Glowczwski v. Foster, 31009

Decision Date12 June 1962
Docket NumberNo. 31009,31009
Citation359 S.W.2d 406
PartiesAnthony GLOWCZWSKI (Plaintiff) Respondent, v. William Edgar FOSTER (Defendant) Appellant.
CourtMissouri Court of Appeals

Adolph K. Schwartz, St. Louis, Chapman, Schwartz & Chapman, St. Louis, of counsel, for appellant.

Padberg & Raack and Godfrey Padberg, St. Louis, for respondent.

SAMUEL E. SEMPLE, Special Judge.

This is a damage suit arising out of an automobile collision on Kingshighway a short distance south of Barnes Hospital in St. Louis, Missouri. Plaintiff obtained a verdict for $7,500, and from the judgment rendered thereon defendant has perfected an appeal to this court.

Kingshighway, at and near the point of the accident, is an eight lane avenue running generally north and south with a raised concrete divider separating the north from the southbound traffic. On November 18, 1959, at approximately 10:30 A.M., plaintiff was proceeding north on Kingshighway traveling in the lane next to the concrete divider in the center of the street following a car driven by an elderly lady. As the two vehicles approached the first crossover of the concret divider south of Euclid Avenue, the elderly lady signaled a left turn and came to a stop at the crossover with plaintiff bringing his automobile to a stop behind her vehicle. After she had waited fifteen or not more than twenty seconds for the southbound traffic to clear, she started to make a left-hand or U-turn at the crossover. At this time, before plaintiff started to move ahead, his vehicle was struck from the rear and knocked forward about one car length by an automobile driven by defendant. The first vehicle driven by the elderly lady had moved out of the way through the crossover and was not struck by plaintiff's vehicle when it was knocked forward by the impact. Plaintiff stated that he did not see defendant's car prior to, or at the time of the collision.

The only evidence offered in the case as to what the defendant did prior to the accident is the testimony of defendant himself. Defendant testified that he turned on to Kingshighway from Chouteau about two blocks south of the scene of the accident and pulled into the same lane of traffic traveled by plaintiff next to the center divider. Plaintiff put in evidence as an admission against interest a portion of a deposition made by defendant wherein defendant stated that he first saw plaintiff's car when it was a block away, and at that time plaintiff's vehicle was stopped and the car ahead of the plaintiff was making a left-hand turn. Defendant in testifying in his own behalf at the trial stated that he first saw plaintiff's car a block and a half away following another vehicle and plaintiff was slowing for a stop; that there were no cars in the same lane between defendant and plaintiff and that he did not see plaintiff's vehicle actually stopped until he was only about fifty feet away. Defendant further testified on direct examination that he was traveling about twenty to twenty-five miles per hour when he saw plaintiff's car was stopped; that he started slowing down and braking and the car slid on the street which had been freshly watered with a water truck and that he bumped into the back end of plaintiff's car at a speed of about ten miles per hour. Defendant further testified on direct examination that he did not notice the water on the pavement until after the accident but on cross-examination stated that he noticed the pavement was wet prior to the collision. Defendant further testified on cross-examination that he did not put his foot on the brake until he got within fifty feet of plaintiff and ran straight into the back end of plaintiff's vehicle.

Defendant assigns as error the action of the trial court in overruling his motion for directed verdict for the reason that plaintiff did not make a submissible case under his petition and main instruction, which were on the theory that the defendant drove and allowed or permitted his automobile to collide with the rear of plaintiff's vehicle. Defendant contends that all of the evidence showed that the accident was actually caused by defendant skidding into plaintiff. Defendant argues that plaintiff produced no evidence of any pleaded negligence and did not instruct on any theory of pleaded negligence and then concludes that the accident was caused by skidding and that mere skidding does not make a submissible case if there is nothing more, citing Evans v. Colombo, Mo., 319 S.W.2d 549, and cases therein cited.

