Huffman v. Mercer

• Decision Date: 10 September 1956
• Docket Number: No. 45161,No. 2,45161,2
• Citation: 295 S.W.2d 27
• Parties: Perry HUFFMAN, Respondent, v. Frank MERCER, Appellant
• Court: Missouri Supreme Court

Page 27

295 S.W.2d 27

Perry HUFFMAN, Respondent, v. Frank MERCER, Appellant.

No. 45161.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1956.

Rehearing Denied Nov. 12, 1956.

John T. Martin, Sedalia, Martin & Gibson, Sedalia, of counsel, for defendant-appellant.

George H. Miller, Sedalia, C. P. Junge, Cole Camp, for respondent.

BOHLING, Commissioner.

Perry Huffman used Frank Mercer for personal injuries to himself (Count I) and for the death of his wife, Dora (Count II), the result of an automobile collision. A judgment, in conformity with a ten-juror verdict, was entered against defendant for $16,000 on Count I and for $15,000 on Count II. Defendant has appealed and contends there was 'no substantial evidence of probative value' to support the verdict and judgment; that the verdict on each count is so grossly excessive as to indicate passion and prejudice on the part of the jury and require a new trial; and, if not, in any event a remittitur should be entered on each count.

Plaintiff predicated a verdict upon a finding that defendant negligently 'drove his truck to the left and across the center line of said pavement and into the lane of westbound traffic then being occupied by plaintiff's car' and against the plaintiff's car, and thus injured plaintiff. See Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93[1-5].

Defendant's theory was that plaintiff, when within a short distance of defendant's truck, suddenly crossed to the south edge of the pavement and then suddenly turned his car back toward its proper lane of traffic, blocking defendant's lane of travel, and that the collision occurred near but south of the center of the pavement and in defendant's lane of travel.

Plaintiff had been living in Windsor, Mo., for three or four months, and resided with his wife, Dora, on E. I. McCown's farm, three miles south of Windsor. He worked for McCown on the farm in the mornings and at McCown's junk yard in the afternoons. He had purchased a 1936 Ford, 'an old wreck' of a car, from McCown a few months before the accident, paying $25 or $50 for it. He testified that the steering apparatus of the car was all right, but the front wheels had shimmied ever since he purchased it.

Defendant was a 'trucker,' and had four trucks hauling chat for the city from a quarry west of Windsor for use on the streets. He was operating a 1951 General Motors truck eastwardly at the time of the accident. It weighted 6,900 pounds and was loaded with 14,000 pounds of chat, rounded up on top of the truck.

The accident occurred Thursday, July 9, 1953, about 5 p. m. and 7 miles west of Windsor, Missouri, on State Highway No. 2, an east-west macadam (blacktop) road, 22 feet in width. The center of the pavement was marked by a painted line, badly worn and rather indistinct but discernible. At the scene of the accident, the highway for westbound traffic is downgrade to a culvert at the bottom of a hill and then upgrade for about 1,000 feet to the crest of the hill on the west.

Plaintiff had promised to take Virgil Wilson, a friend, to near Lexington to collect $6 a man owed Wilson, and plaintiff and his wife intended to visit her folks at Carrollton. Plaintiff performed his chores at the farm on the morning of July 9, 1953. He was not feeling good and had not worked in the afternoons for a couple of days. Plaintiff, his wife, and Wilson spent the afternoon visiting at plaintiff's father's home.

At the scene of the accident, plaintiff's Ford was followed by one of defendant's trucks, westbound for another load and operated by Lee Douglas. Plaintiff was driving, his wife was seated in the middle and Wilson was to her right. John C. Brown, an instructor at the Windsor High School, was working on his Master's degree at the State Teacher's College and commuted between Windsor and Warrensburg. He had passed defendant near the hill in question and was traveling east several hundred feet ahead of defendant down the west slope of the hill.

Plaintiff testified his Ford would shimmy 'whenever it would hit a little dip' or 'when it would hit a bump in the road,' and that Highway No. 2 was pretty wavy in places. Whenever it shimmied he would 'jerk' the Ford to the left and jerk it back to the right and get it straightened up, but would never go over two or three feet across the center line.

