Collins v. Nelson

• Decision Date: 15 January 1965
• Docket Number: No. 8290,8290
• Citation: 410 S.W.2d 570
• Parties: Linda COLLINS, by her duly appointed guardian and curator, Ethel Collins, Plaintiff-Respondent, v. Earl NELSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 570

410 S.W.2d 570

Linda COLLINS, by her duly appointed guardian and curator Ethel Collins, Plaintiff-Respondent, v. Earl NELSON, Defendant-Appellant.

No. 8290.

Springfield Court of Appeals, Missouri.

Jan. 15, 1965.

Modified on Court's Own Motion; Rehearing or Transfer Denied

Jan. 15, 1965.

Application to Transfer Denied March 8, 1965.

Claude T. Wood, Richland, George M. Lentz, Cohn & Lentz, Waynesville, for defendant-appellant.

Jean Paul Bradshaw, Warren S. Stafford, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiff-respondent.

HOGAN, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff while she was riding as a guest passenger in an automobile being driven by the defendant. The accident which gave rise to this action occurred shortly after 7:30 P.M., September 6, 1958, on Highway 133 near Crocker, Missouri, when the automobile in which the plaintiff and her companions were riding left the highway and struck a utility pole. A jury found for the plaintiff and assessed her damages at $10,000. The defendant has appealed.

Late in the afternoon on the day in question, the plaintiff, who was then a high school sophomore, 14 years old, met several of her schoolmates at a drug store in Crocker. In the group were the defendant Earl Nelson, Virgil McMurty and Shirley Starnes. Virgil's age is not shown and he did not testify at the trial, but Earl and Shirley appear to have been 16 (Earl testified that he was 21 at trial time), and all the members of the group appear to have been attending high school at Crocker. After some discussion, the youngsters decided to attend a movie at Dixon, Missouri, a short distance northeast of Crocker.

With her parents' permission, Shirley had driven the family automobile 'uptown,' and she asked Earl, with whom she was then 'going steady,' to drive. About 7:00 or 7:30 P.M., the group left the parking lot at Crocker, with Earl and Shirley in the front seat and the plaintiff and Virgil in the rear. It was either dark or 'getting dark' at the time.

The accident occurred after the group had traveled north on Highway 17 to its junction with Highway 133, and then some four miles east on 133 toward Dixon. At the point in question, Highway 133is an east and west blacktop or bituminous highway, some 20 feet wide, and is straight with a slight downgrade to the east. The defendant testified that just before the accident happened he was proceeding east about 50 miles per hour, with his headlights on and his range of vision ahead clear for some one-half mile. There was no traffic, either approaching or following, and no obstruction to his view ahead. Earl stated that he had driven this particular automobile 'two or three times' before, and that he knew how to steer and maneuver it. There is no suggestion that the automobile was mechanically defective, and both Shirley and Linda were of the opinion that Earl was driving carefully before the accident.

The parties sharply dispute whether the evidence shows the immediate and actual cause of the accident; however that may be, the record shows that the automobile left the roadway and went into the ditch on the left or north side of the road. As it came out of the ditch, the left front door came open and Earl fell from the car onto the highway. The automobile then traveled some 400 to 500 feet further to the east, struck a utility pole on the right or south side of the highway, and came to rest. As a result of this collision with the utility pole, the plaintiff sustained severe and disfiguring injuries. Other facts will be noted in the course of the opinion.

The first point for discussion is the defendant's contention that the plaintiff did not make out a submissible case. The plaintiff relied upon the res ipsa loquitur doctrine and submitted her case to the jury upon that theory. We do not understand the defendant to contend generally that the doctrine of res ipsa loquitur cannot be applied to casualties of this character and nature; all he says, if we have understood correctly, is that since the whole evidence permits an inference that the legal cause of the accident was something other than negligence of the defendant, the plaintiff was not entitled to submit her case under the doctrine of res ipsa loquitur.

In our view, the evidence concerning the actual and immediate cause of the accident is indefinite almost to the point of being obscure. The defendant testified that immediately before the automobile went in the ditch on the left or north side of the road, he was driving east at a speed well within the statutory limit. There was no other traffic on the highway, and his vision ahead was unobstructed for approximately one-half mile. He had driven this automobile two or three times before and understood, he said, how to steer and maneuver it. Being asked if he was experiencing any difficulty with the automobile, the defendant answered unequivocally, 'No.' No contention is presented that the automobile was mechanically defective.