We believe that plaintiff did make a submissible case under what is sometimes called the 'rear end collision' doctrine which recognizes that if one person has his vehicle in a portion of the highway where he should have it, or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; McVey v. St. Louis Public Service Co., Mo.Sup., 336 S.W.2d 524, 527; Boresow v. Manzella, Mo., 330 S.W.2d 827; Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302, 305; Highes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360.

In this case, plaintiff's evidence showed that his vehicle was in a position on the street where he was entitled to have it, i. e., stopped behind a vehicle in the northbound lane which had halted to permit traffic in southbound lane of street to clear before making a left turn; that plaintiff was stopped in such position for a period of fifteen or at a maximum of twenty seconds and then was struck in the rear by an automobile operated by defendant traveling in same northbound lane of traffic occupied by plaintiff. Plaintiff in presenting his case offered no evidence that defendant skidded into his vehicle. The only evidence of skidding was defendant's own testimony that his car slid on the wet pavement. This was not a part of plaintiff's case but was apparently offered as a defense to plaintiff's case. Evans v. Colombo, supra, and other cases cited by defendant are not in point as they involved situations where plaintiff as well as defendant presented evidence of skidding by defendant or the fact of skidding by defendant was admitted by plaintiff.

Defendant also contends that plaintiff did not make a submissible case because there was no evidence that plaintiff's head was thrown backward and then forward and thus there was no proximate cause between the casualty itself and any resulting 'whiplash injury.' Such contention is without merit. Plaintiff in describing what happened to him when his stopped car was struck from the rear testified as follows: 'Well, that was something I had never experienced before and it's kind of hard for me to explain it other than the fact that it felt like I was being thrown one way and then another all of a sudden like and actually, when it happened, I didn't know exactly what had hit me or what had happened.' Plaintiff's car was forcibly struck from the rear and knocked forward at least one car length and a cigarette in plaintiff's mouth at time of collision was found in the back seat of the car. The plaintiff apparently was facing forward in the direction his car was headed, as he described in detail the movements of the vehicle in front of him. Plaintiff also testified that his neck started paining him that evening, that his neck was stiff and hurt, that the next day (Thursday) he called Dr. Walker and made an appointment and was examined by Dr. Walker on Saturday. That the pain in his neck did not go away but remains with him constantly. We conclude that the plaintiff's evidence was sufficient to establish the causal connection between the casualty and the plaintiff's injuries described in evidence.

Defendant next assigns as error the giving of Instruction No. 1 which was plaintiff's main verdict directing instruction. Defendant contends that this instruction ignores the admitted factual element of skidding. This contention is not well taken. A careful examination of the record does not disclose any evidence, either direct or circumstantial, offered by plaintiff that defendant's car slid or skidded into plaintiff's vehicle, nor is there anything in the record showing that plaintiff in any way admitted as a fact that defendant's automobile slid or skidded. Defendant again cites the case of Evans v. Colombo, supra, but that case is entirely different on the facts because, as previously stated, skidding was an established fact demonstrated by the evidence of both plaintiff and defendant.

Defendant also contends that plaintiff's Instruction No. 1 fails to hypothesize the fact of skidding and the language of the instruction requiring a finding that defendant 'drove his automobile' and 'allowed and permitted his automobile to overtake and collide with plaintiff's automobile' assumes that defendant drove his automobile and ignored the possibility of an accidental or non-negligent skidding as the proximate cause of the casualty. This contention apparently is made on the theory that defendant's evidence of sliding or skidding is a necessary element which must be hypothesized in the instruction. In support of this contention defendant cites Evans v. Colombo, supra; Karch v. Stewart, Mo., 315 S.W.2d 131; and Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59. These three cases all held that plaintiff's verdict directing instructions were prejudicially erroneous because they did not hypothesize the factual element of skidding. There were cases, however, in which the real issues involved either negligence in causing the skidding or negligence in the operation of a skidding...

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