Helton v. Huckeba

• Decision Date: 28 April 1954
• Docket Number: No. 7277,7277
• Citation: 241 Mo.App. 786,270 S.W.2d 486
• Parties: HELTON v. HUCKEBA.
• Court: Missouri Court of Appeals

Page 486

270 S.W.2d 486

241 Mo.App. 786

HELTON v. HUCKEBA.

No. 7277.

Springfield Court of Appeals, Missouri.

April 28, 1954.

Eugene E. Northern and Breuer & Northern, Rolla, for appellant.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Walter S. Pettit, Jr., and Donald J. Hoy, Springfield, for respondent.

McDOWELL, Presiding Judge.

This is an action by Nora Ann Helton, widow of Walter W. Helton, for damages for the death of her husband caused by an automobile collision December 22, 1950, in Texas County, Missouri. Grover L. Huckeba and Horace Belshe, administrator of the estate of N. A. Sellers, were made defendants. Settlement was made with the estate of N. A. Sellers for $7,000 and cause was tried against defendant, Grover L. Huckeba, before a jury, resulting in a verdict and judgment for plaintiff in the sum of $7,000. Defendant appealed.

Respondent's cause of action is based upon a number of specific acts of negligence but was submitted on only one, to wit, 'the Defendant Grover L. Huckeba at the time and place of said collision failed to use the highest degree of care in the operation of said Ford automobile in that he carelessly and negligently failed to drive and operate said Ford automobile as close to the right hand side of the highway as practicable.'

Appellant's answer was a general denial of negligence on his part and a plea that the negligence of N. A. Sellers, driver of the Chevrolet automobile, was the sole cause of the collision and death of Walter W. Helton.

Appellant's first assignment of error complains of the action of the trial court in refusing to sustain his motion for directed verdict.

In passing upon this assignment of error the court must consider all of the evidence offered in the case. Only where there is a complete absence of probative facts to support the conclusion reached by the jury does reversible error appear. If there is an evidentiary basis for the jury's verdict, the jury is free to disregard or disbelieve whatever facts are inconsistent with its conclusion. Ford v. Louisville & N. R. Co., 355 Mo. 362, 196 S.W.2d 163; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809, 810; Muesenfechter v. St. Louis Car Co., Mo.App., 139 S.W.2d 1102, 1106.

In determining whether respondent made out a factual issue for the jury, the appellant court must view the evidence from a standpoint most favorable to respondent, having regard for the rule that plaintiff has the burden of introducing substantial evidence tending to prove the facts essential to recovery. Schoen v. Plaza Express Co., Mo.Sup., 206 S.W.2d 536.

On the issue of a directed verdict the question is, was there substantial evidence to make a jury case that appellant was negligent in failing to keep his car as near the right hand side of the road as practicable? Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736.

If respondent failed to make a case on the charge of negligence on which the case was submitted to the jury the trial court erred in not directing a verdict for appellant. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839.

The evidence shows that Walter W. Helton, husband of respondent, was, on December 22, 1950, killed in an automobile collision between a Ford car, owned and operated by the appellant, and a Chevrolet car owned and operated by N. A. Sellers, in which Helton was riding. The accident occurred between 5:00 and 6:00 o'clock, just as it was getting dark. The place of accident was on highway 17, about seven miles south of Houston, Texas County, Missouri. Highway 17 runs generally in a north and south direction, is a black top road, 19 feet wide, with no center line marking.

Charlie Holder, a farmer living on the road, just south of the place of accident, testifies that where the road passes by his home it comes up a hill and then enters a straight stretch and makes a curve to the right or east; that the road is a little up-grade but practically level in the stretch. He testified that he saw the Chevrolet pass, going north, just before the accident; that it was traveling on its side of the road with the lights on and, in his judgment, running about 35 miles per hour. He stated he walked across the road from the south to the north side, after the Chevrolet passed, and heard a crash but did not see it. He stated tht the collision took place about 200 steps north of his house, just at the edge of the curve. He testified that he and his son were the first persons to reach the scene of accident; that there were no other cars there at the time. He said he first observed an old gray headed man under the wheel of the Chevrolet, dead; that beside him was a younger man slumped under the dash, dead. He described the position of the cars after the accident as follows: 'A. Well, they were sitting in,--kinda in this shape (indicating), see, with the Chevrolet's wheels back just pretty well to the edge of the blacktop, see, and the Ford was the same way on over the other way, with their noses pointing together this way (indicating), see, out in the road.'

