Elsworth v. Glindmeyer, 45676

Decision Date13 April 1970
Docket NumberNo. 45676,45676
Citation234 So.2d 312
PartiesTommy R. ELSWORTH, Sr. and Tommy R. Elsworth, Jr., a Minor by Tommy R. Elsworth Sr., Father and Next Friend v. C. E. GLINDMEYER, E. E. Patenotte, Jr. and Atlas Cuevas.
CourtMississippi Supreme Court

Robertson and Jones, JJ., Gillespie, P. J., and Smith, J., dissented.

Daniel, Coker, Horton & Dukes, Gulfport, for appellants.

Holleman & Necaise, Gulfport, for appellees.

BRADY, Justice:

This is an appeal from a judgment of the Circuit Court of the First Judicial District of Harrison County, Mississippi, wherein the appellant was denied damages arising out of a collision between an automobile, operated by the wife of the appellant, and a large Ford 5,000 all-purpose tractor owned by the appellees C. E. Glindmeyer and E. E. Patenotte, Jr. and operated by appellee Atlas Cuevas, their agent and employee. From a verdict in favor of the appellees, this appeal is taken.

Numerous errors are assigned by the appellant but the disposition of this case requires our consideration of only three errors. We will consider the first two errors together, the first error being that the lower court erred in refusing an instruction which would have instructed the jury that the appellees were guilty of negligence as a matter of law, because the tractor was in the wrong lane at the time of the accident and the only testimony to the contrary was so inherently improbable and unbelievable when compared to the known facts as to amount to no evidence at all. The second error urged is that the verdict and judgment entered thereon are contrary to the overwhelming weight of the evidence. In resolving these assignments of error it is essential that the cardinal established facts in this cause be reviewed.

On the morning of December 19, 1968, Mrs. Shirley Elsworth, Twenty-one years old, the wife and mother, respectively, of appellants, was driving their 1968 Pontiac automobile, approximately sixteen feet in length, over highway number 603, a county paved road also known as the DeLisle-Vidalia Road. The road extends generally in a north and south direction. Mrs. Elsworth was proceeding north, in the east lane, that being the proper lane for anyone traveling north. The road is practically straight for a distance of 1187 feet from a slight curve on the south end to a cattleguard entrance located off the east side leading to the home of Mr. Clyde Malley.

Appellee Atlas Cuevas, admitted agent and employee of appellees Glindmeyer and Patenotte, was driving their Ford 5,000 power-steered tractor weighing 6,250 pounds and loaded with a hydraulic lifted four-bladed turning plow weighing 1,289 pounds, so that the overall weight was 7,539 pounds. Mr. Cuevas had been plowing, but had to get smaller plows to perform this job and was returning over the same road traveling south thereon.

As he passed in front of Mr. Clyde Malley's home he was proceeding in the west half and southbound lane of the road. Tis is confirmed by Mr. Clyde Malley and they both waived to each other as Cuevas proceeded southward. Thereafter Mr. Clyde Malley never saw where the tractor was until after the wreck. He looked southward as he and a friend, Harbert Malley, were talking and saw the Pontiac car 'coming up the road sideways the front end headed west and the back end was headed east, I just put my hands over my eyes and said: 'Look yonder." He did not know what lane the tractor was in at the time of collision and repeatedly refused to say where it was. He ran to the scene and saw the car impaled on the front of the tractor. Both vehicles were in the east half and northbound lane. Mrs. Shirley Elsworth was dead in the Pontiac. Cuevas was in the road. Subsequently, on Thursday, March 20, 1969, before the trial on March 27, 1969, he stepped the distance that the Pontiac had traveled from the place where he thought he first saw the car going sideways to the spot where the oil was deposited in the east half and northbound lane of the road and found it to be sixty-five steps. The left rear wheel of the tractor, he testified, was closer to the east edge of the road and the front of the tractor was nearer the middle of the road. He realized when he saw the Pontiac moving sideways that a crash was inevitable. He saw the tractor driven into the center of the Pontiac's right side. He testified that the oil, dirt and debris from the vehicles were in the east and northbound lane of traffic under the vehicles, except for a little glass which was over in the west side. Mr. Malley stated that he did not see any skid marks at the scene of the collision.

