Hays v. Proctor
| Decision Date | 14 June 1966 |
| Docket Number | No. 31619,31619 |
| Citation | 404 S.W.2d 756 |
| Parties | Mada HAYS, Plaintiff-Respondent, v. Richard PROCTOR, Jr., James Hodgson, and Joseph Strebler, Defendants, Joseph Strebler, Appellant. |
| Court | Missouri Court of Appeals |
Robert C. Ely, St. Louis, for defendant Hodgson.
W. W. Sleater, III, St. Louis, for defendant-appellant, Strebler.
Gray & Sommers, Don B. Sommers, St. Louis, for plaintiff-respondent.
Plaintiff, Mada Hays, was awarded $2,500 damages against defendant, Joseph Strebler, for personal injuries resulting from an automobile collision. Defendant appealed from the ensuing judgment. This action was originally instituted by plaintiff against Joseph Strebler, Richard P. Proctor, Jr., (an alleged partner of Joseph Strebler) and James R. Hodgson. Plaintiff dismissed as to defendant Proctor and the jury found in favor of Hodgson. A cross claim for damages was filed by Joseph Strebler against James R. Hodgson and a motion for a separate trial on the aforementioned cross claim was sustained by the trial court.
The first contention asserted by defendant is that there is no showing under the evidence submitted by plaintiff that defendant Strebler was negligent. In determining that issue, we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant's evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant's evidence unfavorable to plaintiff. Brantley v. Couch, Mo.App., 383 S.W.2d 307; Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Sperry v. Tracy, Dodge-Plymouth Co., Mo., 344 S.W.2d 108. Plaintiff sought recovery under the rear end collision doctrine requiring the jury to find in her Instruction No. 1 'that said defendant (Strebler) than and there negligently and carelessly allowed the front end of his automobile to overtake, run into and collide with the rear end of Mrs. Hay's automobile, * * * and that as a direct result of such negligence, * * * the plaintiff, * * * was injured * * *.'
Plaintiff was employed by Lammert's Furniture Company in Clayton, Missouri, as an interior decorator and seleswoman and had been so employed for 18 years. On the morning of May 6, 1959, about nine A.M. she left her home and was going to her employment in Clayton. Just prior to the accident she drove north on Big Bend Road to Northmoor intending to go to Big Bend and Forsyth where she would have made a left turn, Forsyth being approximately one block north of Northmoor. Big Bend is four lanes in width and there were no cars parked on Big Bend at the time she was driving north. The entire four lanes were available for moving traffic. She was traveling in the left lane for northbound traffic, which is the lane next to the center line of the street. She remained in that lane all the way to Northmoor and as she approached Northmoor there was a car standing in the same lane waiting to make a left turn. She stopped behind this car. As she started to make her stop, she looked in the rearview mirror of her car and saw another car coming in the same lane she occupied, which she later learned was Strebler's car. She also saw Hodgson's car in the right hand (curb) lane. When she came to a full stop she again looked in the rearview mirror and saw defendant's (Strebler's) car coming and said she 'knew I was going to be hit. * * * because he was coming without looking.' She said defendant's car was 'practically upon me' at that time. She then braced herself against the wheel. She then felt the collision, stating that 'it was from the rear.' The car in front of her had pulled away and turned left just before the collision. There seemed to be some confusion in her testimony as to how many impacts she felt, but she described the movement of her body Her forehead struck the steering wheel and her car was moved forward a car length. Prior to the collision she heard no warning sound of any kind and did not hear the 'screech' of any brakes behind her. The force of the collision pushed her car into the lane to her left which would be a southbound lane. She was unable to get out of her car immediately because she blacked out momentarily and when she came to someone was standing at her car window. It was Mr. Strebler, the defendant. When she got out of her car she observed Hodgson's car behind defendant's car. She observed some damage to the left front fender of Hodgson's car, stating it was dented. The front end of defendant's car was damaged seriously and the damage to her car was to the rear bumpers and to the trunk. Her car was not drivable after the collision. She was placed in Mr. Hodgson's car and taken to her home by Mr. Hodgson and the defendant.
Defendant, Strebler, called as a witness by plaintiff, said he was driving 20 to 25 miles per hour. He did not recall following plaintiff's car, stating 'I had a lot of other things on my mind.' He pulled up behind plaintiff's car and stopped 3 to 7 feet behind it. He could not recall if all of his car was in the lane occupied by plaintiff's car. He said he was stopped 'a few seconds; maybe a minute,' when he heard a skidding of tires after which his car was struck in the rear by Hodgson's car. The force of the collision moved his car forward into collision with the rear of plaintiff's car causing plaintiff's car to move forward. He said the back end of plaintiff's car 'was caved in' and the front and rear of his car were damaged. Defendant's car had to be towed from the scene of the accident. He said the left front fender of Hodgson's car was damaged and the left door could not be opened. He went with plaintiff to her home in Hodgson's car. He denied that he swerved to the right into the curb lane in front of Hodgson's car. He said that the skid marks of Hodgson's car measured 36 feet.
James Hodgson, called as a witness by plaintiff, testified he was driving north on Big Bend in the curb lane and at some place within the block south of Northmoor, defendant, Strebler, passed him driving about 25 miles per hour. The first knowledge he had there was going to be a collision was when defendant Strebler hit his brakes and witness heard the brakes 'squealing.' Hodgson said that he then hit his brakes and after skidding 33 feet hit Strebler's car at the right rear fender fin. Defendant Strebler's car was not pushed forward as a result of that impact. Hodgson said the only damage to Strebler's car was a nick in the chrome strip that protects the right rear fin. He said that both cars were stopped at the point of impact and that the damage to his car was a slight scratch above the left headlight rim. He said the impact was slight and did not cause Strebler's car to move forward and hit plaintiff's car. He heard a collision a split second before he contacted Strebler's car. He did not see plaintiff's car before the collision and did not know whether it was stopped in a position where it had a right to be. Hodgson said the skid marks of Strebler's car measured 36 feet. He said he took plaintiff to her home in his car. Strebler accompanied them.
It is undisputed that the front end of the car of defendant Strebler collided with the rear end of plaintiff's car. This is shown in the testimony of plaintiff and defendant and may be inferred from the testimony of Hodgson who heard a collision a split second before he made contact with Strebler's car. Giving to plaintiff, as we must, the benefit of all evidence favorable to her and not contradicted by her own evidence and not contrary to her theory of recovery under the rear end collision doctrine, we find the evidence sufficient to support a finding by the jury that defendant Strebler was negligent. We said in the case of Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302, l.c. 305; '' The above quotation was taken from our case of Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, l.c. 362. The evidence clearly demonstrates that plaintiff was in a portion of the highway where she was entitled to be and that defendant Strebler was traveling behind her in the same direction and in the same lane of traffic and overtook her and permitted his vehicle to run into the rear of plaintiff's automobile ahead of him. As the cases hold, under such circumstances a prima facie case of specific negligence has been made against defendant Strebler, the person in charge of the overtaking vehicle. Plaintiff's testimony shows that she was stopped in a lane where she was entitled to be stopped and that she saw defendant Strebler's car behind her and approaching her and traveling in the same direction as she was and that said defendant's car ran into and collided with the rear end of her car. In some respect the testimony of Hodgson confirms the fact that a collision took place between plaintiff's car and the car of defendant Strebler when Hodgson testified that he heard a collision a split second before he came...
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