Hoehn v. Hampton

• Decision Date: 11 July 1972
• Docket Number: No. 34211,34211
• Citation: 483 S.W.2d 403
• Parties: Earl E. HOEHN, Plaintiff-Respondent, v. Henry Lee HAMPTON, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 403

483 S.W.2d 403

Earl E. HOEHN, Plaintiff-Respondent, v. Henry Lee HAMPTON, Defendant-Appellant.

No. 34211.

Missouri Court of Appeals, St. Louis District, Division Two.

July 11, 1972.

Harlan & Harlan, John L. Harlan, Jr., Clayton, for defendant-appellant.

Koenig, Dietz, Hermann & Abels, Thomas B. Maue, St. Louis, for plaintiff-respondent.

SIMEONE, Judge.

In this action for personal injuries occasioned by an automobile collision, the jury found in favor of the defendant, Henry Lee Hampton. The trial court thereafter sustained plaintiff Earl E. Hoehn's motion for a new trial and ordered the cause reinstated upon the docket for further proceedings. From the order granting plaintiff Hoehn a new trial, defendant Hampton appeals.

On November 12, 1965, Hoehn was involved in a collision at the intersection of Highway 54 and Old Highway 40, near Kingdom City, Missouri. He was a passenger in an automobile owned by Calgon Corporation and driven by William E. Pfeiffer. On November 30, 1967, Hoehn filed his petition against Hampton and Calgon Corporation, but subsequently dismissed the petition against Calgon. Trial was held in March, 1971.

Pfeiffer was Hoehn's 'boss' and district sales manager of Calgon. They had left St. Louis on the morning of November 12, about seven a.m., drove to Mexico, Missouri where they visited two accounts and were on their way to Fulton when the collision occurred. It was a clear day, the weather was good, and the streets were dry. Hoehn and Pfeiffer were riding in a 1965 Ford station wagon. Hampton, a farmer, owned and drove a 1962 Ford pick-up one-half ton truck with a six foot bed.

At or near the intersection of Highway 54 and Old Highway 40, Highway 54 runs north and south and consists of two lanes for northbound traffic and two lanes for southbound traffic. The concrete highway has pavement 25 feet wide. Highway 40 at the time of the collision, was a two lane highway running east and west. Highway 54 was separated by a grassy strip median 40 feet wide between the north and southbound lanes of the highway. The intersection is a four-way intersection. At that intersection there were business places, filling stations, a restaurant and a highway patrol weight station. There was a 15 foot shoulder on each side of the southbound lanes of Highway 54, and a 'yield' sign on Highway 40 at a point immediately east of the southbound lanes of Highway 54. At the intersection the land is flat but Highway 54 rises to a crest some 600--700 feet north. At each of the north and southbound lanes of Highway 54 at the intersection, there is an overhanging flashing light for both directions. It was referred to as a 'red flashing light.' The impact occurred in the outside southbound lane of Highway 54.

Hampton had been driving north on the northbound lane of Highway 54 and had picked up a hitchhiker. He let him off at Old Highway 40, after pulling off on the shoulder and coming to a dead stop. He pulled back onto Highway 54 and turned left, or west, onto Highway 40. He proceeded west on 40, entered the median which was about 40 feet wide, and at a point about half way into the median, or 20 feet from the inside southbound lane, he looked to the right (north) and saw no traffic coming south on Highway 54. He could see to the crest of the hill about 600--700 feet but was not sure he looked that far. He proceeded into Highway 54 at about 10--15 miles per hour. When he looked again, the Pfeiffer vehicle was 'right on me.' Pfeiffer's automobile was proceeding south at about 60--70 miles per hour. Hoehn, the passenger in Pfeiffer's car felt an application of the brakes at a point 50 feet from the intersection. Hoehn testified that Hampton was moving 'very slow' about '5 to 10 miles an hour.' The first time Hoehn saw Hampton's pick-up truck from the intersection was about 30 car lengths or approximately 500 feet. The crest of the hill was 'high enough that it would cover an object, an automobile coming southbound.' Hoehn testified that Hampton traveled '30, 40, maybe 50 feet' before the impact occurred at a speed of '5 to 10 miles an hour,' and that their vehicle traveled 500 feet while Hampton's vehicle went about 50 feet.

As stated, the impact occurred in the outside southbound lane of Highway 54. Hampton's truck completely crossed the inside southbound lane and the front wheels had completely crossed the curb lane of southbound Highway 54. The Hoehn station wagon hit the truck around the back wheels. The bed of the truck was in the outside southbound lane when it was hit. Hampton's truck was damaged behind the passenger's door and the back bed, most of the damage being over the right rear wheel. Hampton looked at the highway after the collision and saw no skid marks.

