Greenwood v. Vanarsdall

• Decision Date: 03 April 1962
• Docket Number: No. 8023,8023
• Citation: 356 S.W.2d 109
• Parties: Orien GREENWOOD, Plaintiff-Appellant, v. Jack Anthony VANARSDALL, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 109

356 S.W.2d 109

Orien GREENWOOD, Plaintiff-Appellant, v. Jack Anthony VANARSDALL, Defendant-Respondent.

No. 8023.

Springfield Court of Appeals, Missouri.

April 3, 1962.

J. W. Grossenheider, Lebanon, for plaintiff-appellant.

Baker, Brandom, Saeger & McElligott, Lawrence W. Saeger, Edmond J. McElligott, Kansas City, for defendant-respondent.

RUARK, President Judge.

This is an appeal from an order granting a new trial after plaintiff's verdict.

Plaintiff's cause of action was based upon the proposition that the defendant drove at a high and dangerous rate of speed at night, down a hill, and around a curve, thereby causing the defendant's car to go over and into the ditch at the side of the road; that people congregated at such location; that this created a hazardous situation; that later the car in which plaintiff was riding came along; that the driver of plaintiff's car, in order to avoid striking people gathered on the road, ran it off the road and into a culvert, thereby causing plaintiff's injuries.

The incident occurred on Missouri State Highway 32 in Laclede County about seven miles from Lebanon. ¹ The road was 21 feet wide, paved with blacktop. The pavement was dry. Approaching the scene from the east, some distance, perhaps a quartermile east, 'You come over a hillcrest and then the road straightens out. For that matter, it's straight at that point and had been for some time. It goes down to somewhat of a dip, they over another little hillcrest down this dip where the accident occurred, and down a curve to the left at the same time.' We are unable to say from the record how steep or gradual the slope is coming off 'another little hillcrest,' nor how wide, sweeping, or abrupt the curve.

At any rate, about midnight defendant, in his car, with passengers (the number we do not know), came from the east over the hillcrest, down this dip and curve, went off the road and turned upside down in the ditch on the north side. There is no evidence as to what, if any, damage was suffered by defendant's car. There was no apparent injury to the defendant or his passengers. However, his car left two skid marks commencing somewhere up the road to the east, apparently near the crest of the rise. One mark was a short one, but the other one, presumably from one of the left tires, continued down the right edge of the blacktop for a distance of 123 yards to a point where (presumably) the can ran into an abutment of a culvert and turned over in the ditch. The state highway trooper said he talked to defendant afterwards and that there was an odor of alcohol on his breath but that he observed no 'impairment' in the defendant. This we believe completes what the record shows of defendant's participation in the incident.

Now to plaintiff's participation: In the late afternoon he went uptown, in Lebanon, in search of his companion of the night before, located him at a tavern, and, after spending some time (unknown) there, went 'riding around' in plaintiff's car. Eventually plaintiff and the companion stopped at a tavern on Highway 32, where they got some gas and drank the proverbial two bottles of beer. Then they proceeded on west toward the scene of the accident, the companion driving, plaintiff dozing beside him in the front seat. At about 1:00 a. m., or approximately 55 minutes after defendant's accident, they came over the crest of the hill at a speed which was 70 mph or 50-55 mph, depending upon which of plaintiff's witnesses is to be considered most favorable. At that time the state trooper's car, with a revolving red turret light, was parked on to the west of defendant's car in a driveway. Also parked somewhere near, 'down quite a ways,' but not on the pavement, were two or three other cars. The state trooper and four or five other men, perhaps more, were 'kinda stringing up the road' east of the defendant's upended car. The state trooper was checking the skid marks left by defendant's car. He and at least one other man had a flashlight. They saw the lights of plaintiff's car come over the far rise, go down out of sight in the dip, then come over the last one. Those with flashlights waved them and then, without ceremony, scrambled across the ditch. Plaintiff's companion driver says that when he came over the crest of the hill he first saw the patrol car 'dome light' (at 300-320 yards), then when his lights shone down he saw three persons 'right in the middle of my lane' and not over 75 feet away. 'I seen these three boys in the road and I hit my brakes and cut her to the left--hit my brakes hard--it went into a skid with me.' He did this because, 'Well, I'd had to hit them [the boys] before I coulda got stopped.' In his skid, plaintiff swerved to the right off the edge of the pavement, then to the left side, and finally over an embankment, where he struck a culvert with considerable force and went into the ditch. The skid marks of plaintiff's car on the highway extended 110 yards. In such collision, plaintiff's car was sufficiently demolished that he 'junked it out, salvaged it,' and plaintiff received serious injuries. ²

