Gooch v. Avsco, Inc.

• Decision Date: 11 July 1960
• Docket Number: No. 1,No. 47729,47729,1
• Citation: 337 S.W.2d 245
• Parties: Doris I. GOOCH, Respondent, v. AVSCO, INCORPORATED, and Robert L. Fetters, Appellants
• Court: Missouri Supreme Court

Page 245

337 S.W.2d 245

Doris I. GOOCH, Respondent, v. AVSCO, INCORPORATED, and Robert L. Fetters, Appellants.

No. 47729.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Stephen R. Pratt, Thomas E. Hudson, Hudson, Cavanaugh & Fox, by Thomas E. Hudson, Kansas City, for respondent.

Robert E. Coleberd, Arthur R. Kincaid, Liberty (Hale, Coleberd, Kincaid & Waters, Liberty, of counsel), for appellants.

HOLLINGSWORTH, Judge.

This is an action for damages for personal injuries sustained by plaintiff in the collision of three northbound in line motor vehicles on the ASB Bridge which crosses the Missouri River and connects Kansas City and North Kansas City. Plaintiff sued Donald Hendricks, the driver of a two-door sedan in which she was riding, Thomas Schaeffer, the driver of a pickup truck preceding the Hendricks sedan, and Avsco, Incorporated, and its employee, Robert L. Fetters, the driver of Avsco's station wagon following the Hendricks sedan.

The jury returned a verdict for plaintiff against defendants Avsco and Fetters for $12,000, and a verdict for defendants Hendricks and Schaeffer. Following judgment rendered in accordance with the verdicts, defendants Avsco and Fetters filed an after-judgment motion to set aside the judgment rendered against them and a motion for new trial on the issue of liability alone. These motions were overruled. Avsco and Fetters (to whom we henceforth refer simply as 'the defendants') appealed. Inasmuch as the amount in dispute, exclusive of costs, exceeds $7,500 and the appeal herein was taken prior to January 1, 1960, jurisdiction lies in this court. Section 477.040 RSMo 1949, V.A.M.S., as amended by Laws 1959, S.B. 7, Sec. 1.

Defendants here assert (1) that no submissible case was made against them; (2) error in the giving of plaintiff's verdictdirecting instruction; and (3) error in the admission of two photographs of plaintiff in traction devices while confined in the hospital.

The ASB Bridge crosses the Missouri River in a north-south direction. The surface of the bridge is blacktop and asphalt. It has four traffic lanes, two east lanes for northbound and two west lanes for southbound traffic. There is a superstructure at the south end of the bridge, north thereof is an open space overhead, then a second superstructure. Third Street is the first east-west street south of the bridge approach.

The collisions occurred between 2:00 and 2:30 p. m., on October 23, 1957, at which time a drizzling rain was and for some time had been falling, making the streets and bridge surface wet and slick. Plaintiff, aged 40 years, a resident of Kansas City North, was riding homeward in a sedan driven by her neighbor, Hendricks, from the DiRenna Clinic in Kansas City, where she had been receiving post-operative care following a prior abdominal operation. They entered the south approach of the bridge at Third Street and drove northward on the inside northbound traffic lane to the point of collision.

Plaintiff testified: The car in which she was riding was traveling 20 to 25 miles an hour. After they had passed the superstructure, she felt the application of Mr. Hendricks' brakes, looked forward and saw the pickup truck, driven by Schaeffer, 25 to 30 feet ahead. It was in the inside northbound lane immediately in front of them and was 'sliding' at a slight angle toward the left; probably the left front wheel and left front fender extended west of the inner northbound lane in which both cars were proceeding. The Hendricks car collided with the rear of the pickup truck. The Hendricks car was then struck in the rear by the Avsco (Fetters-driven) station wagon. The latter collision followed closely upon the first one. The impacts threw her forward, 'flipped' her back and forth in the seat. She became nauseated, nervous and scared, but did not, at that time, think she was seriously injured. She did not see or hear any warnings or signals, mechanical or manual, during the course of the aforesaid collisions. Another neighbor and friend of her family came along and returned her to the hospital.

When plaintiff was returned to the clinic, it was found that she had sustained certain superficial injuries and also injuries to her back. She returned to her home, thereafter returning periodically to the clinic for treatment of her back. Later she was placed in pelvic traction for a period of ten days. In November, 1958, it was suspected that she had suffered an injury to her spine as a result of trauma sustained in the collisions. An operation was performed, during which a degenerated disc was discovered and removed from the lower lumbar region of her spine, which condition, the medical testimony showed, was the result of trauma sustained in the collisions.

