Jenkins v. Jordan, 11221

• Court: Court of Appeal of Missouri (US)
• Citation: 593 S.W.2d 236
• Docket Number: No. 11221,11221
• Parties: Sam JENKINS, Plaintiff-Respondent, v. Madge JORDAN, Administratrix of the Estate of Bob Dave Jordan, Deceased, Defendant-Appellant.
• Decision Date: 17 December 1979

Page 236

593 S.W.2d 236 Sam JENKINS, Plaintiff-Respondent,
v.
Madge JORDAN, Administratrix of the Estate of Bob Dave
Jordan, Deceased, Defendant-Appellant. No. 11221. Missouri Court of Appeals, Southern District, En Banc. Dec. 17, 1979.
Rehearing Denied Jan. 11, 1980.

Page 237

Wayne C. Smith, Jr., Smith & Cooley, Springfield, for plaintiff-respondent.

E. C. Curtis, Phillip R. Garrison, Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for defendant-appellant.

PREWITT, Judge.

Plaintiff brought an action for personal injury against Bob David Jordan (Jordan). While the matter was pending in the trial court, Jordan died and his administratrix was substituted. Following a jury verdict and judgment in plaintiff's favor, defendant appeals.

Plaintiff's injuries were received as a result of an occurrence on September 28, 1970, on Highway 32 in Cedar County, Missouri. Highway 32 runs generally east and west and is slightly downhill going west, at the place where the incident occurred. The blacktopped portion of the highway is 20 feet wide. Plaintiff was operating an automobile in a westerly direction on Highway 32 when the engine stopped due to mechanical problems. He pulled onto the right or north edge of the highway with the front wheels off the highway and the left rear extending some 2 to 3 feet onto the paved portion of the roadway. There is a shoulder at that point approximately one and one-half foot wide and then a ditch. It was dark and plaintiff left the headlights and taillights burning on his vehicle. He got out, opened the hood, and looked at the engine. He then went to the trunk and got a quart of oil. While plaintiff was pouring the oil in the car, a Mr. Chism stopped his truck across the road from plaintiff, heading east. There was evidence that Chism's vehicle was not blocking any part of the traveled portion of the road. Chism also left his vehicle's lights on and there was evidence that they were shining down the ditchline and not directly toward oncoming traffic. After plaintiff had put the oil in the car, he put the oilcan back in the car. While closing the trunk, one of the rear lights on the left side went out. There were two lights on each side of the rear of the car and one of the lights on the left-hand side remained lit, as well as both on the right-hand side. Shortly thereafter, plaintiff saw the lights of Jordan's car heading west about a half mile away. When Jordan was about 600 feet away, plaintiff started flashing a flashlight toward Jordan. Jordan's vehicle continued to proceed at about the same speed and when it was about 300 feet away, Mr. Chism saw it was not going to slow down and went toward his vehicle. Plaintiff continued to attempt to flag Jordan down, plaintiff said, to keep the vehicle from hitting his car and keep someone from getting hurt. Chism had not reached his truck at the time the collision occurred. When Jordan's car was about a hundred feet away, plaintiff stood between the door and the left rear wheel of his car until the accident occurred. He does not know how close he was to the car. He was 6 to 7 feet from the north edge of the

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pavement. He waved his flashlight until the impact. Jordan's car struck plaintiff's vehicle. Whether plaintiff received his injuries from being struck by Jordan's car, or by his own being knocked into him, is not clear. By deposition, Jordan testified that previous to the collision he was going 40 to 45 miles an hour. He never saw plaintiff or plaintiff's car before colliding with it. Jordan said he was blinded by the lights of a car he was meeting. Both cars dimmed their lights and then he immediately hit plaintiff's car. Jordan did not see any other car near the scene of collision except the car which blinded him. It was moving east. Jordan said his car had good brakes and was in good mechanical condition, including the brakes and lights. There was no direct evidence as to weather conditions or the condition of the pavement at the time of the collision.

Defendant's first point is that the trial court should have sustained defendant's motion for directed verdict, as no submissible case was made because: A. There was no evidence of negligence on the part of Jordan which was the proximate cause of plaintiff's injuries, and B. The evidence showed that plaintiff was contributorily negligent as a matter of law.

In determining if there is sufficient evidence to support plaintiff's submission, we consider the evidence in the light most favorable to plaintiff. Following this guideline, we first consider whether there was evidence that Jordan was guilty of negligence which could be the proximate cause of plaintiff's injuries.

As plaintiff submitted his case on the theory of failure to keep a lookout, the evidence must disclose that the defendant saw or could have seen in time to have avoided the collision. Hill v. Barton, 579 S.W.2d 121, 128 (Mo.App.1979). A submissible case may be made on failure to keep a lookout by circumstantial evidence. Williams v. M. C. Slater, Inc., 590 S.W.2d 357, (Mo.App. 1979). There was evidence that there was nothing to obstruct the shining of lights toward a car as it comes from the east going west. Plaintiff saw Jordan's car when it was a half mile away and watched it at least the last 600 feet before the collision. Defendant contends that there was no evidence that Jordan could have seen plaintiff, his vehicle or its taillights or headlights, or the flashlight plaintiff was waving. Defendant claims that Jordan was blinded by the lights of a moving car that he was meeting. The evidence was in dispute as to whether there was any such car. The jury did not have to believe...