Hubbard v. Lathrop

• Decision Date: 29 November 1976
• Docket Number: No. KCD,KCD
• Citation: 545 S.W.2d 361
• Parties: Clint R. HUBBARD, by and through his mother and next friend, Marilyn J. Williams, and Marilyn J. Williams, Plaintiffs-Respondents, v. James O. LATHROP and Margaret E. Martin, Co-Executors of the Estate and Personal Representatives of Clyde Lathrop, Deceased, 1 Defendants-Appellants.27873.
• Court: Missouri Court of Appeals

Page 361

545 S.W.2d 361

Clint R. HUBBARD, by and through his mother and next friend Marilyn J. Williams, and Marilyn J. Williams Plaintiffs-Respondents, v. James O. LATHROP and Margaret E. Martin, Co-Executors of the Estate and Personal Representatives of Clyde Lathrop, Deceased, ¹ Defendants-Appellants No. KCD 27873.

Missouri Court of Appeals, Kansas City District.

Nov. 29, 1976.

Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.

Application to Transfer Denied Feb. 14, 1977.

Walter R. Simpson, Kansas City, for defendants-appellants; Sheridan, Sanders, Mason & Simpson, PC., Kansas City, of counsel.

James W. Benjamin, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for plaintiffs-respondents.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from order granting new trial to plaintiffs on ground the verdict was against the weight of the evidence. The question is whether plaintiffs made a submissible case and, if so, whether plaintiff Clint Hubbard was contributorily negligent as a matter of law. Affirmed.

Appellants contend there was no evidence to support submission of plaintiffs' case and that, regardless of the theory of negligence advanced, the proximate cause of the casualty was the contributory negligence of plaintiff Clint Hubbard in that he made a sudden turn into the path of the automobille operated by Clyde Lathrop.

The grant of one new trial on the ground the verdict was against the evidence will not be disturbed when there is evidence to support a verdict for the party to whom the new trial is granted; and the inquiry accepts the evidence favorable to the trial court's ruling and rejects the appellant's evidence unless it supports the court's ruling. Clark v. Quality Dairy Co., 400 S.W.2d 78, 82(1) (Mo.1966); Land Clear. for Redev. Auth. v. Joplin Union Depot Co., 429 S.W.2d 806, 809--810 (Mo.App.1968); Overbey v. Fodde, 420 S.W.2d 510, 511 (Mo.1967). See also Allman v. Yoder, 325 S.W.2d 472, 473(2) (Mo.1959), citing e.g., Burr v. Singh 362 Mo. 692, 243 S.W.2d 295, 300(9) (Mo.1951), and Chappell v. City of Springfield, 388 S.W.2d 886, 889(2) (Mo.1965), citing e.g., Andres v. Brown, 300 S.W.2d 800, 801(2) (Mo.1957).

The casualty occurred November 23, 1972, on Missouri Highway 116 east of Plattsburg. The day was sunny and clear. The highway was a straight, two-lane, dry asphalt surface, 24 feet wide, running downgrade west to east. The casualty site was an open area with no obstructions to visibility and no restrictions on eastbound traffic against passing. The speed limit was 65 miles per hour.

Clint Hubbard was 15 years of age. He had ridden bicycles since he was three or four years old, and had studied literature on bicycle safety. He was athletic and a good student. He left his home in Lathrop to visit his aunt in Plattsburg around 3:00 p.m. His last recollection of events which occurred later that day was driving down the highway in the middle of the right-hand lane (eastbound toward Lathrop from Plattsburg).

Clyde Lathrop (by deposition) was 78 years of age. He had been to St. Joseph and was returning eastbound on highway 116 toward his home in Richmond. As he came over a hill to the west of the casualty scene, he saw Clint Hubbard riding his bicycle on the right-hand side of the highway. Mr. Lathrop was driving about 60 miles per hour; there were no other vehicles in sight. The investigating officer, Trooper Dean Jefferson, found skid marks near the casualty scene leading to Mr. Lathrop's automobile and measured the distance from such marks westward to the top of the hill at approximately 729 feet. Mr. Lathrop continued down the highway. When he was two or three car lengths behind the bicyclist, having slowed to 50 to 60 miles per hour by his estimate or to 50 to 55 miles per hour by the trooper's estimate, he started to pass, and then honked his horn 'shortly after' he 'pulled over' to pass. After Mr. Lathrop honked his horn, the boy 'looked back, looked around this way (indicating) and looked back and saw me over there. * * * And he still pulled right over in front of me. I jerked the car off the highway in trying to miss him. * * * In fact, I think if I hadn't honked the horn the boy would have been all right. I think that's what startled him. I don't think he heard that car at all, and when I honked the horn, I think he just--well, went all to pieces. It scared him to death. He thought the car was behind him, I guess. If I hadn't honked the horn, I don't think the boy would have pulled over there.'

