Golden v. Onerem

• Citation: 123 S.W.2d 617
• Decision Date: 05 December 1938
• Docket Number: No. 19114.,19114.
• Parties: GOLDEN v. ONEREM.
• Court: Court of Appeal of Missouri (US)

123 S.W.2d 617

GOLDEN v. ONEREM.

No. 19114.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Circuit Court, Worth County; Thomas A. Cummins, Judge.

"Not to be published in State Reports."

Action by Edward Golden against J. C. Onerem for injuries sustained in an automobile collision. The defendant filed a counterclaim. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded.

Strop & Strop and Landis & Landis, all of St. Joseph, and John Ewing, of Grant City, for appellant.

Cross & Cross, of Lathrop, and Du Bois, Miller & Beavers, of Grant City, for respondent.

CAMPBELL, Commissioner.

This is an action for damages for personal injuries. The defendant filed an answer and counterclaim. The jury returned a verdict for plaintiff in the sum of $2,500 and found against defendant on his counterclaim. Defendant has appealed.

The suit grew out of an automobile collision, occurring on U. S. Highway No. 69 about 9 miles north of Cameron. At this point the highway is paved with concrete 18 feet wide and has shoulders on either side of the pavement 3½ or 4 feet in width. At the point of the collision there was a ditch on each side of the shoulders of the road about 5 feet in depth.

Plaintiff was driving a Plymouth automobile south upon the west side of the pavement, having with him as a passenger, one Farmer. Defendant was driving north on the east side of the pavement in his Lincoln Zephyr, having as a passenger, his wife.

At the trial each of the parties claimed that the collision was due to the fault of the other and each sought damages from the other for the injuries he sustained.

The petition alleges that the collision was caused by defendant operating his car at a dangerous, unsafe and negligent rate of speed in view of the fact that the highway was covered with snow, ice, water and slush, thereby rendering it slippery, treacherous and unsafe; that defendant negligently drove and operated his car in such a manner that it ran from its side of the highway over and onto the other portion, being plaintiff's part of the highway, and thereby caused his car to collide with plaintiff's car.

Plaintiff testified that he was on his way from the factory in Detroit, where he had purchased his car, a Plymouth, to his home in Los Angeles, at the time of the collision, which occurred about 11:30 a. m., January 20, 1937; that "the highway was pretty much covered with ice and the shoulder was very slippery on each side of the highway and thawing"; that just prior to the collision plaintiff was driving south slightly upgrade at a speed of about 25 miles per hour; that defendant was going north on the east side of the pavement, coming down hill; that when about 300 feet south of plaintiff's car, he was proceeding at the rate of speed of 50 or 60 miles per hour; that defendant's car then skidded off the pavement onto the shoulder on the east side and, at about that time, plaintiff turned his automobile to the west; that at the time of the collision the two right-hand wheels of his car and possibly the left front wheel, were off of the highway and on the shoulder, leaving only the left-hand wheels and possibly only the left rear wheel on the pavement. He testified that he got over as far as he dared without going into the ditch; that "I kept two wheels on the pavement to keep from sliding. If I got out any further my left wheels would get out of the track or get in a ditch"; that after defendant's car skidded on to the shoulder on the east side of the road it returned to the pavement, crossed over the center line thereof and struck the left front end of plaintiff's car at an angle of about 45 degrees; that plaintiff was severely injured as a result of the collision, became dazed and did not know what happened thereafter; that defendant's car "took a little sharp turn" just before striking plaintiff's car; that defendant's car was about 300 pounds heavier than plaintiff's car; that at the time of the collision plaintiff's car was going about 15 miles per hour; that he could not tell exactly how fast defendant's car was traveling as it angled across the highway, but his best judgment was that it was going 35 miles per hour. At another place he said his best judgment was that it was going at the rate of 35 or 40 miles per hour; that in his deposition he testified that it was going 45 miles per hour and he would say at the trial it was "going any where to 45" miles per hour; that it seemed to him that it was going 45 miles per hour; that the fact that he was sitting in an automobile directly in the path of the car with the realization that he was liable to be killed, affected his ability to judge the speed of defendant's car.

