Hopper v. Conrow, 48315

• Decision Date: 10 July 1961
• Docket Number: No. 1,No. 48315,48315,1
• Citation: 347 S.W.2d 896
• Parties: Clarence HOPPER and Mrs. Clarence Hopper, Parents and Natural Guardians of Glenn T. Hopper, Appellants, v. Geraldine Louise CONROW, Administratrix of Estate of Wm. Glenn Conrow, Respondent
• Court: Missouri Supreme Court

Page 896

347 S.W.2d 896

Clarence HOPPER and Mrs. Clarence Hopper, Parents and Natural Guardians of Glenn T. Hopper, Appellants, v. Geraldine Louise CONROW, Administratrix of Estate of Wm Glenn Conrow, Respondent.

No. 48315.

Supreme Court of Missouri, Division No. 1.

July 10, 1961.

W. F. Daniels, Fayette, for appellants.

Thos. J. Conway, Jr., Deacy & Deacy, Kansas City, Marion E. Lamb, Moberly, for respondent; Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

HOUSER, Commissioner.

On April 17, 1957 at about 8:45 p. m. an automobile carrying six young men ran downhill on Commerce Street in Glasgow over the railroad tracks and into the Missouri River. Only one person survived. Among the victims was Glenn T. Hopper, age 20, the owner of the car, and Wm. Glenn Conrow, age 23, who was driving the car. Hopper's parents brought suit against the administratrix of Conrow's estate for $25,000 damages for the death of their son. Plaintiffs appeal from an adverse judgment following the return of a jury verdict for defendant.

The petition charged that while Glenn T. Hopper was riding as a passenger and guest in an automobile owned by him, operated by and in the exclusive control of Conrow, the latter drove and operated the automobile in such a negligent manner that it ran off the traveled portion of Commerce Street and plunged into the Missouri River. The answer pleaded that Hopper had control or the right to control the automobile, and that Hopper drove or caused it to be driven in an unsafe manner or negligently failed to protest the manner in which his automobile was being operated, and failed to take any affirmative action to prevent the casualty, or negligently rode in his automobile while it was being driven by an incompetent person.

Shortly after 7:30 p. m. on the night in question the Hopper boy encountered four high school boys, and took them for a ride in his Ford automobile. Later he picked up Conrow. Hopper drove the five boys around town. Shortly before 8:45 p. m. he stopped the car in the grade school yard for a minute or two. At Conrow's request, Conrow was permitted to drive. With Conrow at the wheel the ride resumed. Hopper was seated in the front seat immediately next to Conrow. They drove from the school yard to Commerce Street, which leads downhill to the river; a steep slope which gets steeper as one approaches the river. At each cross street there is a dip caused by the level cross streets. The automobile turned into Commerce Street 784 feet from the river bluff. It traveled several blocks straight downhill on Commerce Street, over the 42-foot bluff and into the river. Conrow drove the car at a speed of 30 m. p. h. in the first block, sped up in the second block, increased his speed when halfway down the hill and traveled the last three and a half blocks at a speed of 40-50 m. p. h. Conrow made no effort to turn the car from its straight course, either to the right or left, at any of the several street intersections through which the car passed as it sped downhill. After crossing First Street (the principal downtown thoroughfare in Glasgow) the car traveled 192 feet, crossed Water Street, the railroad tracks, and reached the river bluff, going at a speed of 40-50 m. p. h.; then flew through the air 137 feet (47 feet over river bank below the bluff and 30 yards beyond the bank) and landed in the river upside down. The speed of the car did not decrease any time after it speeded up halfway down the hill. There were no skid marks. There was no evidence that the car was defective.

During the three and a half blocks they traveled 40-50 m. p. h. no one in the car 'said anything or did anything.' No one protested the speed at which Conrow was driving. 'Nobody said 'slow down,' 'watch out', or anything like that.' The Hopper boy did not say anything, and no effort was made to turn off the ignition.

There was evidence from which the jury could have found that the Hopper boy had a half pint bottle of whiskey in a sack on the front seat beside him; that one Robertson took one drink from the bottle at 7:30 p. m. and that when Robertson got out of the car the bottle on the seat beside Hopper was still almost full; that Conrow drank a third of a half pint bottle of whiskey straight with no chaser an hour or so before the accident; that sometime after 8 p. m. Conrow drank 3 or 4 glasses of beer in Tip Top Cafe; that Conrow's speech was slurred; that Conrow took a drink of whiskey across the street at the D-X Service Station (30 minutes before the fatality); that Conrow tried to play pool, but was in no condition to play; was staggering and unsteady, and his conversation did not make sense. A witness who drank with Conrow occasionally noticed a difference in his speech indicating that Conrow had had something to drink; he was quiet, which was characteristic of Conrow after a few drinks.

Appellants' first point is that the Court erred in giving Instruction D-4 because the evidence did not warrant or justify the giving of a contributory negligence instruction and for errors in its form and content. Instruction D-4 follows:

'The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence Glenn T. Hopper was the owner of the automobile involved in the casualty described in evidence and if you further find and believe from the evidence that on the evening of April 17, 1957, William Conrow had been drinking intoxicating liquors and by reason thereof, his ability to prudently drive an automobile was impaired, if you so find, and if you further find that Glenn T. Hopper knew or in the exercise of ordinary care for his own safety, should have known of the aforesaid facts, if you find them to be facts, and that thereafter Glenn T. Hopper carelessly and negligently allowed and permitted William Conrow to drive his automobile, if so, and if you find that Glenn T. Hopper carelessly and negligently rode in said automobile while same was being driven by William Conrow, if so, and if you further find that said automobile was thereafter operated by William Conrow west on Commerce Street at a high and dangerous rate of speed under all of the facts and circumstances then and there existing, if so, and that Glenn T. Hopper negligently failed to timely protest to Conrow about the manner and speed at which said automobile was being operated, if so, and negligently failed to take any affirmative action to influence the manner in which said automobile was being operated by Conrow, if so, and if you further find that the aforesaid negligence, if any, of Glenn T. Hopper directly caused or directly contributed to cause the death of Glenn T. Hopper, then your verdict must be for the Defendant.'

Appellants urge that the evidence did not warrant giving a contributory negligence instruction; that the duty to warn must be considered as of the time the danger presents itself and that recovery is to be denied on this ground only if Hopper failed to warn after danger became reasonably manifest or known to him, citing Trump v. Ballinger, Mo.Sup., 317 S.W.2d 355, 358; that Conrow did not drive in such a manner as to evoke a protest and 'the operation of the car did not become dangerous until he passed over the railroad tracks. Then it was too late * * * Hopper [then] would not even have his 3/4 of a second reaction time'; that until that time, i. e., until Conrow failed to make the last turn (the turn onto Water Street, the roadway immediately adjacent to the railroad tracks, some 23 feet from the river bank), Hopper was not charged with notice that Conrow did not intend to turn aside from the straight course into the river or of his danger; that in any event Hopper would not have been on notice until the car passed and did not turn at First Street (192 feet from the river bank), at which place Hopper 'would have about 3 seconds to protest, remonstrate or do something'; that Hopper had no time or opportunity to do anything to avoid or protect himself against the accident, at either time or place; and that there was no evidence that the accident could have been avoided by a timely warning, citing Dawley v. Hoy, Mo.Sup., 341 S.W.2d 111, 116. Appellants further argue that Hopper's failure to protest or warn Conrow could not have been the proximate cause because 'To have warned Conrow, or timely protested would have told Conrow nothing that he did not already know or see,' citing Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, 965; and Fann v. Farmer, Mo.App., 289 S.W.2d 144, 149. Further, they...