Friederich v. Chamberlain

• Citation: 458 S.W.2d 360
• Decision Date: 12 October 1970
• Docket Number: No. 54622,54622
• Parties: Gary Jay FRIEDERICH and Gail Dean Friederich, Plaintiffs-Respondents, v. Noah Lee CHAMBERLAIN and Nora A. Chamberlain, Defendants-Appellants.
• Court: United States State Supreme Court of Missouri

Page 360

458 S.W.2d 360

Gary Jay FRIEDERICH and Gail Dean Friederich, Plaintiffs-Respondents, v. Noah Lee CHAMBERLAIN and Nora A. Chamberlain, Defendants-Appellants.

No. 54622.

Supreme Court of Missouri, En Banc.

Oct. 12, 1970.

McQuie & Deiter, Montgomery City, for respondents.

Jerome W. Seigfreid, Edwards, Seigfreid & Runge, Mexico, C. P. Lehnen, Wellsville, for appellants.

DONNELLY, Presiding Judge.

This is an action for damages resulting from a vehicular collision, which occurred on September 14, 1967. The Friederichs sued Noah Chamberlain. The Chamberlains counterclaimed against Gail Friederich. The trial court, at the close of all the evidence, sustained Gail Friederich's motion for directed verdict. The Friederichs' case was submitted to the jury, which returned a verdict for Noah Chamberlain. The Chamberlains have perfected an appeal to this Court.

The essential question on this appeal is whether the trial court erred in sustaining the motion for directed verdict on the ground that the Chamberlains failed to make a submissible case against Gail Friederich.

'In ruling the issue presented we must give * * * (the Chamberlains) the benefit of * * * (their) evidence and every inference of fact in * * * (their) favor, which a jury might, with any degree of propriety, have inferred, since a verdict may be directed against * * * (the Chamberlains) only when the facts and inferences to be drawn therefrom, considered in the light of the rule, are so strongly against * * * (the Chamberlains) as to leave no room for reasonable minds to differ.' Tharp v. Monsees, Mo.Sup., 327 S.W.2d 889, 894.

A collision occurred between an automobile operated by Gail Friederich and a truck operated by Noah Chamberlain, at a point 2.5 miles south of Montgomery City Missouri, on Missouri Route 161, a two-lane blacktop highway, which was wet and slick. The Friederich vehicle was traveling south. The Chamberlain vehicle was traveling north.

The Chamberlains plead and contend here that Gail Friederich was negligent in operating her vehicle on the east half of the highway into collision with the Chamberlain vehicle.

Gail Friederich testified that her car was at all times on her side of the road and that it did not skid before the collision.

Noah Chamberlain testified as follows:

'Q. Now, as you proceeded along and around this curve as you left the bridge, what side of the roadway were you on?

A. I was on my side of the road.

Q. What side would that have been?

A. It would have been the east side.

Q. Did you at any time cross over the centerline?

A. No, sir.

Q. Now, did you see the vehicle that was operated by Mrs. Friederich on that particular occasion? A. I seen a vehicle when I got around 200 or 250 feet from the bridge--I seen a vehicle.

Q. Will you describe to the Jury where that vehicle was when you first saw it and what it was doing?

A. It was about 300 feet from me and it was sideways, sliding down the road sideways.

Q. Now you say it was sliding down the road sideways, in which portion of the highway was it located?

A. Well, it was pretty much on my side of the road.

Q. That would be the northbound lane? A. Yes, sir.

'Q. Will you tell the Jury, did the vehicle continue to slide sideways down the highway? A. It did for a ways.

Q. All right. What did you do when you first saw the vehicle?

A. I got over on the side of the road and blowed my horn and tried to stop.

Q. When you say you got over on the side of the road, tell the Jury where you pulled your wheels with regard to the road?

A. About 6 inches off of the pavement. It wasn't but about 18 inches from the blacktop over to the edge of the fill on the road.

'Q. Mr. Chamberlain, tell the Jury what this car of the plaintiffs did as you observed it? A. Well, it was sliding down the road sideways, then all at once the wheel, it seemed like it hit something and just spun around and hit me.

Q. You say it spun around and hit you? A. Yes, sir.

'Q. Now, Mr. Chamberlain, you stated that you sounded your horn and applied your brakes when you saw her, and pulled to the right?

A. Yes, sir.

Q. How far had your vehicle gotten to the right hand side of the roadway before the collision occurred?

A. Well, I had two wheels off of the pavement when the collision occurred.

'Q. Which direction was her car facing as it slid down the highway? A. Facing the west.

Q. Her car was facing west? A. The front end of her car was in the center of the road and the back end was on the east side.