The collision of the cars caused plaintiff to become dazed and Farmer unconscious and they were unable to testify as to what happened, or as to the position of the cars, after the accident. However, two farmers, Stubblefield and Medley, who were in the vicinity, came up after the collision. Stubblefield, a witness for plaintiff, testified that he found the two front and the right rear wheels of the Plymouth car off of the pavement and on the west shoulder and headed a "little southwest, almost south", the Zephyr was headed about northwest; that: "The extreme left corner of the Zephyr would reach almost across to the west line of the paving. I could see the tracks and tell the path the automobile had traveled. Two wheels of the Zephyr were off on the shoulder. The Zephyr made a track back there leading right up to it. I could see the tracks leading off on the shoulder so there wouldn't be any doubt. I know and am able to state that these tracks were made by the Zephyr car. I then went and looked at the tracks made by the Plymouth car. I could see the tracks it went and trace them on down the road and tell where the car had come. They came right down there straight and then pulled over. I could see the tracks on the west side of the shoulder just before the cars got together. The tracks of the Plymouth had not run on the left side of the center and had not crossed the black line. Mr. Medley was there examining the tracks right along beside me, but I was examining them for my own information and curiosity. I wondered what had caused the accident and I was looking at the cars or tracks. I had never seen either Mr. Golden or Mr. Onerem before. Neither was related to me. I have no interest in this lawsuit."

The other farmer, Paul Medley, testifying for plaintiff, placed the two cars about in the same position as the witness Stubblefield. He stated that the distance between the two cars was 2½ or 3 feet; that he "made an observation to see whether there were any tire tracks made by these cars leading up to the place where I found them. I observed tracks from the Lincoln. About the cross roads (some 80 feet south of the place of collision) the Lincoln went off on the shoulder and it angled across. I saw the tracks and prints of the Plymouth behind it just where it turned off on the shoulder, just a short distance, about the length of a car. I did not see any tracks that the Plymouth had been driving over on the right hand side of the highway".

Defendant's testimony was to the effect that he approached the point of the collision at a speed of about 25 to 28 miles per hour; that he saw the Plymouth car coming towards him possibly a block and a half away; that at that time it appeared to him to be out of control, "kind of a curve or bend, and I believe he was driving quite fast and put on the brakes"; that the witness drove upon the shoulder to the east of the pavement, getting his two right wheels off on the shoulder, as the Plymouth came toward him; that the Plymouth got on to his side of the shoulder and the defendant turned to the left in an effort to avoid the Plymouth and the two cars collided; that at the time of the collision his car was in the lane on the east side of the pavement headed north angling "a little on the highway" and the Plymouth car was headed toward his car "on a line on my side"; that "the point of impact was on my own lane on the east side of the road. His left front fender got my car practically in the center. From that point on I don't know where the cars hit"; that as the car of the witness went off on to the shoulder he naturally slowed down.

Defendant's wife, in testifying for the defendant, said she was in the Lincoln Zephyr at the time of the collision; that the Plymouth car was on the east side of the highway "just before the collision. It is hard to say which side of the center line of the highway the collision occurred on". She also said the collision occurred on the east side of the highway.

According to plaintiff's testimony he was driving his Plymouth automobile in a southerly direction up a grade. He slowed his car to a speed of 18 miles per hour when he saw defendant's car approaching him, apparently out of control. Defendant's car weighed about 300 pounds more than his. Defendant was coming down the highway at a speed of 50 or 60 miles per hour when plaintiff first saw the former's car and defendant's car skidded on to the east shoulder, then came back and struck plaintiff's car at an angle of about 45 degrees. Plaintiff was unable to state exactly the speed of defendant's car, but his testimony shows, beyond question, that it was going at a high rate of speed at the time of the collision. The pavement was 18 feet in width with shoulders from 3½ to 4 feet wide on each side. On plaintiff's side there was a ditch 5 feet in depth. With the exception of a narrow track, where the wheels of automobiles had worn away the ice on each of the two traffic lanes, the entire highway and shoulders at the point in question were covered with ice and very slippery.

Plaintiff testified that he was able to get his two right-hand wheels off the highway, and possibly the left front wheel, and on to the shoulder, leaving only his left...