Mr. Atlas Cuevas testified that he was driving on the west or southbound side of the road traveling about ten miles per hour. He testified that he stayed on the west or right side of the road as he proceeded south because he always drove on the right side of the road. Cuevas first stated that he first saw the car when it came around the curve, which the map reflects would be a distance of eight hundred feet from the point of collision. The vision south and north is unobstructed considerably farther. Cuevas stated that the Pontiac was traveling so fast there was nothing he could do. He subsequently said the car was only two hundred feet away, but on examination by his attorney he increased the distance to three hundred feet. He said the car was traveling so fast at the time it came around the curve, 'It just did that,' indicating a side waving hand motion, 'and that is all I remember.' He was able to determine and remember, however, that the car was traveling eighty to ninety miles an hour and that the time interval between the time he first saw the car and the collision was just a 'snap of the finger.' Repeatedly he stated that from the time he first saw the car he had no further memory. Cuevas stated he did not know where the tractor was after the accident. He did not know if the tractor ever left the southbound lane or what side of the highway the car was on after the accident. He testified he was knocked out and the skull of his head 'was cracked.' He failed to give any details as to why and how the collision actually occurred except as above outlined.

Mr. E. E. Patenotte, an employer and appellee, arrived a short time after the accident. He had been following Mr. Cuevas. He testified he was so excited that he did not notice the details of the wreck, but was more interested in getting Mr. Cuevas to the hospital. Mrs. Elsworth appeared to be dead. Even Patenotte admitted, however, that the tractor 'was a little on the left, off-center' of the road coming south, 'and the car was cross-eays.' It is interesting to note that Mr. Patenotte testified that the tractor dealer advised him the tractor 'had a maximum speed of around seventy miles an hour, something like that.'

County Patrolman Claude Miller, with fourteen or fifteen years of service, arrived at the scene approximately twenty minutes after he received the call over his radio. He testified that the tractor was in the northbound half of the road. Its rear left wheel was four or five inches closer to the edge of the pavement than the front end. 'The tractor-the front of the tractor went in the right door of the car * * *. The tractor's front end was about halfway through the front door of the car on the right side.' He testified 'the car was on the east or north bound lane * * *. It was turned, the back end of the car was on the right, going north, it would have been in the right edge of the road.' He testified that the tractor was facing south in the northbound lane. The road, he stated, was approximately twenty feet wide, the Pontiac was approximately sixteen feet long. The back bumper of the car was 'almost right at the edge of the road.' (The east side.)

Patrolman Miller stated, 'the oil and debris and dirt from the plow were all underneath the plow and tractor and the car.' He was asked, 'Was there any debris in any other area nearby?' He replied, 'I didn't see any, no sir.' On cross examination by appellee's attorney he was asked, 'Now there was debris all over that road, wasn't there Claude?' He replied, 'No sir there wasn't.' Also, he was asked, 'Mr. Miller, you say there were no skid marks (at the scene of the accident)?' He answered, 'There were no skid marks.'

Patrolman Miller took photographs which graphically depicted the scene immediately after the wreck. The pictures showed the position of the vehicles in the northbound lane of traffic, the front of the tractor protruding halfway through the automobile at the center of its right side. The front wheels of the tractor were broken off and the tractor front was resting on the chassis of the Pontiac. The rear of the Pontiac was about the east edge of the pavement and the front end was extending into the west half of the road. These pictures showed the exact position of the vehicles, the oil deposit, edges of the road and the condition of the tractor and car.

Patrolman Miller testified that appellees Glindmeyer and Patenotte 'came by and looked at the pictures the night after the accident happened and said they would like to get copies of them.' The record discloses that no further effort was ever made by the appellees or any of their attorneys to get the photographs from Miller. Patrolman Miller testified that traffic could and did pass on the west side of the road, by putting one wheel on the shoulder and the record reveals that 'even a gravel truck came by there at that time.'

Mr. John C. Hogan, who repairs heavy equipment and operates a wrecker service, was called and went to the scene of the wreck. He did nothing until Officer Miller had made his investigation of the premises and taken pictures. He corroborated Officer Miller completely as to the vehicles being in the east and northbound lane, and the positions therein, the tractor headed south in the northbound lane and the car sideways in the northbound lane. He testified...

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