Trooper Jefferson determined that the casualty occurred around 3:55 p.m. When he arrived at the scene, he observed Mr. Lathrop's 1972 Buick sedan in the ditch on the north side of the highway with its front end headed southward up the highway embankment. The bicycle was lying on the shoulder near where the car went over the embankment; its rider had been taken from the scene by ambulance. The Buick displayed damage to its right front side, and the windshield had been shattered when the bicyclist was thrown 'up over the hood and into the windshield,' as described by Mr. Lathrop. The bicycle displayed damage to both wheels and the left handlebar.

There is no question that Clint Hubbard sustained injuries as a result of the casualty; that his injuries required extensive medical care; and that he is limited in his physical capacity.

The jury rendered its verdict for defendants January 22, 1975. On January 31, 1975, Mrs. Williams wrote to Judge Connett, nett, 'as a mother,' and espoused her hypothesis of liability and injury as an 'appeal * * * to help us by giving us another trial.' On February 3, 1975, Judge Connett answered Mrs. Williams and advised her that he felt the case had been fairly tried and that she should consult her attorney, Mr. Benjamin, to determine whether 'he can think of any grounds at all for you to obtain another trial * * *.' Copies of Judge Connett's and Mrs. Williams' letters were furnished to counsel. A copy of Judge Connett's letter was filed in the case February 5, 1975. Plaintiffs' motion for new trial having been forwarded to the clerk and the judge February 3, 1975, was also filed by the clerk February 5, 1975. The first ground in plaintiffs' motion for new trial was that 'the verdict is against the weight of the evidence.' On February 18, 1975, counsel for defendants acknowledged receipt of Judge Connett's answer to Mrs. Williams, together with a copy of her letter to Judge Connett. Counsel also acceded to a ruling on the motion for new trial without oral argument or written suggestions.

On February 25, 1975, the court entered the following order:

'On Plaintiff's Motion for a New Trial, having been submitted to the Court without argument, and having been fully considered, the Court finds that the verdict of the jury is against the weight of the evidence:

'WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff's Motion for New Trial be and is hereby sustained.'

The foregoing order was accompanied by a memorandum of the court's observations with respect to the submissibility of both defendants' negligence and plaintiff Clint Hubbard's contributory negligence.

Section 304.016.1(1), RSMo 1969, provides: 'An operator or driver (of a motor vehicle) overtaking and desiring to pass a vehicle shall sound horn before starting to pass except * * *.' Such provision accords with the general rule as stated, 8 Am.Jur.2d, Automobiles and Highway Traffic, Section 780, page 339:

'Before a motorist attempts to pass another motorist proceeding in the same direction, he must make known to the motorist ahead his presence and desire to pass, where a statute so requires, or when circumstances require a warning in the exercise of reasonable care. When such a signal or warning is required, it must be timely * * *.'

See also 60A C.J.S. Motor Vehicles § 326(3), Signaling to Overtaken Vehicle: 'The required signal or warning must be timely,' p. 348.

'To be effective, * * * an audible signal of an intention to pass a forward vehicle must be given in such a manner and at such a time as to permit meaningful action by the forward driver in response to the signal. * * * an overtaking motorist may be regarded as negligent, or contributorily negligent, in connection with a collision with a forward car in passing, even though the overtaking driver gave an audible signal, if the signal was not given in time to permit effective evasive action by the forward driver.' 22 A.L.R.3rd 325, 366.

In application of the foregoing, it has been said that the statute does not declare the exact distance or time before overtaking at which the audible signal must be given. It 'is intended for the benefit of the driver of the overtaken vehicle. * * * Its purpose is to warn him that another vehicle is approaching and is about to pass him, and it ought to be given in time to enable him to safeguard himself against the danger of collision. The proper time for such warning is ordinarily a question of fact for the jury.' Moore v. Miller, 51 Cal.App.2d 674, 125 P.2d 576, 579(6, 7) (1942). The warning signal must be given to the operator of the vehicle in front 'in reasonable time to avoid injury which would probably result from a left turn or a crossing over the center of the highway to the left by the vehicle in front.' Boykin v. Bissette, 260 N.C. 295, 132 S.E.2d 616, 619 (1963). In Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957), a new trial was accorded to the survivors of a 9-year-old bicyclist killed when struck by a motorist who saw the boy for a distance of several hundred feet before overtaking him on a straight roadway with unobstructed view and neither sounded his horn nor applied...