questions the qualifications of the bus driver to estimate the speed of the Ashby car, arguing inconsistencies in his testimony as to distances between the bus and the car when he first saw it. However, the bus driver had been driving busses on highways for 26 years and it was estimated he had driven about two million miles as a bus driver, observing automobile traffic. We hold that his testimony as to the speed of the Ashby car was properly received, and its credibility was for the jury to determine. Our view is that the evidence is sufficient to show excessive speed preventing Mrs. Ashby from avoiding the collision; and that plaintiff made a submissible case on this issue.

Defendant administrator claims error in the cross-examination by plaintiff of Greyhound's expert witness Bilhorn who made tests to determine the stopping distance of a bus of the same model as the one in the collision. The bus driver had made a signed written report, offered in evidence by plaintiff and used to cross-examine Bilhorn. It contained the statement: 'This car was traveling at a great rate of speed. I started applying my brakes.' Plaintiff read this statement and asked Bilhorn: 'Did you use that in your computation?' The administrator's objection that this was a conclusion of the bus driver was overruled and Bilhorn answered: 'No.' Another statement, from a diagram on the bus driver's report, was read: 'Vehicle No. 2 (Ashby car) went onto the shoulder of the northbound lane, evidently due to excessive rate of speed.' The administrator's objection was 'Object to what, what that report shows as to defendant Ashby.' Although administrator's objection did not so specify, apparently it was also directed to the statement about speed. Plaintiff's counsel offered to withdraw this reference to speed and have the jury instructed to disregard it but the court overruled the objection. As to such a general reference to speed, we said in State ex rel. Shaw Transfer Co. v. Trimble, Mo.Sup., 250 S.W. 384, 387, of a plaintiff's testimony: 'Her testimony that the cab was 'going very fast' was clearly admissible under the ruling in State v. Watson, 216 Mo. 420, 115 S.W. 1011.' See also annotation 92 A.L.R.2d 1393, citing many cases holding such testimony admissible and others rejecting it as too indefinite. Since the bus driver had testified to a definite speed of the Ashby car from the time he saw it until the collision, we do not consider these general references to speed in his report to be prejudicial error.

As to the diagram showing the Ashby car went on to the east shoulder of the northbound lane, it is true that the bus driver said he did not see it there. However, after the collision, he did go over to the east shoulder and found skid marks there. Furthermore, administrator's own evidence showed the Ashby car went on to the east shoulder of the northbound lane. Administrator's witness, Ransom, representing his insurance company, went to the scene of the collision (an hour to an hour and a half afterwards) took photographs and made measurements. He said he found 120 feet of tire...