Charlie Biggs testified that on the date of accident, N. A. Sellers purchased a new Chevrolet automobile in Summersville, a town about 25 miles south of Houston, in Texas County; that Helton drove the car out to the junction with highway 17 and that from there on N. A. Sellers drove the car north to the place of accident; that he followed along behind the Sellers car driving about 35 miles per hour and stayed about the same distance from the Sellers car; that he did not see the accident. He thought he was about a quarter of a mile behind. He said he could not see the accident until he came up the hill and made a sharp turn to the right and then he saw that it was the Sellers car involved.

Sgt. Earl Barkley testified that he was a member of the State Highway Patrol, stationed in the Willow Springs Division, which includes Texas County; that he arrived at the accident before the cars were moved. He stated two other patrolemen were there at the time he arrived; that he assisted in making an inspection and returned the next day and made an inspection to determine the cause of the accident. He testified that most of the debris, from both cars, caused by the collision, was on the east side of the highway in front of the Chevrolet. He said the collision occurred south of the curve on the straight of way. He gave this answer; 'A. The Chevrolet car had gone up the hill to where Mr. Holder's farm is, then the general contour of the ground there is level for quite some distance', and further stated: 'A. I believe I would be safe in saying three or four hundred feet, * * * after it passed the barn and got on the top of the hill.'

He stated that from the barn to the top of the hill was about 200 feet. He testified that respondent's exhibit 5 shows the road facing the south when the picture was taken. He took a pencil and pointed to a place on the exhibit where the accident happened which, he said, was just opposite a telephone pole. An examination of the exhibit shows that the telephone pole was some feet south of the curve on the level stretch of road described as being three or four hundred feet long. There seems to be no question but what this short level strip of road was straight and a little up grade to the north. He testified he examined the cars as to where they hit. His testimony was:

'Q. Which side was the Chevrolet hit on? A. It was on the right side, the front, the right front.'

He identified respondent's exhibits from 1 to 6, inclusive, and testified that exhibit 3 showed the condition of the two cars as they were at the time (which exhibit we herein insert as a part of the facts). The witness then testified that the Ford car was also hit on the right front side. As to the position of the cars on the road, the witness gave this testimony: 'A. Well, when I got there, this Chevrolet was sitting on the,--it would be the east,--it would be the west side of the pavement, with the front end across the center line toward the east. And the Ford was on the east side headed south. There was a lot of debris in front of the Chevrolet, and the battery was out of the Chevrolet there broken; there was a lot of metal off of both cars, a lot of dirt and glass, and I don't know just what all on the pavement, a lot of debris in general off of the wrecked automobiles.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

He testified that respondent's exhibit 5 directly shows the contour of the ground of the highway at the place of accident. This exhibit shows the road to be straight and practically level after it passed the top of the hill from the Holder barn for some two or three hundred yards and then the road makes a curve to the east. The witness stated there was a four foot shoulder on the west side of the road which was the lane being traveled by the Ford. He gave this testimony:

'Q. Did the place where this accident occurred, was that on a straight stretch of road between two curves? A. Yes, sir, it was.

'Q. So Mr. Sellers, in his Chevrolet car, and Mr. Helton, who was riding with him, had come up to the hill and west around a curve, around to the curve? A. They had come up to the hill and leveled off more or less, and were approaching the curve.

'Q. Didn't this accident happen between two curves? A. It happened between two curves on the other side of this farm home; you come up by the farm house up to the hill.

'Q. When you approved this report, you saw it stated in there,--said where this accident occurred 'is on a straight stretch but both drivers had just completed a curve'? A. Both drivers had completed a curve.

'Q. Had just completed a curve? A. Had completed a curve. I wouldn't say 'just completed a curve.'

'Q. That is what the report says, doesn't it? A. Yes, sir.'

The witness testified that patrolman Earl Walker had made a written report to the Division...