From this point, the sequence of events becomes indistinct. The defendant lays great stress on the evidence indicating that shortly before the automobile left the road the windshield became blurred because it was dusty and a light shower, falling upon the dust, temporarily obscured the defendant's vision. His trial theory, which he sought unsuccessfully to submit, was that the accident happened because his vision had suddenly become so obscured, and the automobile left the road while he was attempting to locate the control for the windshield wipers. The defendant's recollection of the incident was that '* * * it just started sprinkling there and had just messed up the windshield to where it was--it wasn't clear,' and '* * * I'd asked about the windshield wipers and--and I don't know whether they were ever turned on or not, and the next thing I knew I was in the ditch.' Earl also stated that '* * * I remember pulling it out of the ditch. And just as I came out of the ditch the door came open and I was in the middle of the highway. I'd fell out.' Asked by counsel 'how far back from' the accident it had started sprinkling, however, the defendant answered he was 'not for sure,' and he seems to have agreed that some interval elapsed between the time the shower began and the accident occurred. The defendant also stated, 'I don't know,' when he was asked if he had ever applied his brakes; and when he was questioned as to whether he remembered leaving the road and going into the ditch on the left side, he answered, 'No.' The defendant 'couldn't say for sure' whether he had ever lifted his foot from the accelerator from the time he started down the slope on which the accident occurred until he fell out of the car.

The other witnesses' account of the accident, we may say, were no more definite. The plaintiff's recollection was that '* * * I was talking to Virgil, and first thing I knew we went in the ditch on the left side of the road. And * * * we came back up on the road and went across the road and in the ditch on the right-hand side and hit an electric pole.' Her description of the impact with the pole was that 'I just flew up and hit the windshield and flew back to the back seat.' Shirley's account of the accident was that '* * * we were just going down the road and he (Earl) asked--started raining a little bit. He asked me where the windshield wipers was, and I remember showing him, trying to tell him where they was at. And we went off in that ditch.' Shirley didn't know how long an interval had elapsed between the shower and the time they went in the ditch; she said that '* * * it (the automobile) come back out and he (Earl) wasn't in there, and that's all I remember.'

We cannot agree with the defendant that no submissible case was made. It is too well established to be seriously disputed that loss of control or failure to control the movement of an automobile so that it leaves the highway and causes injury or damage ordinarily permits an inference of negligence on the part of the driver, Lindsey v. Williams, Mo., 260 S.W.2d 472, 474--475(1), cert. den. Williams v. Lindsey, 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Harke v. Haase, 335 Mo. 1104, 1108--1109, 75 S.W.2d 1001, 1002--1003(1) (2, 3); Wells v. Asher, Mo.App., 286 S.W.2d 567, 568(1); and so long as the plaintiff's evidence does not itself clearly show the cause of the accident, or if the true cause is left in doubt, he is not deprived of the right to invoke the doctrine of res ipsa loquitur. Wells v. Asher, supra, 286 S.W.2d at 569--570(2). Broadly speaking, the plaintiffs' evidence in this case tends to prove that while the defendant was in control of the automobile, driving along a straight and unobstructed highway at a moderate rate of speed, he not only lost control of the vehicle so that it left the highway, but fell completely out of the automobile. This is precisely the kind of fact situation to which the doctrine of res ipsa loquitur is ordinarily applied, Lindsey v. Williams, supra, 260 S.W.2d at 474--475(1); Tabler v. Perry, 337 Mo. 154, 165--167, 85 S.W.2d 471, 476--478(10) (11, 12); Vesper v. Ashton, 233 Mo.App. 204, 208, 118 S.W.2d 84, 87(1, 2); and, as the plaintiff carefully points out, making a prima facie case under the res ipsa loquitur doctrine creates a factual inference of negligence--not a mere presumption. The plaintiff's prima facie showing did not disappear, as would a presumption, simply because the defendant offered evidence in explanation of the casualty, Clark v. Linwood Hotel, 365 Mo. 982, 986, 291 S.W.2d 102, 105(3); Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 37--38, 142 S.W.2d 455, 460(9, 10), 129 A.L.R. 829 and we therefore hold that the plaintiff made a submissible case under the res ipsa loquitur doctrine.

The defendant argues, with great conviction, that the trial court erred in refusing his Instruction D--B. This instruction, after...