Edie v. Carlin, No. 8184

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: HOGAN; RUARK, P. J., and STONE
• Citation: 369 S.W.2d 610
• Parties: Billy Max EDIE, Plaintiff-Appellant, v. Roy J. CARLIN, Defendant-Respondent.
• Decision Date: 17 July 1963
• Docket Number: No. 8184

Page 610

369 S.W.2d 610 Billy Max EDIE, Plaintiff-Appellant,
v.
Roy J. CARLIN, Defendant-Respondent. No. 8184. Springfield Court of Appeals, Missouri. July 17, 1963.

Page 611

Ellis & Ellis, Cassville, R. A. Ellis, Jr., and B. H. Clampett, of Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for plaintiff appellant.

Harold J. Fisher and Russell G. Clark, of Allen, Woolsey & Fisher, Springfield, for defendant respondent.

HOGAN, Judge.

In this automobile accident case, Billy Max Edie had judgment against Roy Carlin on a nine-man jury verdict, and the trial court granted a new trial on the ground that Instruction No. 2, given at plaintiff's request, was confusing and misleading. Plaintiff has appealed. No question is made here of the submissibility of plaintiff's case and a brief statement of the facts will be sufficient.

The accident occurred on March 28, 1961, about 3:00 P.M., on Highway 86 near Wheaton, Missouri. At this point, about one-half mile north of Wheaton, Highway 86 is a two-lane bituminous or blacktop highway running north and south. The traveled portion of the road is 22 feet wide and is divided into east and west (northbound and southbound) lanes by a broken white line. The road is straight, but there is a 12 to 15 foot rise in the road where the highway crosses an abandoned railroad roadbed running (approximately) perpendicular to the highway, just north of the point where the parties' vehicles collided and about one-fourth mile north of Wheaton. This rise obstructs the view of oncoming traffic for both northbound and southbound vehicles for a considerable distance. At the time of the accident, the weather was clear and sunny and the pavement was dry. The plaintiff was driving north and the defendant was driving south. Each was alone in his car. Briefly stated, it was the position of each party that the other was driving in the wrong lane, and as a result they collided head on.

The plaintiff testified, and his evidence tended to show, that immediately before the collision he was driving north, about 40 miles per hour, entirely in the east, or northbound, lane, with the left side of his car about a foot east of the center line. As he approached the crest of the rise ahead, the plaintiff 'saw a car coming over the roadbed right in the middle of the road,' 'coming right towards me.' Plaintiff estimated the speed of the oncoming (Carlin) vehicle to be about 60 miles per hour. Plaintiff applied his brakes and turned his vehicle sharply to the right. The Carlin vehicle continued to approach the plaintiff, 'coming right straight to my side of the road,' without slackening its speed; and, although the plaintiff had turned as sharply as he could and had applied his brakes so that he was traveling northeasterly attempting to avoid the defendant, and his right front wheel was off the pavement on the shoulder at the time of impact, the two automobiles collided head on in the east lane. Other evidence offered by the plaintiff tended to show that the actual point of impact was in the east lane, about 200 feet south of the crest of the rise, where, at the time of collision, the left front part of plaintiff's automobile had fallen onto the pavement, gouging out a lateral groove. Dirt and other debris on the highway also indicated that this had been the point of

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collision, and plaintiff's witnesses testified that after the accident, and before the vehicles had been moved, traffic continued to move northward in the west lane. Mr. Edie sustained personal injuries.

The defendant's evidence, on the other hand, indicated that just prior to the accident he was traveling south in his own lane, going about 60 miles per hour; and, as he came over the crest of the rise, he was confronted by the Edie vehicle immediately ahead 'plumb to the west side,' 'right in my path.' Mr. Carlin then looked to the right, saw that the road slanted away rather sharply for 12 to 15 feet to his right, and, in defendant's words, 'it looked like it'd been suicide to cut my car in there, and there was an opening to the left and I took it.' Mr. Carlin therefore 'made one quick decision' and, since the left (east) lane was clear and the Edie automobile was 'facing' defendant, 'coming straight at me,' the defendant turned sharply to the east trying to avoid the plaintiff. Mr. Carlin recalled turning to his left 'as sharp as he could cut it,' but, after the impact occurred, he recalled nothing. The defendant estimated that the Edie automobile had been 120 to 150 feet away when he first saw it and that he had been 'practically on top' of the old railroad roadbed before he saw the plaintiff. The defendant also adduced evidence which tended to prove that there was another, and parallel, groove, or 'gouge mark,' a short distance to the north of the groove identified by the plaintiff; and defendant's evidence indicated that the second or northernmost groove, rather than the one pointed out by the plaintiff, marked the actual point of impact. By means of a series of photograhic exhibits and the testimony of two witnesses who had inspected the scene shortly after the accident, the defendant undertook to show, and his evidence did tend to prove, that there were skidmarks originating in the southbound (west) lane and extending some 47 feet northeasterly (that is, in Mr. Edie's general direction of travel) up to the point where the plaintiff's vehicle left the highway. The estimates made by defendant's witnesses as to the length of the northbound skidmarks and their point of origin varied, but the general effect of defendant's evidence was to show that part of the plaintiff's northbound vehicle had been in the southbound lane and had skidded from the center of the road to the point of impact.

Plaintiff submitted his case to the jury solely upon the defendant's negligence in failing to drive his vehicle upon the right half of the roadway, as required by Section 304.015, subpara. 2. ¹ The plaintiff's hypothesis was, very succinctly, that as the plaintiff was driving north in his proper lane, the defendant drove into the northbound lane and collided with him. To counter this submission, the defendant offered, and the trial court gave, Instruction 6, an emergency...