Evans v. Colombo
| Decision Date | 12 January 1959 |
| Docket Number | No. 46957,46957 |
| Citation | 319 S.W.2d 549 |
| Parties | Lorraine EVANS, Respondent, v. Mary COLOMBO, Appellant. |
| Court | Missouri Supreme Court |
J. D. Leritz, J. L. Leritz, St. Louis, for appellant.
Douglas H. Jones, Charles A. Lee, Jr., St. Louis, for respondent, Barnhart & Sommers, Cleo V. Barnhart, Don B. Sommers, St. Louis, of counsel.
This case was brought here upon application for transfer from the St. Louis Court of Appeals; the opinion of that court appears at 311 S.W.2d 141. The suit is one for personal injuries arising from a collision of automobiles in the City of St. Louis. We adopt the facts as stated by the Court of Appeals, with such slight additions as may be noted in the course of the opinion. Some repetition may be necessitated by our references to certain issues. Plaintiff recovered a verdict and judgment for $5,500; the Court of Appeals reversed, holding that plaintiff had not made a submissible case, but remanded the case; it further held that a verdict-directing instruction of plaintiff was erroneous. We arrive at the same result as did the Court of Appeals, but by a slightly different route. We have concluded that plaintiff did make a submissible case, and that the instruction was erroneous.
Plaintiff, with passengers in her Buick car, had stopped in the inside northbound lane of Kingshinghway, a six-lane street, about three car lengths back from its 'T' intersection with Magnolia. The traffic was controlled by light signals. Defendant, alone in a Mercury car and headed west on Magnolia, was making a left turn into Kingshighway. It was raining and the asphalt surfaces were slick; Magnolia sloped downward somewhat as it approached Kingshighway. As defendant made her turn, from west to south, her car began to skid counterclockwise, and it thereafter traveled an almost complete semicircle in excess of its intended left turn; in so doing, it practically reversed the direction of its movement. In the course of this movement it struck the left front of plaintiff's stationary car; it then (according to some of the testimony) continued on until it occupied, generally, the space between plaintiff's car and the car stopped ahead of her to the north, and 'touched' or 'hit' the rear bumper of that car. There is a fair inference that the movement after striking plaintiff's car was generally forward, and that defendant's motor was running and propelling the car. In this movement defendant's car crossed the center line to the extent that the major part of it was east of that line when it stopped, headed north or northeast. The front of plaintiff's car was knocked eastwardly by the impact, a distance estimated by her as two or three feet. The movement of defendant's car was variously referred to or described as: a 'turn and spin' (plaintiff), 'skidded' or 'skidded and lost control' (defendant's oral statements introduced by plaintiff), 'her car skidded and she lost control' (defendant's oral statement to policemen, offered by plaintiff), 'continued to go clear around' (plaintiff), 'and my car skidded and the back end just swerved around' (defendant's deposition introduced by plaintiff). There can be no doubt that the car did skid, and that the case was tried on that theory (see, also, opinion of the Court of Appeals on rehearing, 311 S.W.2d at pages 146-147) although plaintiff assailed the original opinion of the Court of Appeals because it considered the case as a skidding case. In fact, counsel for plaintiff now state, in a supplemental brief filed here, that the evidence of both parties 'indicated that defendant's automobile did skid in its process of making its left-hand turn * * *.'
It is true that evidence of mere skidding does not make a submissible case, if there is nothing more. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Karch v. Stewart, Mo., 315 S.W.2d 131; Polokoff v. Sanell, Mo.App., 52 S.W.2d 443. But this rule, it is said, applies only where the evidence shows that the skidding 'is the 'sole factual cause." Rodefeld v. St. Louis Public Service Co., Mo., 275 S.W.2d 256, 258, citing Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434, and Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898. See, also, Karch v. Stewart, Mo., 315 S.W.2d 131, 135, which so holds. And, although negligence may not be inferred from skidding alone, it may be found or inferred from evidence and circumstances of which skidding is a part. Triplett v. Beeler, Mo., 268 S.W.2d 814; Statler v. St. Louis Public Service Co., Mo.App., 300 S.W.2d 831; Rodefeld, supra; Story, supra; Dodson, supra; Bear v. Devore, Mo.App., 177 S.W.2d 674. In some circumstances it may be inferred that the skidding was caused by negligence. Triplett, supra. And in certain 'skidding' cases specific negligence has been affirmatively shown, either as the cause of the skidding or as an independent proximate cause of the injury. Rodefeld, supra; Trump v. Ballinger, Mo., 317 S.W.2d 355, 359; Karch v. Stewart, Mo., 315 S.W.2d 131; Statler, supra; Triplett, supra.
We have concluded that the evidence here did show more than a 'mere skidding.' There was evidence indicating the following: that defendant was making her left turn at 15 miles an hour on slippery, wet asphalt streets, and that she was traveling at 10 miles an hour at the time of the impact; that another car had made the same left turn safely ahead of defendant; that her car turned or swung, counterclockwise, a substantially complete semicircle in deviation from her intended course; that the right front of defendant's car struck the left front fender of plaintiff's car and that defendant's car then continued on (generally forward) until it occupied the vacant space ahead and north of plaintiff's car, and at least touched the bumper (defendant herself said 'It hit the * * * bumper') of a car stopped some distance ahead of plaintiff; that the impact with plaintiff's car knocked the front of that car eastwardly, perhaps 2 or 3 feet; that defendant's turn or mode of turning prompted plaintiff to stop further back, and sooner, in the line of traffic than she normally would; and that defendant at no time applied her brakes, which were in good condition. There was no evidence of defendant's use or attempted use of her steering mechanism after the skid started. It seems clear that defendant's car was being propelled by its own motor at the time of, and after, its impact with plaintiff. We hold that from all these circumstances a jury might properly infer that there was negligence in the continued operation or driving of the car across the center line and into collision with plaintiff. The petition charged, among other things, that defendant negligently drove and operated the car onto the east side of the street and into collision; this was, in substance, the assignment of negligence which plaintiff attempted to submit in her Instruction No. 1. No negligence in causing the skid was charged or submitted; nor was any negligence submitted in failing to properly control the car after the skid started. As stated by the Court of Appeals [311 S.W.2d 144]--'Ordinarily, proof of the driving' of a car onto the wrong side of the highway and into collision makes a submissible case of neligence. See also: Hanson v. Tucker, Mo., 303 S.W.2d 126; Harris v. Hughes, Mo.App., 266 S.W.2d 763. This case, on its facts, is rather close because of the absence of more definite and affirmative evidence, but we are constrained to hold that the evidence showed more than a 'mere skidding,' and that an inference of negligence might fairly have been drawn in the respect so charged; and this, outside the realm of 'conjecture.' The driving and operating of a car across the center line properly involves not merely the actual and immediate crossing of the line, but also the mode of driving and operating the car preceding that crossing, and which resulted in the crossing; or, in other words, so much of the entire occurrence, fairly considered, as caused the crossing. Thus, negligence so charged and found might also be properly found to be the proximate cause of the injury. Upon a proper submission of this case a jury might find that a purely accidental skidding was the proximate cause, but that is not for our determination here. Substantial evidence of negligence in causing the skidding would surely make out a submissible case, and might be found to be the proximate cause; but that specific showing is not, in our opinion, a prerequisite to liability on the particular...
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