Hanson v. Tucker, 45852
| Decision Date | 10 June 1957 |
| Docket Number | No. 45852,No. 1,45852,1 |
| Citation | 303 S.W.2d 126 |
| Parties | Maggie E. HANSON, Plaintiff, Respondent, v. Richard Arlen TUCKER, Defendant, Appellant |
| Court | Missouri Supreme Court |
Robert L. Spurrier, Butler, for appellant.
Edward J. Murphy, Butler, for respondent.
Action for damages for personal injuries sustained in a collision of automobiles. Plaintiff had verdict and judgment for $15,000 and defendant has appealed.
Defendant claims error in giving Instruction No. 1, admitting testimony of plaintiff claimed to be mere conclusions, and excessive verdict. The collision occurred on Highway 71 about 10:00 P.M. on July 1, 1955, about four miles south of Butler. The highway had a two lane concrete pavement, 18 feet wide, with gravel shoulders at least six feet wide. Plaintiff said she was driving north at about 35 miles per hour about two feet east of the center line of the pavement, and had just crossed the Possum Creek bridge when she saw several cars come around a curve about a quarter of a mile north of the bridge. One car kept coming towards her and she began to ease over to the east to try to get off on the gravel but couldn't, so she put her brakes on and got her car almost stopped before defendant's car struck it. She did not know how far defendant's car was from her when it came over the center line. Plaintiff's account was corroborated by a truck driver who was driving behind her at the time and had to slow down. (He said he was going 45 miles per hour and plaintiff about 30.) He saw defendant's car gradually bearing to the left, 400 to 500 feet away, then cross the center line and strike plaintiff's car a glancing blow. (He said plaintiff's car was about in the middle of her half of the pavement.) Also a State Highway Patrolman, who came at 10:30 P.M. to investigate the collision, found an area of debris (water and dirt) 'in the approximate center of the northbound lane' and 'a trail of liquid, greenish color', leading from that point to defendant's car in the ditch on the west side of the highway. Both plaintiff and the patrolman observed indications that defendant had been drinking intoxicating liquor and defendant stated to the patrolman that he had been drinking. (Defendant testified he had been drinking beer only.) The patrolman said the collision was about one-tenth of a mile north of the bridge and that the curve was approximately two-tenths of a mile north of the bridge. Because of the above allegations of error, it is unnecessary to state defendant's evidence, except to note that his speed was estimated by him at 45 to 55 miles per hour.
Instruction No. 1 was as follows: 'The court instructs the jury that if you find and believe from the evidence that on the 1st day of July 1955, about the hour of 10 P.M. of said day, plaintiff was operating her husband's automobile in a northerly direction on U S No. 71 Highway in Bates County, Missouri, between Rich Hill and Butler, Missouri, if so, and that while so operating, as aforesaid, Defendant was driving his automobile in a southerly direction at the aforementioned time and place, if so, and that said automobiles then came into violent collision, and if you further find and believe from the evidence that as Defendant's automobile approached the automobile Plaintiff was driving, coming from the opposite direction, that the Defendant's automobile was travelling on the East or Left Hand side of the highway and toward the automobile Plaintiff was driving, if so, and if you further find that said Defendant then and there failed and omitted to turn his said automobile to the right of the center of said highway so as to pass the said automobile which Plaintiff was operating without interference after Defendant saw, or by the exercise of due care could have seen said automobile which Plaintiff was operating approaching on said highway, if so, in time for Defendant to have so turned, and passed Plaintiff without interference, if you find he could have done so, then if you so find the facts to be, and if you find that the defendant was thereby negligent, if so, and that such negligence, if any, of Defendant, directly caused the said collision, if so, and that Plaintiff was at all times in the exercise of the highest degree of care for her own safety and was not negligent, then your verdict will be in favor of the Plaintiff and against Defendant.'
Defendant contends this instruction submitted negligence not alleged in the petition, submitted statutory negligence under Section 304.020(3) RSMo 1949, V.A.M.S., which had been repealed in 1953 (Laws 1953, p. 587), and was not supported by the evidence. Plaintiff's petition contained the following allegations of negligence, upon which plaintiff says this instruction was based. Defendant says the instruction submits violation of 304.020(3) while paragraph (c) of the petition charges violation of 304.020(2) and paragraph (d) is based on 'a sudden swerve by defendant to his left directly into plaintiff's path of travel as distinguished from the submission in the instruction of the defendant driving on the left side of the road and thereafter failing to turn to his right.' However, paragraph (d) of the petition says nothing about a sudden swerve and we construe the allegations of the petition and the hypothesis of the instruction as charging and submitting driving on the wrong side of the road as the essential negligence relied on, which would be common law negligence as well as negligence under Sec. 304.015 enacted in 1953. Laws 1953, p. 587. The fact that the instruction also required a finding that defendant failed to turn to the right of the center of the highway only meant that the jury must find that he continued to drive on the wrong side until the collision occurred. For a somewhat similar contention about an instruction see discussion in Comstock v. Ingles, Mo.Sup., 296 S.W.2d 68, 70. It is obvious that plaintiff's evidence hereinabove summarized, supported the findings required by this instruction. We hold this instruction was not prejudicially erroneous.
Defendant's claim of error in admission of evidence is based on the following questions, answers and rulings. On direct examination of plaintiff: 'Q. (By Mo. Murphy) Now, when you saw this car coming toward you, Mrs. Hanson, and you said he was coming over on your side of the road, do you have any idea how far the car was away from you at the time it started coming towards you? A. I do not. There were so many lights, you know; I just saw that one, those two lights coming at me, and I thought oh, dear, I...
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