Epple v. Western Auto Supply Co.

• Decision Date: 14 March 1977
• Docket Number: No. 59683,59683
• Citation: 548 S.W.2d 535
• Parties: Lawrence K. EPPLE, Jr., et al., Respondents, v. WESTERN AUTO SUPPLY COMPANY et al., Appellants.
• Court: Missouri Supreme Court

Page 535

548 S.W.2d 535

Lawrence K. EPPLE, Jr., et al., Respondents, v. WESTERN AUTO SUPPLY COMPANY et al., Appellants.

No. 59683.

Supreme Court of Missouri, En Banc.

March 14, 1977.

Dissenting Opinion April 11, 1977.

Rehearing Denied April 11, 1977.

Paul S. Brown, St. Louis, for appellants.

Alan G. Kimbrell, St. Louis, for respondents.

BARDGETT, Judge.

This case involves a suit brought by plaintiffs-respondents to recover damages arising from the death of their parents who were killed in a head-on collision of the parents' car with a truck owned by defendant-appellant, Western Auto Co., and being operated by defendant-appellant Davis. The case was submitted to the jury under the humanitarian negligence doctrine on the failure of Davis to stop, slacken speed, or swerve, and the jury returned a verdict for plaintiffs and awarded $100,000 in damages. The Missouri court of appeals, St. Louis district, en banc, reversed (three judges dissenting) and ordered the trial court to enter judgment for defendants because it found that plaintiffs failed to make a submissible case on any of the theories presented. On application of plaintiffs-respondents, we transferred this case pursuant to Art. V, sec. 10, Mo.Const. Much of the following opinion is taken from the dissenting opinion in the court of appeals of Gunn, J.

The defendants raise four grounds for reversal on this appeal: 1) the trial court erred in denying their motion for directed verdict because the plaintiffs failed to make a submissible case; 2) the court erred in instructing the jury on the plaintiffs' theory of the case because these instructions were not supported by the evidence and did not conform with MAI; 3) the court erred in failing to define the term "negligence" as used in the instructions to the jury; and 4) the court erred in allowing certain questioning by plaintiffs' counsel on voir dire examination of the jury panel.

The defendants assert that the plaintiffs failed to make a submissible case under the humanitarian doctrine. In determining whether a submissible case was made, the evidence is considered in the light most favorable to the plaintiffs, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiffs the benefit of all favorable inferences that reasonably may be drawn from such evidence. Vaeth v. Gegg, 486 S.W.2d 625 (Mo.1972); Houghton v. Atchison, Topeka & Santa Fe R. Co., 446 S.W.2d 406 (Mo. banc 1969); Joggerst v. O'Toole, 513 S.W.2d 722 (Mo.App.1974). From a review of the record, we find that the plaintiffs did make a submissible case.

The head-on collision occurred during the mid-afternoon of July 24, 1969, on Route 87 near Eldon, Missouri. In the vicinity of the accident, Route 87 is a narrow, rolling and winding, paved two-lane highway. The width of the pavement varied between 191/2 and 201/2 feet, and there were no shoulders on either side of the road. There were ditches along both sides of the pavement. The Epple car, a 1969 Ford station wagon, was northbound and the Western Auto truck, a 45-foot-long tractor trailer, was southbound. The impact occurred in a curve a curve to the right for the Epple car and a curve to the left for the truck. At the approximate apex of the curve, a gravel road fed into the southbound lane at an angle, forming a "Y" intersection. The two vehicles came together with tremendous force in the southbound lane. The front right portion of the Epple station wagon came in contact with the right front tire of the tractor trailer. At the moment of impact, the left front tire of the Epple car had entered onto the gravel road which was in the line of travel of the Epple car. The station wagon came to rest facing southwardly, having been turned around and pushed some 27 feet south of the point of impact. The truck came to rest on its side in a ditch on the east side of the road after having jackknifed. Five of the seven occupants of the Epple car, including plaintiffs' parents were killed, and Davis suffered a fractured skull.

At trial, the factual circumstances involved in this accident were elicited primarily from defendant Davis who was the sole surviving eyewitness. Due to the head injuries he suffered, however Davis's memory was somewhat unclear as to what actually transpired and therefore some areas of his in-court testimony were inconsistent with previous statements he had made. These previous statements were introduced into evidence by the plaintiffs as admissions of a party opponent. In determining whether a submissible case was made, the court need look only to those aspects of Davis's account of the accident that were most favorable to the plaintiffs and which the jury could have found to be true. Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969); Young v. Kansas City Southern Railroad Co., 374 S.W.2d 150, 153 (Mo.1964).