Plaintiff testified he met an eastbound (Brown's) car before he reached the culvert; that after they passed his Ford started to shimmy again and he jerked it again; that after he crossed the culvert the Ford started to shimmy again and he jerked it two or three feet over the center line and then back again and got it straightened up; that he was then about 200 feet west of the culvert, the Ford was completely over on his, the north, side of the highway, and he first saw the truck about 900 feet away. He placed the Ford's right wheels on the shoulder, at the edge of the blacktop where there was some gravel and dirt, not on the grass, with the left wheels about 6 feet north of the center line. He stated the truck was weaving, not shimmying, back and forth across the center line; that the Ford was proceeding at the north edge of the blacktop; that when the truck got close, 50 or 60 feet away, he noticed its left front tire was low, 'getting pretty well flat, it looked to me like'; that Wilson said 'Watch out,' and that the truck came over on plaintiff's side of the road and the front end of the truck struck the Ford at about the hinge of its left door, and pushed the Ford 15 or 20 feet back into the ditch and against the bank on the north side of the highway.

Defendant placed the collision about 600 feet from the west crest of the hill.

Virgil Wilson corroborated plaintiff's testimony. He stated the truck had a 'flat tire'; and that when the Ford shimmied 'it would shake the whole body.'

Plaintiff estimated his speed at 25 to 30 m. p. h., which accorded with defendant's estimate, and defendant's speed at 55 to 60 m. p. h. Defendant testified he was traveling about 45 m. p. h. as he approached the point of collision, and had slowed to 35 to 40 m. p. h. at the point of impact.

Lee Douglas, operating defendant's westbound truck and defendant's witness, testified he caught up with and followed the Ford for about two miles; that he undertook to pass it once or twice but the Ford would cross over to the south edge of the blacktop and he stayed behind it.

Mr. Brown, defendant's witness, testified that as the Ford and his car approached each other, the Ford crossed to the south side of the pavement twice, and on the second occasion forced him to move and take a chance of going into the ditch. He described the movements of the Ford as sharp enough to make the Ford swerve and lean a little.

Defendant testified his truck was not 'weaving.' He noticed the Ford suddenly swerve after passing Brown's car, 'nearly' go into the ditch on the south side of the road, and suddenly pull back to its side of the road. He released his pressure on the accelerator and continued on as the Ford was on its side of the highway. When the truck and the Ford were about 100 feet apart, the Ford again suddenly and abruptly swerved to the south edge of the blacktop. He thought it was going into the ditch. The Ford, however, suddenly made an abrupt turn back to the north, and was headed northwest, diagonally across and blocking the eastbound traffic lane. He applied his brakes for 75 to 80 feet. The left front of the truck, when about two feet south of the center line, struck the Ford just behind its left front wheel. The impact broke the brake lines on the truck; his brake pedal went to the floor board, and the two cars came to a stop in the ditch on the north side of the road. After the collision the left front tire and tube of the truck had a six to eight inch cut in them. The tire remained on the rim of the wheel and the rim was not damaged in any way.

Lee Douglas corroborated the testimony of defendant and his witness Brown.

Plaintiff, defendant, and defendant's witness Douglas testified that when the collision occurred chat and dust (the chat was rounded up above the bed of the truck) 'flew everywhere.' Defendant testified the collision was severe; that 'when they came together there was so much dust, gravel [chat] flying, that, of course, I couldn't see anything, I couldn't even tell where we was going until it stopped'; and that some of the chat broke the rear window of the truck's cab and the cab had about eight inches of chat in it.

Defendant's Exhibit 1 is a photograph taken on the afternoon of the accident and admittedly represents the scene as it appeared right after the accident. It shows gouged-out lines in the blacktop and also the chat on the blacktop.

Several witnesses testified to marks on the blacktop, especially Highway Patrolman Wayne Allman, plaintiff's witness, who arrived at the scene two hours after the accident, and defendant. The truck's dual rear wheels left skid marks on the blacktop. The skid marks started in the normal driving position for defendant's truck and angled toward the center of the blacktop. Allman testified the skid mark or marks were 51 feet long. The skidmarks ended where two 'gouged-out' marks or lines commenced, 'like some piece of metal' had dug into the blacktop. The gouged-out lines started just south of the center line and were approximately 12 to 18 inches apart at that point. The line to the south was short, but the other extended some distance in the direction where the two cars ended in the ditch on the north side of the road. Defendant stated the impact occurred at the west end of the gouged-out lines, and marked the point where the brake lines of the truck were severed. Allman examined the truck and the Ford but found nothing on either automobile to which he could attribute the gouged-out marks.

Allman testified that the distance from the beginning of the gouged-out lines to the radiators of the cars after...