Cope v. Thompson

• Decision Date: 12 March 1976
• Docket Number: No. 9289,9289
• Citation: 534 S.W.2d 641
• Parties: Nola COPE, Plaintiff-Appellant, v. Jimmy THOMPSON, a Minor, by Harry Thompson, his father and guardian ad litem, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 641

534 S.W.2d 641

Nola COPE, Plaintiff-Appellant, v. Jimmy THOMPSON, a Minor, by Harry Thompson, his father and guardian ad litem, Defendant-Respondent.

No. 9289.

Missouri Court of Appeals, Springfield District.

March 12, 1976.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 25, 1976.

Application to Transfer Denied April 14, 1976.

Donald E. Bonacker, Springfield, for plaintiff-appellant.

Schroff, Keeter & Glass, Bob J. Keeter, Robert W. Schroff, Springfield, for defendant-respondent.

STONE, Judge.

A school holiday on November 27, 1970, became a Black Friday for high school student Jimmy Thompson, defendant herein, and more tragically so for Elmer Cope and his family, when a 1970 Plymouth Roadrunner driven by defendant, the sole occupant thereof, crashed into the left side of a 1965 Ford two-door automobile resulting in the death of Mr. Cope, the sole occupant of that vehicle, before any third person reached the scene. In this jury-tried action, plaintiff Nola Cope, the widow, sought damages of $50,000 for the wrongful death of her husband. Cast by an adverse judgment entered on a jury verdict for defendant Thompson, plaintiff appeals.

Defendant, seventeen years of age at the time of accident, lived in his parental home on Route E in Wright County, Missouri. His regular activities included milking the cows on the home place and attending high school at Mountain Grove. He had been driving about three months prior to the date of accident. During that period, he frequently operated his parents' Cadillac or the 1970 Plymouth Roadrunner owned by an older married brother, Larry, who also resided in the parental home. The Plymouth was equipped with 'oversized' Good-year G--70 tires, which had been 'taken off' another brother's 'new car.' The 'steering' and the 'brakes' on the Plymouth were 'in good condition,' and it was also 'in good mechanical condition.' Using his brother Larry's Plymouth on the fateful morning of accident, defendant first called on a girl he 'was going with . . . at the time' and then visited 'a little bit' at the home of his grandmother, after which he headed for his home eastbound on Route E. It was then between 11:30 A.M. and noon on a cloudy but 'dry' day.

At and near the point of collision, Route E was an east-west highway with a 20-foot bituminous blacktop roadway, the center of which was not lined or otherwise marked. There was no useful shoulder on either side, and approximately 'a foot' from each edge of the blacktop, the ground sloped downward into a ditch 'about two foot deep.' The collision occurred on the blacktop roadway 'at the mouth' of a one-lane dirt driveway into a field on the south side of the highway. This field was a part of the farm on which Mr. and Mrs. Cope had resided for many years prior to the accident, and the hay, which he fed to his cows, was stacked there. From postaccident observation of the damaged Cope automobile and the numerous fragments of hay on that vehicle and scattered around the point of collision, plaintiff's witness Rippee, a neighbor who heard the crash and was the first person to reach the scene, opined (without objection) that Mr. Cope had 'come out of the driveway' and 'had started to feed' his cows at another location.

Route E was straight for a distance of about a half mile west of the point of collision, the direction from which defendant Thompson approached. An eastbound driver such as defendant entering the west end of this half-mile stretch descended into a 'valley or swale area' and then ascended an incline to the gently-rolling crest, from which the highway sloped gradually downward to the east for a considerable distance. The field driveway used by Mr. Cope entered the south side of Route E on this downgrade. Although the topography of that area thus limited Mr. Cope's sight distance to the west and defendant's sight distance to the east, plaintiff's professional photographer Craig testified that, at a point determined by measurement to have been 270 feet west of the field driveway, an eastbound driver such as defendant could have seen 'approximately six inches' of the top of an automobile at that driveway, and defendant's photographic witness Comstock 'stepped off' 210 feet as the intervening distance at which the top of an eastbound automobile such as defendant's Plymouth approaching the hillcrest would have become visible initially to the driver of an automobile, such as the Cope Ford, in the center of Route E opposite the mouth of the field driveway.

