Deskin v. Brewer, Nos. 10038

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM; FLANIGAN; TITUS, J., dissents and joins in separate dissenting opinion of HOGAN; HOGAN
• Citation: 590 S.W.2d 392
• Parties: Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents, v. Susan Dee BREWER, Defendant-Appellant, and Jeanne Y. Elayer, a Minor, Defendant. Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents, v. Susan Dee BREWER, Defendant, and Jeanne Y. Elayer, a Minor, By and Through Her Next Friend, Kenneth Elayer, Defendant-Appellant.
• Decision Date: 25 October 1979
• Docket Number: 10039,Nos. 10038

Page 392

590 S.W.2d 392 Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents,
v.
Susan Dee BREWER, Defendant-Appellant,
and
Jeanne Y. Elayer, a Minor, Defendant.
Laney M. DESKIN and Howard A. Deskin, Plaintiffs-Respondents,
v.
Susan Dee BREWER, Defendant,
and
Jeanne Y. Elayer, a Minor, By and Through Her Next Friend,
Kenneth Elayer, Defendant-Appellant. Nos. 10038, 10039. Missouri Court of Appeals, Southern District, En Banc. Oct. 25, 1979.
Rehearing Denied Nov. 19, 1979.

Page 395

Harold J. Fisher, David W. Ansley, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-appellant Susan Dee Brewer.

Gerald H. Fowther, C. Ronald Baird, Lowther, Johnson, Franks & Baird, Springfield, for defendant-appellant Jeanne Y. Elayer.

Jerry L. Reynolds, Donald E. Bonacker, Bonacker & Reynolds, Springfield, for plaintiffs-respondents.

PER CURIAM.

These appeals were argued and submitted in this court at its June 1978 session. An opinion was thereafter prepared and adopted, but was set aside and withdrawn upon plaintiffs' motion for rehearing. After this court was fully constituted, the appeal was again argued and submitted to the whole court. Parts of the divisional opinion have been adopted and are incorporated herein without the use of quotation marks.

The action is an action for damages sustained by plaintiffs as a result of an automobile collision; the collision involved three vehicles. The plaintiffs joined both defendants in a single action. Plaintiffs averred that plaintiff Laney M. Deskin sustained serious personal injuries and plaintiff Howard A. Deskin suffered loss of consortium "as a result of the combined, joint and concurrent negligence" of (both) defendants; plaintiffs had a verdict and judgment against both defendants in the amount of $60,000. The defendants appealed separately; the appeals were consolidated for argument but will be considered separately.

The casualty occurred in the south part of Springfield, Missouri, near the intersection of Campbell Avenue and Broadmoor Street about 8:00 a. m. on January 9, 1973. At the place where the accident happened, Campbell is a five-lane street, a thoroughfare for traffic moving north and south. On the east, there are two lanes for northbound traffic, each about 12 feet wide. There is a middle or median lane, 15 feet wide, from which both north and southbound vehicles may turn left. On the west, there are two southbound lanes, each 12 feet wide. Broadmoor is an east-west street which intersects Campbell at a right angle on the west. As one approaches Campbell on Broadmoor, the street inclines downgrade. Traffic eastbound on Broadmoor is controlled by a stop sign some 4 to 5 feet west of Campbell on the south side of Broadmoor.

Driving conditions at the time of the casualty were execrable. Weather data read to the jury indicated that the average temperature on January 9, 1973, was 9o F;

Page 396

at 6:00 a. m., two hours before the accident, the average ground cover consisted of 5 inches of snow, ice and ice pellets; "traces" of precipitation (described by plaintiff Howard Deskin as "kind of a mist") were noted at 7:00, 8:00, 9:00, 10:00 and 11:00 a. m. More specifically the investigating police officer noted "snow, ice and wet (patches)" on Campbell, and "snow and ice" on Broadmoor. Defendant Elayer found the intersection of Broadmoor and Campbell so slick that she "fell down" upon alighting from her car after the accident. Plaintiff Howard Deskin testified that the driving lanes on Campbell were "icy" with "just (ruts) running down where the tires (had been over the surface)"; moreover, "(T)here was humps . . . in the center (between the ruts) . . . there was a hump of (snow and ice) in between (the ruts)." Plaintiffs' Exhibits 7 and 10, which are 16- by 20-inch photographs of the approximate point of collision, show areas of snow, ice and icy glaze near the intersection of Campbell and Broadmoor.

The record is a welter of approximations, "estimates," "best judgments" and outright contradictions, but the jury might reasonably have found: that immediately prior to the casualty, plaintiff Laney Deskin was driving north on Campbell in the easternmost northbound ("outside" or "curb") lane, going "about twenty-five, thirty miles an hour." Plaintiff Laney suffered retrograde amnesia as one of the consequences of the accident; although she "wish(ed) (she) could" remember, Laney's recollection extended only to the time she was passing the "Carriage House." The "Carriage House" is a retail furniture store located to the east of Campbell, "3 to 4 blocks" south, as Laney recalled, of the approximate point of impact. According to the "best judgment" of another witness the store is approximately 600 feet south of the intersection of Campbell and Broadmoor. Laney was following two vehicles behind a white truck; she remembered looking at her rear view mirror to see if it was safe to pass, but that was the extent of her recall.

