Ethridge v. Gallagher, WD

• Decision Date: 27 June 1989
• Docket Number: No. WD,WD
• Parties: Gordon ETHRIDGE, Appellant, v. Michael J. GALLAGHER, Defendant ad litem for Daniel J. Cates, Deceased, Respondent. 41142.
• Court: Missouri Court of Appeals

Page 207

773 S.W.2d 207

Gordon ETHRIDGE, Appellant, v. Michael J. GALLAGHER, Defendant ad litem for Daniel J.

Cates, Deceased, Respondent.

No. WD 41142.

Missouri Court of Appeals,

Western District.

June 27, 1989.

Phillip S. Smith and Thomas Stein, Kansas City, for appellant.

Dale L. Beckerman and Mimi E. Doherty, Kansas City, for respondent.

Before KENNEDY, C.J., and GAITAN, J., and CONNETT, Special Judge.

GAITAN, Judge.

Appellant, Gordon Ethridge, appeals the giving of Instruction No. 9, a verdict directing instruction on comparative fault, to the jury. The instruction gave four disjunctive submissions of negligence which were: (1) rear-end collision; (2) excessive speed; (3) failure to keep a careful lookout; and (4) failure to stop, swerve or slacken speed. Ethridge also contends the trial court erred by instructing the jury panel that respondent, Daniel J. Cates, died thirteen days after the collision. Lastly, Ethridge alleges that the trial court erred in allowing Cates' attorney to elicit testimony that a freezer in the back of Cates' vehicle had been jarred loose by the impact and had pinned Cates down, preventing him from giving a statement. The jury verdict assessed 70 percent fault to Ethridge and 30 percent to Cates.

The judgment of the trial court is affirmed.

This case involves a suit for property damage and personal injuries allegedly sustained in a collision between vehicles driven by Ethridge and Cates on September 4, 1985. Both vehicles were northbound on Highway 7 in Blue Springs, Missouri, at the time of the collision. The dump truck that Ethridge was driving struck Cates' ice cream van from the rear.

At the outset of voir dire, the trial judge made the following statement to the jury panel:

The case that you are going to be asked to oversee as a juror, if you are ultimately selected, is a civil case that involves an automobile accident, and the plaintiff--one of the defendants in this case, Mr. W. Faye Cates, died within about 13 days after this accident occurred. And under the law, it is required that a defendant ad litem, a representative be appointed to represent his interest in that case and it has been done, but obviously he will not be here to testify in the case but he is represented through a defendant ad litem.

There was conflicting evidence as to the location and movement of Cates' vehicle immediately prior to the accident. Ethridge and two young girls who were walking down Highway 7 at the time of the collision, testified that the ice cream van had been stopped on the west side of Park Road at its intersection with Highway 7 and then turned left and pulled out in front of Ethridge in the northbound lane of travel on Highway 7.

There was also testimony that Cates was traveling northbound on Highway 7 and had not turned off of Park Road onto Highway 7. Barbara Friend, a witness for Cates, testified that immediately prior to the accident she was driving southbound on Highway 7 toward Park Road and toward the parties' oncoming vehicles and saw both the Cates' van and Ethridge's dump truck traveling north on Highway 7. She was going about 35 miles per hour. Ms. Friend stated that the Cates vehicle was going very slowly when she saw it. As she approached the intersection of Park Road and Highway 7 from the south immediately before the accident, she had her eyes trained on the road in front of her for five or ten seconds. In that time, the Cates' vehicle did not cross her lane or make a turn in front of her from Park Road onto Highway 7. When Ms. Friend entered the intersection, she stated that the vehicles were "so close to each other" that she realized a collision was imminent. She heard the collision as she left the intersection.

In addition, shortly after the collision, Ethridge spoke with the investigating police officer, Ken Gentry, and told Officer Gentry only that Cates' ice cream van suddenly appeared in front of him. Ethridge did not tell Officer Gentry that he had seen Cates' vehicle stopped on Park Road or that the vehicle had turned left off Park Road. The day after the accident, Ethridge twice told Kevin Kirby, an investigator for Delight Wholesale Company, the owner of the Cates vehicle, that he just looked up and the ice cream van was in front of him. Again, he did not say anything about seeing the van stopped at the stop sign on Park Road.