When asked upon trial to state the speed at which he had been traveling as he 'approached the Cope home (and) the area where the mishap occurred,' defendant Thompson, the sole surviving eyewitness to the accident, recollected that 'I said in my deposition the other day (three days prior to trial) I was going 50 to 55' miles per hour--an answer for which his counsel shortly developed defendant's explanation that when he last 'glanced at my speedometer maybe two or three miles back . . . I was going around 50 or 55' and the subsequent elaboration that 'I think as I come down that slope before I hit that dip in the road (the valley or swale area) where you come upon the crest I might have been going up to 59, 60, I don't think I was going over 60 miles an hour.'

Whatever his speed then may have been, defendant declared that, when he first saw the Cope automobile (and that was, so he avouched, as soon as it became visible to an eastbound driver), it 'was stopped' headed north, crosswise of, 'straight across,' and entirely on, the blacktop roadway with the back bumper of the automobile 'a foot or two' north of the south edge of the blacktop at the mouth of the field driveway, and with the front bumper a similar distance south of the north edge of the blacktop. In short, defendant declared the Cope automobile 'was parked in the road in my way there' and 'he (Mr. Cope) didn't seem to look at me or nothing.' Immediately reacting to the situation confronting him, he 'hit the brakes' and locked all four wheels of the Plymouth so that they laid down four distinct 'lines or skidmarks' 120 feet in length. Generally speaking, all of these skidmarks ran (so Trooper Watson said) 'parallel to the road.' More specifically, Archie Lawson, plaintiff Nola Cope's brother who, with plaintiff's son, Don Cope, made measurements at the scene of the accident, stated that the skidmark nearest to the south edge of the blacktop roadway (the right side for defendant's eastbound Plymouth) began approximately 4 feet 7 inches from the south edge and, over the 120-foot length of that skidmark to the point of accident, gradually veered about three feet to the left or to the north.

The numerous pictorial exhibits clearly indicate that, with defendant's Plymouth thus angling slightly to the left or to the north, the initial impact was between the right front portion of the eastbound Plymouth and the left door of the Cope Ford, instantaneously followed by violent damaging contact between the entire front end of the Plymouth and that portion of the left side of the Ford in Front of the point of initial impact. As a result of the collision, defendant's Plymouth spun around counter-clockwise 'one complete turn (revolution)' and 'another half-turn' and came to rest on the dry blacktop roadway headed in a southwesterly direction with its left front wheel near the south edge of, but still on, the blacktop. The impact of the collision catapulted the Cope Ford toward the northeast, and it came to rest headed in that direction on the north side of Route E with the front end of the Ford against the wire fence on that side of the highway and the right rear 'approximately 25 feet' from the north edge of the blacktop roadway (so plaintiff's witness Short testified) or 21 feet from the right rear of defendant's Plymouth (according to Trooper Watson).

In addition to the damage to the Cope Ford two-door clearly visible in the photograph exhibits, postcollision examination of that vehicle by witness Don Cope, then a route salesman for a Springfield bakery and formerly a transport driver, disclosed that the left door of the Ford tudor was 'caved in . . . approximately 30 inches,' the left side of the frame was broken about the center of that door, the transmission was 'busted,' and the motor support was 'knocked loose.' Plaintiff's neighbor Rippee, who heard the crash and reached the scene within two or three minutes, found Elmer Cope dead in the front seat of his Ford. The death certificate discloses that he sustained 'severe lacerations to left side of head & neck' and that the 'immediate cause of death' was a 'fractured neck.'

On this appeal, five points have been properly presented in plaintiff-appellant's brief and ably argued by counsel for both parties. Additionally, defendant-respondent insists there was insufficient evidence to support either of the assignments of negligence disjunctively submitted in plaintiff's verdict-directing instruction 3, i.e., that defendant drove at an excessive speed or drove on the wrong side of the road. We initially consider this contention because, if plaintiff did not make a submissible case, trial errors would become wholly immaterial. Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 258(1) (Mo.1973); Osborn v. McBride, 400 S.W.2d 185, 188(1) (Mo.1966); Walker v. Niemeyer, 386 S.W.2d 87, 92(3) (Mo.1965); Howard v. Johnoff Restaurant Co., 312 S.W.2d 55, 56(1) (Mo.1958).

Of submissibility on excessive speed. In this inquiry, we view the evidence in the light most favorable to plaintiff, accept it as true if it is not entirely unreasonable or opposed to physical law, accord her the benefit of all reasonable inferences arising from the evidence, reject all inferences unfavorable to her, and disregard defendant's evidence except as it may aid plaintiff's case. Todd v. Watson, 501 S.W.2d 48, 50 (Mo.1973); Forbis v. Associated Wholesale Grocers, Inc., 513...