Troy F. Campbell, a member of the Kansas City Police Department, testified in behalf of plaintiff: He arrived at the scene of the collision at about 2:45 p. m. It occurred on the ASB Bridge approximately two and one half blocks north of Third Street. Schaeffer, the driver of the pickup truck, told the witness that he had stopped his truck when he was struck from the rear by the Hendricks sedan. Hendricks said that he was 40 to 50 feet behind the pickup truck when he first observed it had stopped in the line of traffic and that he was traveling at a speed of 28 miles an hour when he was forced to apply his brakes to avoid colliding with the rear of the truck, but could not avoid skidding into it. Fetters told the witness that he was 40 to 50 feet behind the Hendricks car when he first became aware of the danger of striking it, at which time he (Fetters) was traveling 30 miles an hour, and had slowed to 15 miles an hour when he came into collision with Hendricks' car.

Plaintiff, without objection on the part of counsel for appellant-defendants, offered and the court admitted in evidence portions of depositions given by the then defendants, Schaeffer and Hendricks. Following the reading of the portions of the depositions thus admitted, plaintiff's counsel stated that he wished to read to the jury the whole of Fetters' deposition, to which counsel for the appellant-defendants announced, 'I'm not going to object to it. That's the only evidence I have. Mr. Fetters isn't here and I can't find him either.'

The portions of the deposition of Schaeffer, driver of the pickup truck, read to the jury, insofar as material, stated: As he drove northward across the bridge at a speed of 25 to 30 miles per hour, there was a line of 8 to 12 cars ahead of him. He saw the brake lights of the car immediately ahead of him go on. It was then a distance of 75 to 80 feet from him. He applied his brakes and slid to a stop about 10 feet from the vehicle in front of him, which was also stopped. The car to his rear (Hendricks') then forcefully struck the rear of his car and pushed it until it touched the car ahead of him.

Hendricks' deposition, insofar as material, stated: He was going northward on the bridge at a speed of 20 miles an hour when he saw the pickup truck as it began to slide to a stop, 40 to 50 feet ahead of him. He immediately applied his brakes and had reduced his speed to five miles an hour when he came into contact with the pickup, and was immediately thereafter struck in the rear by the Fetters station wagon.

The Fetters deposition, insofar as material, stated: Fetters was engaged in his duties in behalf of Avsco when the collision occurred. It had been drizzling rain most of the day. The Hendricks sedan came across from the outer northbound lane and proceeded northward on the inner northbound lane immediately after crossing the intersection at Third Street. The collision occurred about a long city block north of the Third Street intersection. There was a line of traffic ahead of the Hendricks car.

'Q. Will you describe for us how the accident occurred? A. Well, after Mr. Hendricks got into lane number two, there was a line of traffic, when a car is in front of you you can't tell how many are in front of you, you can't see but two or three cars ahead of you, that is, you can see parts of them--we were traveling along and my first indication of any stopping was when I saw Mr. Hendricks' brake lights come on. At that instant, I applied my brakes and started to stop which resulted in skidding, and I was skidding approximately the same time he was.'

Both Hendricks and Fetters were proceeding at about the same speed--25 to 30 miles an hour. Hendricks was between 42 and 54 feet ahead of Fetters. Hendricks' brake lights came on, Fetters removed his foot from the accelerator and applied his brakes, making a forceful application, more or less locking the wheels, in order to stop as quickly as possible. The Hendricks car came to a stop about 15 feet ahead of Fetters and Fetters' station wagon slid into it; the Hendricks car (Fetters said) probably had more braking power than Fetters' station wagon, which slid about 25 feet after Fetters applied his brakes.

'Q. I would like to ask if you have a judgment as to the distance in which you could have brought that vehicle to a stop under the conditions that existed at the time and place, taking into account safety to yourself and possengers, traveling at a speed of thirty miles an hour? A. It would probably take thirty or thirty-five feet.

'Q. That would be your best judgment? A. Yes.

'Q. In that connection, do you have in mind the so-called reaction time, getting your foot off the accelerator on to the brake? A. Of course, that would probably take ten feet.

'Q. Do you add that to the number of feet you gave me? A. It would be plus that.'

At the close of all of the evidence, plaintiff was permitted to amend her petition by interlineation to allege an added specification of negligence as against all of the then defendants, to wit: "in following too closely in traffic the vehicles ahead upon the roadway and particularly the vehicle of defendant Schaeffer and in failing to keep and maintain a sufficient...