Q. And the car was facing west? A. Yes, sir.

Q. Now, did it spin around in what direction then--

A. It spun around to the south and into the side of my truck.

'Q. Mr. Chamberlain, did you at any time between the time you left the bridge and the time that the collision occurred cross over the centerline of that highway? A. No sir.

'Q. And do I understand that the first time you saw that car, it was skidding? A. Sideways.

Q. Skidding sideways. Would you say that that car was then out of control? A. I would say so, yes.

Q. That's the very first instant you saw it? A. Yes, sir.

Q. And from the time up until the moment of the collision, it was skidding, is that correct, Sir?

A. Skidding and turning a little bit.

Q. And out of control? A. Yes, sir.

Q. That would be the way you observed it?

A. That's the way I observed it.

Q. So that on the morning of this occurrence, September 14, 1967, you never did see the vehicle of Mrs. Friederich under control?

A. No.'

The first question for consideration is whether the law upon which Gail Friederich's theory of defense is based should be preserved. It is ably articulated in Wray v. King, Mo.App., 385 S.W.2d 831, at 833--835, as follows:

'It is too well settled to admit of doubt that a submissible case cannot be made by proof that defendant's automobile merely skidded or slid into collision with plaintiff's vehicle on the highway, for such a mishap (so the courts hold) may as readily be caused by circumstances beyond defendant's control as by his negligence; hence no inference of negligence arises upon such a showing. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, 63; Evans v. Colombo, Mo., 319 S.W.2d 549, 550; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144; Karch v. Stewart, Mo., 315 S.W.2d 131, 135; Doyle v. Wilmesherrer, Mo., 358 S.W.2d 839, 840. Where the evidence of the skidding is confined to the defendant's case, as where he offers it to explain and excuse the accident, it is unnecessary for plaintiff's verdict-directing instruction to make reference to it, because plaintiff is under no duty to hypothesize or otherwise notice defensive or exculpatory evidence introduced by his adversary (although, of course, he may not so frame his instructions as to preclude the jury's consideration of it when properly submitted in defendant's own instructions). Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1021; Murray v. St. Louis Wire & Iron Co., Mo.App., 238 S.W. 836, 839; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144. But where evidence of the skidding gets into the record as part of plaintiff's own case, he may not ignore it, because, by doing so, he must necessarily assume in his instruction that defendant was in control of the automobile and was consequently responsible for its maneuvers--a thing which the evidence of its skidding tends to refute, or at least to relegate to the realm of speculation and conjecture.

'The result to which these considerations lead in this case (as in all others where evidence of the skidding is adduced as a part of plaintiff's case), and the reasoning by which that result is justified, may be demonstrated in four successive steps:

'(5) (1st) The real issue is not whether defendant 'failed to drive on the right half' of the roadway and 'instead went onto the left side,' but whether he was negligent in doing so. 'The proximate cause of the collision is to be found in the cause of the skidding.' (Italics added). Evans v. Colombo, Mo.App., 311 S.W.2d l.c. 145. That is the 'basic issue.' Karch v. Stewart, supra, 315 S.W.2d l.c. 135.

'(6) (2nd) If defendant was in control of his car at the time it 'went onto the left side' of the highway--that is, if he drove or operated it across the centerline--of course he was negligent. Sec. 304.015(2) V.A.M.S. But if the rear end of his car skidded laterally across the centerline on the icy pavement, and the car continued to slide forward in a sideways position into collision with plaintiff's vehicle, it is obvious he was not in control of it, because automobiles are not so constructed as to make possible their controlled operation in that manner. Doyle v. Wilmesherrer, supra, 358 S.W.2d 841.

'(7--9) (3rd) But the unexplained skidding of defendant's car out of control does not, ipso facto, exculpate him. That fact has been said to give rise to an inference that 'is merely ambiguous,' Branch v. Gordon's Transports, Inc., Mo.App., 375 S.W.2d 418, 423, or to 'two inferences, one of which would support a verdict for plaintiff and the other not,' Evans v. Colombo, Mo.App., 311 S.W.2d l.c. 145. To avoid the possible anomaly of allowing contradictory inferences to be drawn from the same fact we prefer (and believe it is just as accurate) to say that the skidding of defendant's car, standing alone, gives rise to no inference at all. It simply leaves open the question of negligence or no negligence. It furnishes no guide by which that question can be answered one way or the other, but leaves the issue to speculation and conjecture. If the jury is to resolve it intelligently, the additional information suggested by this query must be supplied: Did the defendant, immediately prior to the collision, operate his automobile in such a negligent manner as to cause it to go into a slide and out of control? When the facts developed by that inquiry are analyzed it will be found that in a two-car collision case (to which the res ipsa loquitur doctrine is not applicable, State ex rel....