The court instructed the jury on a failure to keep a careful lookout or failure to yield the right-of-way. Instruction No. 2 also read 'When a vehicle is about to enter a through highway from an intersecting highway and another vehicle on the through highway is so close as to constitute an immediate hazard, the vehicle on the through highway has the right of way.' During the closing argument, counsel for defendant (Mr. Harlan) made a number of references to Mr. Pfeiffer's conduct in driving the station wagon. Counsel's comments during the argument included the following:

'Now, let us look at the facts a little more clearly. The facts are that Mr. Hampton came up to that intersection and he looked all the way to the crest of that hill. He saw nothing. In accordance with this Instruction No. 2, when you get up there is the Jury Room, if you'll read it, you'll see where it says when a vehicle's about to enter a through highway from an intersecting highway another vehicle on the through highway is so close as to constitute an immediate hazard, an immediate hazard. There was no immediate hazard when Mr. Hampton started his '62 Ford pick-up truck across that highway. There was a flashing red light. This is very important. There was a flashing red light for Mr. Pfeiffer, and in spite of that red light be barrelled through that intersection at 60 to 70 miles an hour.

'MR. MAUE: (counsel for plaintiff-Hoehn) Your Honor, I am going to object to that. There is no issue on Mr. Pfeiffer's negligence, if any, in this matter.

'MR. HARLAN: I am not alleging any negligence.

'MR. MAUE: Yes, you are.

'THE COURT: Well, he's trying to obviate the negligence of the Defendant by--in other words, he's taken the position the Defendant wasn't negligent. I'm not going to comment. I will overrule the objection. Go ahead.

'MR. HARLAN: Thank you. Your Honor. Anyway, this is what happened. And where did he hit him? He hit him on the right rear. There's no other southbound cars on that dual lane. There are no skid marks. There was no squalling (sic) of brakes. There was nothing. He just simply ran into the back end of this car when by a simple turn of the wheel the whole thing could have been avoided.

'You also recall yesterday that we were talking about speeds and how far vehicles traveled. Mr. Hoehn admitted himself that he saw that car, that truck, 30 car lengths away, or approximately 500 feet, and he testified that Mr. Hampton drove his car approximately 50 feet from the time he saw him until the time it happened. In other words, the Pfeiffer car was driving ten times as fast as Mr. Hampton's car but, see, the immediate hazard was not present as outlined in the Court's instruction No. 2 because there was no immediate hazard when Mr. Hampton started across the road. After all, everybody has a right to use the road and it is plainly evident that we crossed that intersection and was into the intersection long before the Pfeiffer car got there, but for some reason Mr. Pfeiffer just moved right on down the highway, didn't apply his brakes, didn't sound his horn, didn't swerve, but just simply ran into the back end of our car, and as Mr. Hampton has testified, the front end of his car was already off the highway when the impact occurred.

'Now what do we have around this intersection? You heard Mr. Hampton describe this morning, there's seven filling stations, there is a Highway Patrol Weight Station. That's what is there, plus a flashing red light for the car in which Mr. Hoehn was riding. Now, that flashing red light was there for a purpose. It was there for a reason, and the reason it was there is to avoid what happened that particular November 12, 1965. Ladies and gentlemen, I want you to carefully read when you get up to your room Instruction No. 3, 'Your verdict must be for the Defendant on the Plaintiff's claim for damages unless your believe the Defendant was negligent as submitted in Instruction No. 2' and listen to this, 'and that Plaintiff sustained damage as a direct result thereof.'

'Now, another interesting point, Mr. Hoehn testified that Mr. Pfeiffer never applied his brakes until he was 100 feet away. That was the first time he applied his brakes. He had at least five or 600 feet to observe that pick-up truck when they came over the crest of the hill. The reason that Mr. Hampton didn't see that fast moving brand new '65 Ford station wagon is because it was over the crest of the hill and at 60 miles an hour a car is moving 88 feet a second. You can figure it out, so you can figure he had plenty of time to just simply put on his brakes and slow down and hold and the whole thing could have been avoided.

'But I think the most important thing of all is for you to remember that the Court does not instruct you for any money award for this Plaintiff in Instruction No. 2 unless you believe that the Defendant was negligent and that he was injured as a direct result. Unless you find those two things you should bring a verdict back in favor of the Defendant, and this is what we're going to ask you to do.

'Now, I want you to bear in mind the red light, the fact that he was under no obligation to yield unless there was immediate hazard which there wasn't. ....