Helton v. Huckeba

• Decision Date: 14 March 1955
• Docket Number: No. 44619,44619
• Parties: Nora Ann HELTON, Respondent, v. Grover L. HUCKEBA, Appellant.
• Court: Missouri Supreme Court

Page 78

276 S.W.2d 78

365 Mo. 93

Nora Ann HELTON, Respondent, v. Grover L. HUCKEBA, Appellant.

No. 44619.

Supreme Court of Missouri, En Banc.

March 14, 1955.

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

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Springfield, for respondent.

DALTON, Judge.

Action for $15,000 damages for the wrongful death of plaintiff's husband, Walter W. Helton, who was killed in a collision between the automobile in which he was riding as the guest of N. A. Sellers and an automobile operated by defendant Grover L. Huckeba. Verdict and judgment were for plaintiff for $7,000 and defendant appealed to the Springfield Court of Appeals. That court reversed the judgment and remanded the cause with directions that judgment be entered for defendant-appellant. Helton v. Huckeba, Mo.App., 270 S.W.2d 486. On application of plaintiff-respondent the cause has been transferred to this court and we shall review the record as on original appeal. Section 10, Art. V, Const. of Missouri 1945, V.A.M.S.

It was admitted that Walter W. Helton was, on December 22, 1950, riding in a Chevrolet automobile which was being operated by N. A. Sellers northwardly on State Highway No. 17, in Texas county; that on the same date defendant Huckeba was driving a Ford automobile southwardly on the same highway; that, at a point approximately seven miles south of the junction of State Highway No. 17 and U. S. Highway No. 63 in Texas county, a collision occurred between the said automobiles; and that, as a result of said collision, Walter W. Helton was injured and died on said date. The record further shows that N. A. Sellers, the driver of the Chevrolet, was killed in the same collision and that, of the four occupants of the Ford, one was killed and three were severely injured.

The cause was tried and submitted on a single charge of primary negligence, to wit, 'that 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.' See Sections 304.010 and 304.020 RSMo 1949, V.A.M.S.

Appellant first contends that the court erred in overruling defendant's motion for a directed verdict at the close of all the evidence because 'there was not any substantial evidence of any probative force to show negligence on the part of the defendant.' This assignment requires the consideration of the evidence favorable to plaintiff on this issue, most of which evidence has been reviewed in detail and with particularity in the opinion of the Springfield Court of Appeals. Reference is had to said opinion for a more detailed statement of the evidence. Helton v. Huckeba, supra. Some additional facts will be stated in the course of this opinion. Many of the applicable principles of law have also been reviewed at length in said opinion and they will not be repeated here, however, we are unable to agree with the conclusions reached by the court that plaintiff failed to make out a submissible case of negligence, and that none of defendant's evidence aids the plaintiff's case.

In reviewing the record we must consider the evidence favorable to plaintiff and the favorable inferences therefrom and disregard defendant's evidence, unless it aids the plaintiff's case, and disregard all unfavorable inferences from plaintiff's and defendant's evidence, as the jury had a right to do. In other words, we must review the evidence favorable to the verdict of the jury and remember that the credibility, weight and value of the evidence was primarily for the jury and the trial court.