Manuel Andres was called by Cates' attorney as an expert witness. Officer Andres is a Kansas City police officer who has nineteen and one-half years experience in the department's Traffic Specialist Unit (formerly known as the Accident Investigation Unit). Officer Andres is trained in measuring and calculating minimum speeds from skid marks left by vehicles. There was evidence that Highway 7 has been resurfaced since the accident and before Officer Andres' involvement in the case. The investigating officer, Ken Gentry, did not measure the grade or slope of Highway 7 as it approaches Park Road on the day of the accident, but estimated that it was six or seven percent. Officer Andres testified that he had experience estimating grades of roadways from photographs, and had the opportunity on many occasions to compare his estimates with the actual results in the field and that those comparisons were "real" close. Over objections that the testimony called for conclusions and speculation, Officer Andres estimated the grade of Highway 7 from a photograph of the location which had been previously identified by Officer Gentry as a fair and accurate representation of Highway 7 at the time of the accident. The trial court ruled that Officer Andres had already been qualified as an expert and that his credibility could be questioned on cross-examination. Officer Andres estimated the grade at five or six percent.

Officer Andres further explained that in calculating minimum speeds, one needs to know the length of the skid marks and the friction of the roadway. Officer Gentry had previously testified that he had measured from the first skid mark to the last one laid down by Ethridge's dump truck and found the length to be 157 feet and 11 inches.

Officer Gentry had testified that the road surface of Highway 7 at the time of the accident was what is commonly described as traveled asphalt. The description of a road surface as traveled asphalt permitted Officer Andres to estimate the coefficient of friction. Officer Andres has previously estimated coefficients of friction for traveled asphalt from reports and has had opportunities to confirm his estimates with actual field results. His estimates have been within the recommendations of friction factors. Coefficients of friction are expressed in ranges to account for variations in road surfaces. The range of coefficients of friction that Officer Andres used for traveled asphalt is 55 to 70 percent.

From those figures, and adjusting the coefficients of friction for grade, Officer Andres testified in response to a hypothetical that the range of minimum speeds of Ethridge's vehicle was between 47.97 miles per hour and 54.80 miles per hour. The speed limit on Highway 7 at the time of the collision was 45 miles per hour.

Officer Andres also testified that Ethridge's vehicle had additional speed because Ethridge's vehicle overtook and struck Cates' moving vehicle and because of the extent of the damage to the vehicles. According to Officer Gentry, the Cates vehicle ended up 45 feet from the point of most of the debris. The impact was sufficient to dislodge a freezer in the van. Additional speed calculations were not made.

Officer Andres also calculated Ethridge's total stopping distance to be 277.5 feet at 54.80 miles per hour and 262 feet at 47.97 miles per hour, using the lower coefficient of friction as adjusted for grade. He further testified that Ethridge's total stopping distance at the speed limit of 45 miles per hour would have been from 204.41 feet to 226.7 feet depending on the coefficient of friction. Officer Andres testified that in his opinion if Ethridge had been traveling 45 miles per hour and had begun to react to a hazard when he was 262 feet back he would have been able to come to a total stop by the time he reached the intersection.

There was also evidence that a vehicle traveling north on Highway 7 would have had a clear view of the Park Road intersection. Officer Gentry testified that Park Road could be seen by a northbound driver for quite a distance. Ethridge testified that he traveled a few hundred feet after seeing the van before he realized that it was a danger to him. He stated that the van was midway through the southbound lane of Highway 7 before he realized it was threat to him. He estimated that his vehicle was 200 feet from the van when he began braking.

The dimensions of the roadway and the physical features of the property immediately adjacent to Highway 7 were the subject of both testimony and exhibits. Officer Gentry testified that Highway 7 was 24 feet wide from curb to curb. Exhibit 1 showed that a centerline evenly divided the highway. Officer Gentry further testified that the stop sign protecting Highway 7 from eastbound traffic on Park Road was 21 feet from the west curb line of Highway 7. There were ditches on both sides of Highway 7.

Ethridge's first four points on appeal contend that the trial court erred in giving Instruction No. 9 to the jury because a submissible case had not been made for the four alternative theories of negligence in that instruction. Instruction No. 9 states as follows:

In your verdict you must assess a percentage of fault to plaintiff whether or not Daniel J. Cates was partly at fault if you believe:

First, either:

plaintiff drove at an excessive speed, or

plaintiff's automobile came into collision with the rear of Daniel J. Cates' automobile, or plaintiff failed to keep a careful lookout, or plaintiff knew or by the use of the highest degree of care, could have known that there was a reasonable likelihood of...