Clemons v. Becker, 44811

• Decision Date: 14 November 1955
• Docket Number: No. 44811,No. 1,44811,1
• Citation: 283 S.W.2d 449
• Parties: James Stanley CLEMONS, Appellant, v. Clifford Lee BECKER, Respondent
• Court: Missouri Supreme Court

Page 449

283 S.W.2d 449

James Stanley CLEMONS, Appellant, v.Clifford Lee BECKER, Respondent.

No. 44811.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1955.

Robert A. McIlrath, Flat River, for appellant.

Dearing & Richeson, Will B. Dearing, Hillsboro, for respondent.

WESTHUES, Judge.

James Stanley Clemons filed suit against Clifford Lee Becker to recover $15,000 in damages for personal injuries alleged to have been sustained as a result of a collision of two automobiles.Plaintiff Clemons charged that Becker's negligence caused the collision and plaintiff's injuries.A trial resulted in a jury verdict for the defendant and from the judgment, plaintiff appealed.

The evidence as to the collision supports the following statement of the case: On the morning of April 1, 1954, plaintiff Clemons and his brother Robert were going to work in a car driven by Robert.While they were going in an easterly direction over Loughborough Road about five miles from Elvins, Missouri, their car, a Plymouth, collided head on with a Buick car being driven westwardly by the defendant Becker.The collision occurred about midway of a curve in the road.The roadway was hard surfaced with 'black top' 18 feet wide.There was no center line marked on the roadway.Plaintiff and his brother Robert testified at the trial.They were both injured and it may be inferred from evidence that neither remembered anything of importance concerning the collision or how it occurred.To illustrate, we quote from Robert's evidence:

'Q.As you entered that curve from the west towards Elvins, coming towards Doe Run, how far could you see?A.Well, I could see up to where the curve cut me off, I don't know.

'Q.Would you say that is a hundred feet or more, Mr. Clemons?I have never been there; I just don't know.Would you say it is a hundred feet?A.Yes, it is a hundred foot from the scene where the accident occurred.

'Q.From where you first entered that curve on the west side of it, coming towards Doe Run, how far could you see toward the east?A.Well, I don't know exactly.I would say a hundred foot or so or better.

'Q.Were you looking straight ahead as you were driving, Mr. Clemons?A.I suppose so.I don't----

'Q.Do you ordinarily do that, look ahead, when you are driving?A.Yes.

'Q.And you never did see Mr. Becker's automobile?A.I never saw his car, no.

'Q.Are you able to tell this jury what the position of this car was right before the accident?A.No.

'Q.I mean by that were you to the right of the center line or do you know where you were?A.I don't know where I was.

'Q.Do you know where Mr. Becker's car was?A.I never saw Mr. Becker's car.'

Plaintiff gave the following evidence as to what he remembered of the occurrence in question:

'Q.Now, you were going through Doe Run and down to Mine LaMotte, is that right?A.Yes, sir.

'Q.Willyou tell just what you did as you were going out there, as much as you remember of it.A.I remember being at the house.I remember getting up--I mean, getting in the car and setting my dinner bucket down between my feet and going out the road, and I remember going out the road there a ways, and I rolled the window down and had to spit.I got a weak stomach.I was kind of sick that morning.I had to spit.That is the last thing I remember.When I woke up, I was back in Elvins going to the hospital in Penberthy's car.'

The defendantClifford Lee Becker was also injured but he testified that he remembered what occurred up to the time immediately before the collision.Note his testimony:

'Q.As you entered that curve, Mr. Becker, can you tell his Honor and lady and gentlemen of the jury what the position of your automobile was on that highway with reference to the center line or the righthand side?A.Well, I was driving, I would say, about a foot-and-a-half of the shoulder and proceeded on around that curve a foot-and-a-half from the shoulder.

'Q.Your testimony is that the right side of your car was about a foot-and-a-half from--A.(Interrupting)A foot-and-a-half from the shoulder of the road, as I entered that curve and proceeded around it.

'Q.Did you remain about a foot-and-a-half from the shoulder as you proceeded around that curve?A.Yes, sir, I held that position, yes, sir.

'Q.Did you see this other vehicle or some part of it coming towards you?A.When I come around the sharp part of that curve, the way my view on the highway, on the road, was, the parking light on the Plymouth on the lefthand fender come into my view.

'Q.Would you say it was directly in front of you?A.I would say directly in front of me, yes, sir.

'Q.What did you do when you saw that, Mr. Becker?A.Applied my brakes immediately.

'Q.And did the crash occur then?A.I suppose.I don't remember.I was knocked unconscious, and I suppose----

'Q.Are you able to help us out and help this jury out as to the position of your car with reference to the righthand side when this object came into your view in front of you?A.I would say I was a foot-and-a-half of the shoulder on the righthand side of the road.

'Q.Youapplied your brakes and it happened?A.That it happened; that is all.'

A State Highway Patrolman testified that when he arrived on the scene (about 6:50 a. m.)he found the two cars locked together head on about the center of the roadway; that the right front wheel of defendant's Buick was 5 feet south of the north edge of the black top roadway, while the right rear wheel was 3 feet 6 inches south thereof; that the left front wheel of the car (Plymouth in which plaintiff was riding was 7 feet south of the north edge of the black top and the left rear wheel was 8 feet south of the north edge.

The above narration contains substantially all of the evidence submitted to the trial jury upon which to base a verdict.As above noted, the jury found for the defendant.

Plaintiff's 'Points and Authorities' are:

'I.There is insufficient evidence to support the verdict.(citing authorities)

'II.An instruction which is broader than the pleadings or the proof is defective.(citing authorities)

'III.The omission of an essential element from an...