Cram v. Eveloff
| Decision Date | 27 April 1942 |
| Docket Number | No. 12185.,12185. |
| Citation | 127 F.2d 486 |
| Parties | CRAM v. EVELOFF. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph W. Finley, of St. Paul, Minn. (Gerhard Bundlie and James E. Kelley, both of St. Paul, Minn., on the brief), for appellant.
Marcy K. Brown, Jr., of Kansas City, Mo. (Tom Gershon, of Kansas City, Mo., and B. D. Grogan, of Mankato, Minn., on the brief), for appellee.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
This was an action brought by appellee as plaintiff to recover damages from appellant on account of personal injuries alleged to have been sustained by her as a result of appellant's negligence in the operation of an automobile. The parties will be referred to as they appeared in the trial court.
Plaintiff's automobile, driven by her seventeen year old son, Philip Eveloff, was proceeding south on United States Highway No. 71, north of Parkville, Missouri. Defendant was driving his automobile in the same direction, ahead of plaintiff's car. Mechanically, each car was in good condition. There were six occupants in plaintiff's car. Philip Eveloff, the driver, his sister, Mary Ann Eveloff, and his brother, Bernard Eveloff, occupied the front seat. The rear seat was occupied by plaintiff, her daughter Sylvia Eveloff, and her sister Helen Agranofsky, the plaintiff being seated between the other two occupants of the back seat. The only occupants of defendant's car were he and his wife.
It was a clear day and the pavement was dry. This highway is paved, the paved portion being about twenty feet in width. There were grassy earth shoulders about fifteen feet in width on either side of the paving. The surface of the paving was somewhat lower than the surface of the shoulder on either side. A black line in the center divided the pavement into two lanes. The collision occurred near the foot of two hills, about 1:30 in the afternoon of December 3, 1939. Both automobiles had passed over and down the hill to the north, and the brow of the hill to the south, toward which the two cars were moving, was about 400 feet from the point of collision. The highway was straight, and there were no obstructions to the view after having gone over the north hill. As defendant came over the brow of the north hill, he observed a smoking car ahead of him, which had been driven off the paving and stopped on the right shoulder of the highway. Defendant drove in the right lane past the smoking car and stopped without warning, and as he did so, plaintiff's car, which was following him at a distance of about 100 feet, crashed into the rear of defendant's car, injuring plaintiff.
At the close of all the evidence, defendant moved for a directed verdict on the grounds that (1) plaintiff had failed to establish any actionable negligence on the part of defendant; (2) plaintiff had failed to establish any causal connection between any alleged negligence on the part of defendant and the happening of the accident; (3) it appeared conclusively that plaintiff was guilty of contributory negligence. The motion was denied and the cause submitted to the jury, which returned a verdict for plaintiff in the sum of $4,500, on which the court entered judgment. Defendant made a motion for judgment notwithstanding the verdict, which motion was denied, and he prosecutes this appeal.
Defendant seeks reversal on substantially the following grounds: (1) Plaintiff failed to establish actionable negligence on the part of defendant; (2) there was no causal connection between defendant's negligence, if any were proved, and the happening of the accident; (3) plaintiff was guilty of contributory negligence; (4) the court erred in refusing to give defendant's requested instructions numbers 2 and 3.
As an appellate court, we do not weigh the evidence, nor substitute our judgment as to inferences that may be drawn therefrom by the jury. All facts which the evidence of the plaintiff reasonably tends to prove must be accepted as established, and plaintiff is entitled to the benefit of all favorable inferences fairly deducible from the facts which the evidence tends to prove. If, when so viewed, the evidence was such that reasonable men might reach different conclusions, the case was one for the jury. Champlin Refining Co. v. Walker, 8 Cir., 113 F.2d 844; Egan Chevrolet Co. v. Bruner, 8 Cir., 102 F.2d 373, 122 A.L.R. 987.
Viewing the evidence in the light most favorable to plaintiff, the jury might have found the pertinent facts substantially as follows: Defendant stopped his car without warning about six to twelve inches from the right side of the pavement. He did not drive off the pavement and out onto the shoulder, though nothing prevented his so doing; in fact, he testified, "It was done later," and, "He was going to before he went back there." When he stopped the car, his wife told him to drive off the pavement, and he, as well as his wife, saw the smoking car pull off the pavement onto the shoulder. Both cars were traveling at substantially the same rate of speed, about 35 to 45 miles per hour, and had been moving for some distance at practically the same rate of speed. As the cars came down the hill, they were about 100 feet apart. At the point where the collision occurred, the grade was upward. Philip Eveloff, driving plaintiff's car, was looking straight down the highway when he suddenly noticed that the distance between the two cars was shortening, but by the time he realized this and put the brakes on his own car, the cars were only about 40 feet apart. Defendant's car came to a very sudden stop, and he gave no warning. The back of his car was muddy so that, if the rear lights gave any warning, it could not be seen. Plaintiff's car crashed into the rear end of defendant's car. Philip Eveloff testified that he could not turn out because he did not start in time; that he was trying to stop and get around defendant's car, and turned his wheel to the left to avoid hitting it but that he did not have time nor opportunity to turn to the left, though he tried to do so. Articles of bedding in the back of defendant's car obstructed his view to the rear by covering about four inches of the rear vision window.
Section 7777, R.S.Mo.1929, Mo.R.S.A. § 8385, provides:
To allow a motor vehicle to stand on the traveled portion of a highway is negligence, unless it affirmatively appears that it was necessary to do so. Smith v. Producers Cold Storage Co., Mo.App., 128 S.W. 2d 299. Defendant could have driven his car off the pavement and onto the shoulder on the right side. The courts of Missouri also hold that the sudden stopping of a forward car without warning to the driver of the following car is negligence. Ritz v. Cousins Lumber Co., 227 Mo.App. 1167, 59 S.W.2d 1072; Setzer v. Ulrich, Mo.App., 90 S.W.2d 154. Subdivisions (k) (l) of Section 7777, Revised Statutes of Missouri, Mo.R. S.A. § 8385(k) (l), requires that a signal with the hand and arm indicating an intention to turn or stop, or to slacken the speed of the forward car shall be given by the driver. Here, the defendant, without warning and without necessity, suddenly stopped his car on the paving, knowing that plaintiff's car was following him at a distance of about 100 feet. From these facts and circumstances, the jury was warranted in finding that the defendant was guilty of negligence. We think, too, that the evidence was such as to show a causal connection between defendant's negligence and the injury to plaintiff. That was clearly a question of fact for the jury's decision. Anderson v. Asphalt Distributing Co., Mo.Sup., 55 S.W. 2d 688, 86 A.L.R. 1033; Gillis v. Singer, Mo. App., 86 S.W.2d 352; Setzer v. Ulrich, supra.
It is next urged that plaintiff was guilty of such contributory negligence as to preclude recovery. Her seventeen year old son was driving her car on her authority and by her direction. Negligence, if any, was...
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