Cluck v. Snodgrass, No. 8277

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: HOGAN; RUARK, P. J., and STONE
• Citation: 381 S.W.2d 544
• Parties: Howard T. CLUCK, Plaintiff-Respondent, v. Edward SNODGRASS, Defendant, and Ruth E. Wiley, Defendant-Appellant.
• Decision Date: 20 August 1964
• Docket Number: No. 8277

Page 544

381 S.W.2d 544 Howard T. CLUCK, Plaintiff-Respondent,
v.
Edward SNODGRASS, Defendant, and Ruth E. Wiley, Defendant-Appellant. No. 8277. Springfield Court of Appeals, Missouri. Aug. 20, 1964.

Page 545

F. William Joyner, William P. Sanford, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendant-appellant.

William A. R. Dalton, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-respondent.

HOGAN, Judge.

This is an action for damages for personal injuries sustained in a vehicular collision. The jury has returned a verdict for the plaintiff and against both defendants in the amount of $3,250.00. After an unavailing motion for new trial, defendant Ruth E. Wiley has appealed.

The accident in question occurred about 1:00 P.M. on September 27, 1961, on U.S. Highway No. 65, near Highlandville, Missouri.

Page 546

The highway, at the place in question, is a 'winding' bituminous or blacktop road. Generally speaking, it runs north and south, and is so treated by the parties. At the time, a light rain was falling and the pavement was wet. As the appellant is at some pains to point out, the accident involved three vehicles and two collisions. The accident happened on a curve which bears to the left (east) as one is traveling south; defendant Wiley was going south, followed by the plaintiff, and defendant Snodgrass was traveling north. The Snodgrass vehicle collided with Mrs. Wiley's automobile on the curve and then struck the plaintiff's truck. Though the force of the evidence is vigorously disputed, it was the plaintiff's theory that because both Mrs. Wiley and Mr. Snodgrass were driving too near the center of the road, the Snodgrass vehicle sideswiped Mrs. Wiley and caromed or rebounded into the plaintiff's truck.

Plaintiff, a 52-year-old laundry sales driver, testified that on the occasion in question he was working in his 'south territory,' which took him to several points south of Springfield, Missouri. He was driving south--toward Highlandville--following Mrs. Wiley, who had passed him a short distance north of the place of the accident. Mr. Cluck, who was traveling alone, was driving what he described as an International 'metro-body step-van' truck, which we take as a vehicle specially adapted for pickup and delivery service. Both Mrs. Wiley and plaintiff were traveling at a fairly constant speed of about 35 to 40 miles an hour, and Mr. Cluck estimated he was following Mrs. Wiley at a distance of 125 to 175 feet. Mr. Cluck testified that the Wiley vehicle was visible to him at all times.

The curve or bend in which the casualty occurred was described by plaintiff as being a 'winding curve * * * a left turn when you are headed south.' When Mrs. Wiley 'went into the curve, she was on her side,' but as she 'got out into the bend of it, she had pulled across the yellow line.' As the plaintiff related the matter, 'when she [Mrs. Wiley] got into the deep part of the curve, here come a car over the hill [Snodgrass]' 'riding the center line, and I thought they were going to hit head-on. * * *' Plaintiff then applied his brakes and turned right onto the shoulder; but defendant Snodgrass' vehicle 'glanced off' Mrs. Wiley's car and 'headed right at' him. Mr. Cluck then attempted to turn further to the right, but the Snodgrass vehicle struck plaintiff's truck, throwing the plaintiff first against a metal towel rack inside his truck, and down into the step-well beside the front door. Mr. Cluck estimated that he was 'up to within about 75 feet of' Mrs. Wiley when the Snodgrass vehicle collided with her.

Mrs. Wiley's testimony in some respects corroborates, or at least is not substantially different from, the plaintiff's. Mrs. Wiley was returning to Branson, some distance south of Highlandville. She was accompanied by her husband. Driving at a speed of about 35 to 40 miles an hour, she proceeded into the curve and observed the Snodgrass car, some 100 feet to the south, 'straddling the double yellow line,' with 'the left side of his car * * * well over the double yellow line.' Mrs. Wiley was, in her words, 'in the center of the right lane.' She then 'instinctively pulled to the right,' but though she turned aside and managed to get her right wheels off the pavement onto the right shoulder, the Snodgrass vehicle struck her. Mrs. Wiley testified that she did not see the second impact or collision. Mrs. Wiley's husband, who was riding with her, corroborated her testimony to the effect that the Wiley vehicle was at all times in its proper lane; Mr. Wiley's testimony was that his wife was 'in the middle of her half of the road.'