From the favorable evidence in the record, the jury could have found the facts to be about as follows: On the afternoon in question, Charlie Biggs accompanied by Helton (plaintiff's husband), Sellers and Wormington, drove from Lebanon to Summerville, where Sellers purchased a new 1950 Chevrolet automobile and, later, started driving it northwardly on Highway No. 17 toward Lebanon, accompanied by Helton. Biggs, Following in another automobile, didn't drive over 35 miles per hour and Sellers was 'just a little ahead.' Both automobiles were traveling at about the same speed. Biggs saw the taillight of the Chevrolet go around a curve ahead of him and knew when the wreck happened. He came upon it at once and saw 'smoke going up over the cars.' His automobile was the first car to arrive after the collision and he did not meet or pass any cars at that time. Charlie Holder, a farmer residing a couple of hundred steps south from the point of collision, was coming up as Biggs stopped. Holder had seen the Chevrolet pass his place going north with its lights on, at a speed of about 35 miles per hour and being operated on its proper (east) side of the highway. The time was between five and six p. m.; 'it was getting dark.' Holder had seen the Chevrolet coming and had waited for it to pass, he had also seen a second car coming behind, but he walked on across ahead of the second car and had gotten across when he heard the crash. When he and his son heard and then saw the collision, they went to it. There were no cars between the Sellers' and the Biggs' cars. The road was an ordinary two-lane black top road with a gradual upgrade near the Holder house to the point of collision, but steeper near the Holder house. The road makes a bend to the right 'but not too much' as one goes north. The bend is not right after you break over the top of the hill, but after 'you get on the level.' The Chevrolet 'had just barely got to maybe where the road started to bend the least bit,' at the end of the curve nearer the Holder house. It hadn't gotten on the main curve going north. The wreck had happened on a straightaway south of the curve. The Chevrolet was not in the main curve. The Ford, approaching from the north, going south, would have been on the outside of the curve. There was an open, safe, four foot shoulder on the right going south. The collision occurred on level ground. The top of the hill was less than 200 feet from the Holder barn. Immediately after the collision, the front ends of the two automobiles were pointed somewhat together and 8 or 10 feet apart, with the Ford southeast of the Chevrolet. There is some confusion as to directions. One witness said the road goes east and turns southeast in going north and that the Holder barn was on the south side of the road and the house on the north. Plaintiff's exhibit No. 7, an enlargement of that part of defendant's exhibit A-2 which purports to show State Highway No. 17, correctly shows the relative positions of the two automobiles immediately after the collision.

Most of the debris resulting from the collision was in the northbound lane. The back wheels of the Chevrolet were off the pavement, it was headed east with the front end protruding some three feet over the center line and onto the east side of the pavement. There was 'a skid mark from the center of the pavement, right near the center of the pavement around,--it circled around and made an arch around off the pavement to the left rear wheel of this Chevrolet, * * * It wasn't a continuous mark; it was a bouncing mark, probably six or seven or eight skid marks. * * * You could trace those bouncing marks. They stopped at the hind wheel. There was skid marks on the gravel where they stopped.' The skid marks could be traced to the left hind wheel of the Chevrolet. A rubber tire skidding sideways had made an uneven ragged mark that showed 'very plain' on the pavement. 'It was a rough, irregular mark.'

The Chevrolet had been hit on its right front side. 'The right side of the Ford hit the right side of the Chevrolet on the front.' The right front portion of each automobile was badly wrecked and the right front tire of each automobile was deflated, see plaintiff's exhibit No. 3, Helton v. Huckeba, supra, 270 S.W.2d 486, 489. The Ford had stopped on its left side of the highway, headed at an angle, southeast and the front ends of both cars were on the east side of the pavement. 'There was a lot of debris in front of the Chevrolet, * * * a lot of metal off of both cars, a lot of dirt and glass * * * a lot of debris in general off of the wrecked automobiles,' and 'anti-freeze from these radiators.' State Highway Patrolman E. L. Walker made a written report on the collision and signed it. Sergeant Earl Barkley had read and approved the report. The report was marked defendant's Exhibits A-1 and A-2. After Sgt. Barkley had testified and had been cross-examined, the exhibits were offered in evidence by defendant (apparently on the theory that the report was in conflict with Barkley's testimony, since it stated, 'there were no skid marks.'). On objection by plaintiff that the exhibits were hearsay, the court admitted them 'for the purpose of impeachment only.'

Defendant's exhibit A-1 contained an alleged statement by defendant to patrolman Walker, as follows: 'I saw him coming at me and when he didn't pull over, I pulled to the left.' Defendant's exhibit A-2, contained an alleged statement by defendant to patrolman Walker to the effect that when the driver of the on-coming Chevrolet did not go back to his side he (defendant) 'pulled to the left trying to go around him.' See 270 S.W.2d 486, 489.

When the debris was cleared off the pavement in front of the Chevrolet, certain marks were apparent on the pavement. 'There was an arch formed down around this Chevrolet, where it had rubbed the pavement. There was oil and water and battery acid there.' The mark started around five feet over from the center of the highway, on the Chevrolet's east lane, and arched around in a sort of semi-circle to the right-hand front of the Chevrolet to the right front tire. The right front wheel of the Chevrolet was on the mark and the tire had been...