Gumm v. Herman, 8448
| Decision Date | 22 February 1966 |
| Docket Number | No. 8448,8448 |
| Citation | 400 S.W.2d 447 |
| Parties | Carroll GUMM and Grace Gumm, Plaintiffs-Respondents, v. Michael Day HERMAN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Tweedie Fisher, Jefferson City, for defendant-appellant.
Morgan M. Moulder, Camdenton, for plaintiffs-respondents.
In this jury-tried action for the alleged wrongful death of their unmarried daughter, Lorna Lee Gumm, then 16 years of age, when struck by a 1959 Oldsmobile sedan driven by defendant Michael Day Herman, plaintiffs Carroll Gumm and Grace Gumm obtained a judgment for $10,000 against Herman. He appeals.
The accident happened about 4:30 P.M. on Sunday, July 5, 1964, a clear, dry day, on Missouri State Highway No. 7 about 3.4 miles south of Montreal in Camden County, Missouri. At and near the point of accident, Highway 7 has a two-lane blacktop roadway approximately 21 feet in width and, as one of plaintiffs' witnesses aptly described it, 'is just made up of curves and dips.' The tragedy under discussion occurred at the bottom of a hollow between two hills.
Kenneth Jeffries, 20 years of age, had been northbound on Highway 7 in his 1958 Chevrolet convertible with the top down and with four girls as passengers, namely, Lorna Lee Gumm who was riding in the front seat with him, and Joyce Webster, 15 years of age, her invalid sister Judy Webster, and Linda Hanks, who were riding in the back seat. Earlier in the afternoon, Jeffries and his passengers had driven to Richland and thereafter all of them, except Judy Webster, had gone swimming in Seller's Creek. As Jeffries was proceeding north on Highway 7, he met a southbound 1957 Chevrolet convertible with the top down which was being driven by Robert Webster, 18 years of age, a brother of Joyce and Judy Webster, who (as Joyce said) 'was coming to get us.' So, Jeffries and Webster brought their vehicles to a stop 'about straight across from' or 'even' with each other. Plaintiffs' evidence was that Jeffries parked his northbound automobile 'about half off on the (east) shoulder to the right and half of it on the (blacktop) highway' and that Webster stopped his southbound automobile entirely on the blacktop with its right wheels 'possibly six or seven inches' from the west edge thereof. By measurement at the scene of accident on the Sunday before trial, Jeffries concluded that the distance between the two automobiles, as they had stopped opposite each other on the date of accident, had been 11 feet. Upon trial, Webster's estimate of that intervening distance between the automobiles was 'approximately 10 or 11 foot.' 'A few seconds' after the automobiles had stopped, Joyce Webster 'went over the (right) side' of the Jeffries automobile and 'went around the front' of it to the left door, for the purpose of assisting her invalid sister, Judy, in transferring from the Jeffries automobile to the Webster automobile. And, although all occupants of the two automobiles who appeared as witnesses professed complete ignorance as to when or how Lorna Lee Gumm alighted from the front seat of the Jeffries automobile and reached the point where she was struck, the fact of the tragedy itself leaves no room for doubt but that she did alight therefrom and did move across the blacktop roadway to the west shoulder.
With the stage thus set for disaster, it was not long in striking. After the two automobiles had been standing for 'about 25 or 30 seconds,' the southbound 1959 Oldsmobile sedan driven by defendant Herman came over the crest of the hill to the north, Herman, then 23 years of age, in military service and stationed at Fort Leonard Wood, was returning from a weekend visit at the home of his parents near Boone, Iowa. Two young men also stationed at Fort Leonard Wood, who lived in Iowa and had made the weekend trip with Herman, were riding as passengers in the Oldsmobile.
Plaintiff's witnesses testified to the following state of facts. The sight distance from the Jeffries and Webster automobiles to the crest of the relatively steep hill north of those standing vehicles was estimated by the investigating trooper at 375 to 400 feet and by other witnesses at 400 to 425 feet. As defendant's southbound Oldsmobile came over the crest of the hill, it was traveling 'about' 90 to 95 miles per hour. At that time, Joyce Webster, the 15-year old passenger who had alighted from the Jeffries automobile, was standing either between the two automobiles and 'right up against' the driver's or left door of the Jeffries convertible (as both Jeffries and Robert Webster testified) or behind that vehicle at a point to which she had run when she had heard defendant's approaching southbound Oldsmobile (as she testified).