Defendant Susan Dee Brewer was driving south on Campbell in the west curb lane. Defendant Brewer testified she was going 20 to 25 miles per hour, and the jury could reasonably have found she was driving faster. Defendant Elayer, in the meantime, was approaching the intersection of Campbell and Broadmoor from the west. Defendant Brewer saw Elayer, sliding east toward the intersection at a time when she, Brewer, was about 50 feet north of the intersection. The Elayer car was sliding forward, but defendant Brewer "never expected that (Elayer) would not stop," and considered it sufficient to sound her horn as she drove toward the intersection.

From the varying statements made by both defendants, the jury could reasonably have found that defendant Elayer did not stop short of the area of intersection between Broadmoor and Campbell, and that defendant Brewer could have swerved to her left, avoiding the Elayer vehicle, but failed to do so. In any event, the right rear of the Brewer vehicle struck the front part of the Elayer vehicle, and thereafter slid or spun or both southeasterly some 225 feet where it struck the Deskin automobile head-on in the west northbound lane of Campbell, or, as plaintiffs' counsel insist and reiterate, on the "wrong" side of the road. Such is the factual background of the case, as briefly as it can fairly be stated.

We first consider defendant Brewer's appeal. Her initial assignment of error has to do with the trial court's refusal to permit an expert witness to testify that defendant Brewer's automobile could not have "changed lanes" in time to avoid striking the plaintiffs' vehicle, and the trial court's refusal of an offer to prove by the expert that because the Brewer car spun after it came in contact with the Elayer vehicle, defendant Brewer could not have avoided the collision. Citing various cases in which "expert" testimony concerning stopping distances has been held admissible, e. g., Burrow v. Moyer, 519 S.W.2d 568, 570(3) (Mo.App.1975), and Sullivan v. Hanley, 347 S.W.2d 710, 716(7) (Mo.App.1961), defendant Brewer argues that the expert's testimony should have been admitted to rebut the inference of negligence which arose

Page 397

from her being on the wrong side of the road, as outlined in Friederich v. Chamberlain, 458 S.W.2d 360, 366(4)(5)(6)(7) (Mo.banc 1970).

In the view we take of this appeal, the point need not be discussed at length. The expert witness was called by defendant Elayer; he was permitted to testify to some stopping distance tests he had made on Campbell Avenue in the vicinity of Broadmoor and Campbell. As the examination of the expert progressed, it became apparent that counsel for both defendants were attempting to "reconstruct" the accident and allocate fault on the basis of the expert's testimony. His opinions concerning the maneuvers which could have been made by the parties to avoid the accident were consistently excluded by the trial court. The substance of the specific inquiry to which objection was sustained was whether defendant Brewer could have swerved in 1 1/2 car lengths, "assuming (driving conditions) to be as (counsel had) stated, where the tire tracks go, ¹ . . . there's something causing a slick condition . . . and . . . (defendant Brewer) . . . is spinning around . . . ." After objection to this question was sustained, counsel for defendant Brewer offered to show by the witness that defendant Brewer could not have swerved in 1 1/2 car lengths after she had struck or been struck by the Elayer vehicle.

It may be conceded that results of experiments made out of court are admissible in the discretion of the trial court if it is shown that the experiments were conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit. Faught v. Washam, 329 S.W.2d 588, 598(13), and authorities cited n. 13 (Mo.1959). Opinion evidence is a somewhat different matter. It is doubtless true that an expert's opinion as to causation is no longer objectionable solely upon the ground that the opinion bears on an ultimate issue in suit. Eickmann v. St. Louis Pub. Sv. Co., 363 Mo. 651, 663-664, 253 S.W.2d 122, 129-130(7, 8) (1952); Comment, Expert Testimony in Missouri on Point of Impact in Automobile Accidents, 33 Mo.L.Rev. 645, 648-654 (1968); C. McCormick On Evidence, Evidence § 12, p. 27 (2d ed. 1972). Nevertheless, our Supreme Court has balked at permitting the complete " reconstruction" of automobile casualties so as to permit the allocation of fault by expert hindsight. Housman v. Fiddyment, 421 S.W.2d 284, 289(1-4) (Mo.banc 1967). As we view the legal question at hand, it was for the trial court to determine, in the exercise of discretion, whether expert testimony was necessary and whether the testimony, as offered, would assist or merely tend to confuse or usurp the function of the jury. Housman v. Fiddyment, supra, 421 S.W.2d at 289; Yocum v. Kansas City Pub. Sv. Co., 349...