Davis testified that as he approached the curve in Route 87, he was traveling at 40 m. p. h. He first saw the station wagon as it crested a hill at the opposite end of the curve. Although he could not recall how far away the car was, he estimated that it was 200 feet from the point of impact. A plat of this section of Route 87 that was introduced into evidence shows that the crest of the hill is between 250 and 350 feet from the point of impact. When he saw the Epple car crest the hill, Davis noticed that it was at least partly in the wrong lane. Sensing that something was wrong, Davis believed that he applied his brakes as a "reflex" action and began to slow down to a speed of 20-30 m. p. h. He stated that he could see the car at all times after it had crested the hill and that it traveled in a straight line, angling more and more into the southbound lane until the collision occurred. The car did not diminish its speed as it approached the point of impact. As to his own actions, Davis testified that after slowing down to between 20 and 30 m. p. h., he began to down-shift to prevent his engine from dying. He claimed that the purpose of the shift was to have more control over the truck in case he had to quickly maneuver it to avoid an accident. But, under the evidence, the jury could have found the down-shifting could have been for the purpose of gaining power to go negotiate the hill in disregard of the oncoming Epples. Davis also stated that he could not shift and brake at the same time and thus took his foot off the brake when beginning the shift. The accident occurred before the shift could be completed. The right front wheel of the tractor trailer came in contact with the right front of the Ford station wagon. When the vehicles collided, the left front wheel of the station wagon had entered the gravel road. Davis testified that he was familiar with this section of Route 87, having driven it at least once a week for the last one and one-half to two years. He knew of the existence of the gravel road and, at the time of the accident, was aware of the fact that it might serve as an escape route for the Epple car.

Testimony was also produced from Officer Temmens of the Missouri Highway Patrol who came to the scene thirty-five minutes after the accident. He found and measured skid marks. He stated that there were skid marks 100 feet long leading back to the south from the point of impact. The skid marks began with the left tire about one foot over the center line and led straight to the point of impact. At the point of impact the skid marks made by the right tire were about four feet over the center line. The officer also testified that he found skid marks made by a dual-wheeled vehicle leading to the point of collision from the north. These marks were 78 feet in length and stopped short of the debris. The marks were in the southbound lane and they turned towards the center line as they came to an end. Photographs of all the skid marks were introduced into evidence.

The plaintiffs also produced as a witness a line foreman for Missouri Utilities who was driving a dual-wheeled truck southbound on Route 87 some distance behind the dual-wheeled truck driven by Davis. The witness testified that as he approached the curve in question he saw that the road was blocked due to the accident and was forced to apply his brakes strongly to prevent colliding with the vehicles obstructing the road. He did not know whether he laid down any skid marks.

Also called as a witness was Reverend Ryan who testified that he was driving northbound on Route 87 behind the Epple station wagon for some two to three miles up to the point of the accident. He stated that the Epple car was traveling between 50-55 m. p. h.

In a humanitarian case, as well as in other actions, the burden is on the plaintiff to establish every essential element of his theory of submission by substantial evidence of probative value or by inferences reasonably deducible therefrom. Yarrington v. Lininger, 327 S.W.2d 104, 109 (Mo.1959); Martin v. Sherrell, 418 S.W.2d 209, 214 (Mo.App.1967). The plaintiff must remove his case from the realm of speculation, conjecture or surmise. Yarrington v. Lininger, supra; Burks v. Wilson, 356 S.W.2d 121, 128 (Mo.App.1962); Farmer v. Taylor, 301 S.W.2d 429, 433 (Mo.App.1957). Under a humanitarian submission, the plaintiff must establish the following five elements: 1) the plaintiff was in a position of immediate danger; 2) the defendant was aware or should have been aware of the plaintiff's position of peril; 3) after receiving such notice, the defendant had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; 4) the defendant failed to exercise the requisite care to avert such impending injury; and 5) by reason thereof, the plaintiff was injured. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482 (banc 1924).

The first step in establishing liability under the humanitarian doctrine is demonstrating that the plaintiff came into a position of immediate danger....