Almost immediately after the southbound Oldsmobile came into view, defendant applied the brakes, the tires commenced to 'squeal' and 'scream' on the blacktop, and the rear end of the automobile began to skid or slide 'back and forth' or (to borrow the graphic nomenclature of plaintiffs' counsel) it 'fishtailed.' About halfway down the hill (as evidenced by the skidmarks) the rear end of the Oldsmobile swung onto defendant's right-hand (i.e., the west) shoulder of the highway and continued moving in a counter-clockwise direction so that, as the entire automobile skidded downgrade, 'the back wheels got farther away from the front wheels' and closer to the sharp embankment at the west edge of the shoulder. By the time the Oldsmobile reached the rear end of the Webster convertible which, in the meantime, had begun to move forward (toward the south) slowly but had traveled no more than one car length, the Oldsmobile was 'approximately crosswise.' The left inside headlight on the Oldsmobile struck the right rear fender of the Webster automobile and, about the same time, the right front door of the Oldsmobile (skidding sidewise) struck Lorna Lee Gumm, then standing on the west shoulder near the right rear portion of the Webster automobile, and the rear end of the Oldsmobile dropped off the edge of the west shoulder. Carrying Lorna with it, the Oldsmobile went down the west embankment and came to a stop some 90 feet from the point of impact, headed back toward the north or northeast. Lorna was dead by the time an ambulance and physician arrived.
The shoulders of the highway at the point of accident were covered with vegetation. Robert Webster, the only witness on this point, estimated the width of each shoulder at nine feet. On cross-examination, Webster quickly admitted that he knew that he should not have parked on the traveled roadway, and Jeffries grudgingly 'guessed' that he knew the same thing. Plaintiffs originally sued Webster and Jeffries as well as Herman, but on December 8, 1964, the day before the case went to trial, they dismissed without prejudice as to the first two. This, for the reason (so plaintiffs' counsel emphatically told the jury in his final argument) that, when the depositions of those defendants had been taken, 'it was revealed * * * that they had 11 feet remaining between their automobiles, that there was a distance for almost two automobiles to pass between them.'
Defendant Herman testified that, as he crested the hill, he was driving 58 to 60 miles per hour; that he immediately 'saw two cars blocking the road and some people standing around them'; that, although he could not definitely 'place' any of those persons except one 'standing on the road between the two cars,' nobody was, at that time, on his right-hand (i.e., the west) shoulder; that, since he could not have driven his Oldsmobile between the two automobiles blocking the road, he 'put on the brakes and tried to get off on the (west) shoulder of the road hoping that I could go around on the right on the shoulder'--'trying to avoid everything in front of me'; and that 'I had already applied the brakes and had tried to get my car over on the shoulder before I ever saw this girl (Lorna) run out in front of me.' After the brakes had been applied, he 'felt the car start to slide' and, when the rear end went onto the shoulder, the Oldsmobile 'was half turned broadside' and went out of control. As to his automobile having skidded on the blacktop, Herman suggested that 'it was a warm day and new blacktop * * * sweats and it * * * could very easily have been somewhat slick from the oil or from the bits of oil on it.'
No question is raised as to the submissibility of plaintiffs' cause of action but we have included considerable evidentiary detail to show the factual backdrop against which the case was given to the jury. On this appeal, defendant's primary thrust is against instruction 2, the only verdict-directing instruction given at plaintiffs' request. Mindful that this case was tried in December 1964 under our former instruction practice and convinced that quotation of instruction 2 in its entirety is unnecessary to proper understanding of our subsequent discussion and would contribute nothing to legal literature or learning, we do not expand this opinion by such quotation of this instruction which covers more than two full pages in the transcript. Without criticism of or reflection upon plaintiffs' capable counsel, we observe in passing that instruction 2, under our former practice not unusual in its length or complexity, provides an excellent example of the perplexing problems which finally drove the bench and bar to MAI.
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