On such testimony the jury returned a verdict for plaintiff in the amount of $5425. Thereafter defendant filed a motion for judgment notwithstanding verdict and, in the alternative, a motion for new trial. The trial court overruled the motion for judgment but sustained the motion for new trial on two grounds, (a) the evidence was insufficient to support plaintiff's main instruction, which submitted the fact that defendant drove at a high and dangerous rate of speed, and (b) the evidence was insufficient to support submissions as to defendant's negligence having been the proximate cause of plaintiff's injuries. The plaintiff has appealed; the defendant has not.

We find no record which shows that respondent pleaded or attempted to plead contributory negligence.

Was there sufficient evidence to make a submissible case on the question of whether defendant negligently drove at a high and dangerous rate of speed? Our conclusion is in the negative.

Excessive speed depends upon the circumstances existing at the time and place of the incident. Steele v. Goosen, Mo., 329 S.W.2d 703, 711; Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118. It is frequently stated that skid marks alone and in and of themselves are not usually proof of negligence, ³ (although one may envision a situation where skid marks alone would be mute testimony to a very high rate of speed); for, it is said, the mere skidding of an automobile is as consistent with care as with negligence. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876; Neely v. Freeze, 240 Mo.App. 1001, 225 S.W.2d 144, 154. Negligence is never to be presumed (Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78, 82; White v. Barkovitz, Mo.App., 254 S.W.2d 291, 294), but all cases hold that excessive speed may be proved by circumstances, and the skidding, when combined with surrounding circumstances, may be sufficient to justify the inference of a high and dangerous rate of speed. Russell v. Kotsch, Mo., 336 S.W.2d 405, 409; Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433, 437; Lyon v. Southard, Mo., 323 S.W.2d 785, 787; Bear v. Devore, Mo.App., 176 S.W.2d 862, 864, 177 S.W.2d 674, 676; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144; Mo., 319 S.W.2d 549, 551.

Appellant points to the length of defendant's skid marks, in combination with the lay of the road, that is, the crest of the slope and the curve below it. As to the length of one skid mark we have definite evidence (123 yards). But it is worthy of note that, although one skid mark (apparently just after the defendant came over the crest) was short, the other (the long one) continued down the right edge of the pavement to the place where defendant's car was found. What inference is to be drawn from that? Did defendant attempt to apply the brakes as he started down the curving slope? If he did, was it because he was driving too fast? Or was it because, driving at a normal speed, he was confronted with the curving slope and desired simply to reduce his speed? Or did he have a deflated tire or a blowout? And was he trying to reduce his speed gradually? Or was it because of some traffic condition--another car? Or what? Did the brake on one wheel lock and the others run freely? Or was some other mechanical failure responsible? Which of these is so probable that it reasonably excludes all others? What would one skid mark, going downhill on a curve, point to and establish with reasonable certainty as the speed at the beginning point? 'You pay your money and take your choice,' and everyone is entitled to his own guess; but we cannot permit a man to be guessed into liability.

In order that negligence may be inferred from the circumstances, the evidence must be such as to exclude guesswork, speculation, and conjecture. Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Berry v. Harmon, Mo., 323 S.W.2d 691, 695; Ruby v. Clark, 357 Mo. 318, 208 S.W.2d 251, 254. And to remove the case from the realm of speculation the circumstances must be such that the party having the burden of proof has facts which give more than an equal basis for one of two or more inconsistent conclusions. Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670; Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, 670; Helton v. Huckeba, supra, 276 S.W.2d 78, 82. The conclusion reached must be the one which is 'more reasonable and probable' (Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 100), 'reasonably follow[s]' (Foster v. Sacco, Mo.App., 343 S.W.2d 171, 173), and 'reasonably eliminate[s]' the probability of any other source or cause. Miller v. Sabinske, Mo.App., 322 S.W.2d 941, 946.

Plaintiff makes some comparison between his car, which skidded 110 yards down the same grade, and defendant's car, which skidded 123 yards. The plaintiff's car was a 1953 Olds 'in perfect condition.' There is no...