Defendant Snodgrass, who had defaulted, and against whom a default judgment was taken, testified in response to plaintiff's subpoena. His recollection of the surrounding circumstances of the accident was generally the same as that of the plaintiff and defendant Wiley, except that he testified that Mrs.

Page 547

Wiley's car was 'just on the center line' when he first saw it and that he was in his proper lane (going north) when he first saw Mrs. Wiley's car. At that time, the Wiley vehicle was 45 to 50 feet away and Mr. Snodgrass stated that the 'front end and back end' of his car collided with Mrs. Wiley's; he then 'scooted on across and bumped into this truck.' Mr. Snodgrass minimized the impact with the Cluck vehicle, stating that his speed was probably 10 miles per hour after the first collision and that he 'just barely hit him [plaintiff] at the door.' After the second collision, Mr. Snodgrass came to a stop on the road within 15 feet.

The plaintiff appears to have sustained no permanent injury, at least according to the medical testimony. However, for a time after the accident, he was unable to perform all the duties required of him without assistance, and for several months after the accident he appears to have suffered pain and soreness in his neck. The record reflects that he had, at trial time, been examined by two admittedly well-qualified physicians, both of whom characterized his injury as a mild to moderate cervical or neck strain, with accompanying pain and inflammation spasm.

Appellant Wiley's first point, which she has argued at length in her brief and before this court, is that the plaintiff failed to establish a direct and proximate causal relationship between her negligence, if any, and the collision of the Snodgrass and Cluck vehicles. Pointing to the fact that the evidence does not show precisely the movements of the Snodgrass vehicle after the first collision, nor the effect of the impact upon Snodgrass or his vehicle, she argues that there is no evidence to show a positive connection between the two collisions.

Granting that the subject of proximate cause is a matter of some complexity, we consider the appellant's argument in this respect to be somewhat overstated. Taken most favorably to the plaintiff, the evidence indicates that he was following Mrs. Wiley south on Highway 65 at a moderate rate of speed as she entered a curve bearing to the left. Snodgrass was approaching from the opposite direction. From the plaintiff's testimony, the jury could have found that as Mrs. Wiley 'got into the bend' of the curve, she 'had pulled across the yellow [median] line,' and that Snodgrass, as he approached from the opposite direction, was 'riding the yellow line,' so that it appeared the two vehicles would collide head on. Snodgrass' testimony was that he was on the 'right hand side' but that Mrs. Wiley was 'just on the yellow line.' Mrs. Wiley testified that she was in her own lane but that Snodgrass was 'straddling the double yellow line' with the left side of his car 'well over' the double yellow line. It is not disputed that the Snodgrass and Wiley vehicles did collide, nor, as we understand the record, is there any indication that the collision was caused by something other than the conduct of one or the other, or both, of the defendants in operating their respective automobiles. We are therefore of the opinion that a jury could infer that either Mr. Snodgrass or Mrs. Wiley, or both of them, were negligent in causing the first collision. Burr v. Singh, 362 Mo. 692, 698-699, 243 S.W.2d 295, 299-300.

At the time of this first collision, the plaintiff testified that he was 'up to within 75 feet' of the Wiley automobile, and it is inferable from Snodgrass' testimony that plaintiff was somewhat closer, possibly within 45 to 50 feet. Plaintiff, describing the collision as a 'sideswipe,' said that after the first impact 'the [Snodgrass] car glanced off Mrs. Wiley's car * * * and it headed right at me.' Snodgrass described the matter in much the same way; he said that the 'front end and back end both' [of his vehicle] struck Mrs. Wiley's car. We cannot agree with appellant's argument that this first impact was insubstantial; Snodgrass testified that when he struck Mrs. Wiley he was going 30 miles an hour, and when he struck Mr. Cluck he was going 'probably 10 miles an hour,' although he 'didn't apply no...