Gower v. Trumbo

• Decision Date: 03 July 1944
• Docket Number: No. 38771.,38771.
• Citation: 181 S.W.2d 653
• Parties: GOWER v. TRUMBO.
• Court: Missouri Supreme Court

181 S.W.2d 653

GOWER v. TRUMBO.

No. 38771.

Supreme Court of Missouri, Division No. 2.

July 3, 1944.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte and R. E. La Driere, Judges.

Action by Grace Gower against William H. Trumbo for personal injuries sustained in collision between an automobile in which plaintiff was riding as a guest and defendant's automobile. From a judgment for defendant, plaintiff appeals.

Affirmed.

Everett Hullverson, of St. Louis, for appellant.

Wilbur C. Schwartz and Chelsea O. Inman, both of St. Louis, for respondent.

BARRETT, Commissioner.

In this action for personal injuries the jury found for the defendant and the plaintiff appeals.

The plaintiff, Grace Gower, her husband and their child were riding in an automobile driven by William Coghlan. Mrs. Gower sat in the back seat with Mrs. Coghlan and the Coghlan's child. It was Sunday, October 12, 1941, a clear day, and they were on their way to Hermann. The plaintiff and her witnesses testified that as Coghlan's 1941 Nash proceeded down Highway 66 in the outside lane of the four lane highway at a speed of about forty-five miles an hour they observed the defendant's 1930 Chevrolet several blocks ahead in the same traffic lane and traveling in the same direction. When the plaintiff's husband first saw the defendant's car it was two or three hundred feet away. The Chevrolet slowed down some and, when the Nash was about fifty feet away, pulled its right wheels off or to the right shoulder and suddenly, without stopping or signaling, at a speed of five to eight miles an hour, made a sharp U-turn across the highway in front of Coghlan. Mr. Gower says they were about forty feet away when the Chevrolet pulled to the left in front of them. Coghlan said he was driving directly behind the defendant's car at a speed of forty to forty-five miles an hour and blew his horn to pass when the defendant suddenly "pulled off to the side and deliberately came right back into the highway."

The defendant, Trumbo, and his witnesses testified that he "pulled off on the side of the road, not all of the way off the road, but two of my wheels were still on the pavement; and I tilted the car to make the turn and stuck my head out of the window and looked back and there weren't any cars that I felt would interfere with me making a `U' turn, and I proceeded across the highway." Trumbo says he made "just about a complete stop" because he shifted into low gear. When he looked back there were no cars within four or five hundred feet. He drove across the highway from a speed of zero to five or six miles an hour. When his car was "right in the middle of the highway, a little bit over on the other side" with its front wheels across both lanes it was struck by Coghlan's car. There were tire marks in the second traffic lane for a distance of about sixty feet and an expert testified that a car would have had to be traveling at a speed of sixty-five or seventy miles an hour to have made the marks on the pavement. Trumbo's companion, Wheeler, said that just before the front wheels of their car got over the center line of the highway he saw Coghlan's car and it was then in the second traffic lane, about two hundred feet away, and "going over forty-five miles an hour."

The plaintiff submitted the defendant's liability upon the primary assignment and hypothesis of suddenly driving his automobile in front of Coghlan's automobile without warning at a time when it was impossible to avoid a collision. The jury were instructed that the plaintiff was a guest and that her host's negligence was not imputable to her. They were told that the defendant was liable even though the collision was caused by the concurrent negligence of Coghlan and the defendant and that the defendant could not be exonerated unless the jury found that he was not negligent "as that negligence is defined and referred to in other instructions" or that his negligence "did not contribute to cause the plaintiff's injuries." Two instructions exonerated the defendant of liability if the jury found that Coghlan's failure to swerve his automobile to the right or his driving at an excessive and dangerous rate of speed under the circumstances was negligence and the "sole cause of the collision mentioned in the evidence, and that the collision was not caused by or due to any negligence of the defendant Trumbo in any of the particulars submitted to you in other instructions herein."

The plaintiff contends that a "sole cause" instruction was not permissible under the defendant's evidence and that in any event the two instructions given were erroneous because they did not require a finding of causal connection or proximate cause between the hypothesized speed or failure to swerve and the collision.

There is no force in the appellant's argument that the defendant was guilty of negligence as a matter of law nor in the respondent's contention that the plaintiff by submitting the defendant's negligence to the jury as a question of fact is now in no position to claim that the defendant was negligent as a matter of law. The plaintiff was bound in any event to submit her case to the jury even though they only passed upon and considered the credibility of her evidence. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. The question is whether the defendant's evidence presents a state of facts which if found by the jury would absolve him of fault and consequent liability and demonstrate as a matter of fact, if true and found, that some other person was the "sole cause" of the injuries complained of. If he does present such a state of facts he is entitled to the same right accorded a plaintiff on his facts and his theory of liability, that is, to have them hypothesized in an instruction and thus given an opportunity to have the jury find them if the jury is persuaded of their truth and so absolve the defendant of liability. Semar v. Kelly, Mo.Sup., 176 S.W. 2d 289; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. We have set forth the defendant's evidence and if as he says, before he made the U-turn, he looked back and there were no cars within four or five hundred feet and he drove across the highway and was struck by Coghlan's car after the front wheels of his (Trumbo's) car were over the center line of the pavement the jury could reasonably find that Coghlan could have swerved to the right or have driven around to the right of Trumbo's car. It is true that no witness positively testified that Coghlan could have driven to the right and that a collision would have been avoided had he done so, but there were four traffic lanes and if the front of Trumbo's car was over the center line there was space to the right in which to avoid the collision. If, as Wheeler said, just before Trumbo's front wheels got over the center line Coghlan was in the second traffic lane "about two hundred feet away then" Coghlan must have been traveling at a terrific speed to have collided with Trumbo's car. Whether these versions of the matter were true or not was for the jury but they do present a sole cause situation on the facts as Trumbo, though making a U-turn, would not have been negligent and Coghlan's speed or failure to turn would have been the negligent cause of the collision. Stanich v. Western Union Telegraph Co., 348 Mo. 188, 153 S.W.2d 54; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853.

The appellant's argument that the sole cause instructions are erroneous in not requiring a causal connection between the negligence hypothesized and the injury is that they should "require a finding in some manner as to how the excessive speed," or failure to swerve, "could have...