Ketcham v. Thomas

CourtUnited States State Supreme Court of Missouri
Citation283 S.W.2d 642
Docket NumberNo. 2,No. 44296,44296,2
PartiesHelen KETCHAM, Respondent, v. Wendell THOMAS and Evan S. Connell, Appellants
Decision Date14 November 1955

Peterson & Nelson, Columbia, E. E. Thompson, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell, Trusty & Green, Kansas City, of counsel, for Wendell Thomas.

William H. Sapp, Sapp & Bear, Columbia, for Evan S. Connell.

Terrell & Taylor, Frank H. Terrell, Guy A. Magruder, Jr., Kansas City, Alexander, Harris & Welliver, Ralph L. Alexander, Columbia, for respondent.

STOCKARD, Commissioner.

Plaintiff recovered judgment in the sum of $10,000 for personal injuries sustained when an automobile operated by defendant Connell in which plaintiff was riding as a guest, collided with a truck operated by defendant Thomas at the intersection of East Broadway Street and U. S. Highway 63 in the City of Columbia, Missouri. Each defendant separately appealed. The parties will be designated as in the trial court.

After attending a football game in Columbia, Missouri, on November 10, 1951, plaintiff, her husband and Dr. and Mrs. Connell participated in a social gathering at the Tiger Hotel and then all got in a car owned and operated by Dr. Connell to go to dinner. The plaintiff and Mrs. Connell were in the back seat of the car with the plaintiff directly behind the driver. Dr. Ketcham was a passenger in the front seat. Dr. Connell drove to Broadway Street and then eastward to the intersection of East Broadway with U. S. Highway 63. East Broadway is an east-west street and U. S. Highway 63 runs approximately northwest-southeast and intersects East Broadway at a 35 degree angle. Dr. Connell brought his car to a complete stop about 10 feet from the paved portion of the highway and looked to his left and saw the headlights of the truck of defendant Thomas which was traveling on the highway approaching the intersection. He estimated the truck was four or five hundred feet away, but he could not estimate its speed. He next looked to his right and straight ahead and then started his car onto the highway. When the front end of his car was over the center line of the highway he again looked to the left and saw defendant Thomas' truck about 70 feet away in the east lane (the left lane for the truck) traveling at a speed of about 50 miles per hour. About the same time Dr. Ketcham cried out, 'Evan, he is going to hit you.' The collision occurred immediately thereafter. Defendant Thomas said he was traveling at a speed of about 35 miles per hour, but otherwise there was no substantial conflict as to what occurred.

The plaintiff testified that she was not watching the direction in which they were going, that she was not paying attention to the driving but was talking to Mrs. Connell. She did not see the Thomas truck approaching the intersection but there was nothing that kept her from looking. She did not know of any impending danger until she heard the warning cry of her husband.

Defendant Thomas requested in the alternative two separate instructions submitting negligence of the plaintiff in that she was inattentive and failed to keep a lookout and to warn her host of impending danger. The trial court refused to give either instruction.

This court recently stated that, 'we accepted as correct and applicable to a guest passenger the rule expounded in Berry on the Law of Automobiles (6th Ed.) Vol. I, Sec. 665, as follows: "When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to conduct or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery."' Toburen v. Carter, Mo.Sup., 273 S.W.2d 161, 164. The plaintiff did not know of any dangerous situation until she heard the warning of her husband. She did not then have an adequate and proper opportunity to conduct or influence the situation for safety. Therefore, whether plaintiff should have warned her host after the danger confronting him was known to her is not here involved, but the question is whether the plaintiff, under the facts and circumstances here and in the exercixe of ordinary care, should have seen the dangerous situation and then have warned the driver. In other words, was the dangerous situation 'reasonably manifest' to plaintiff? When the Connell car was stopped before entering the highway, plaintiff could have seen the Thomas truck if she had turned and looked, but if she had then warned her host of the approaching truck, she would have told him only that which he already knew, see Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, and there was no reason to warn because there was no dangerous situation at that time. After the Connell car started forward, if plaintiff had then turned and looked, she could have seen the approaching truck and probably could have warned the driver in time for him to have stopped and avoided the accident. Therefore, whether she should have seen the approaching truck and the resulting dangerous situation after the Connell car started forward depends on whether, under the facts and circumstances of this case, there was a duty on her part to maintain a lookout for dangers. This is unlike the factual situation in Toburen v. Carter, supra, for there the guest passenger was sitting in the front seat of the car looking to the front, and the dangerous situation suddenly arose in front of her where she was looking.

A guest passenger in an automobile is chargeable only with ordinary care, Taylor v. Taylor, 360 Mo. 994, 232 S.W.2d 382; Toburen v. Carter, supra; State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233, and in the exercise of ordinary care is not required to keep a constant lookout and to make suggestions to the driver concerning the manner of operating the car. Taylor v. Taylor, supra. 'In the absence of visible lack of caution of the driver or known imminence of danger, a guest may ordinarily rely upon a driver who has exclusive control of the vehicle', Toburen v. Carter, supra, 273 S.W.2d at page 164, and it is a matter of common knowledge that under ordinary circumstances such occupants do largely rely upon the driver, who has the exclusive control and management of the vehicle, and who is exercising the required degree of care. But, where there is 'visible lack of caution' on the part of the driver, a guest in an automobile cannot abandon the exercise of his faculties and entrust his safety absolutely to the driver. Boland v. St. Louis-San Francisco R. Co., Mo.Sup., 284 S.W. 141.

Visible lack of caution could take several forms or manifest itself in numerous ways. Every case must depend upon its own particular facts. Does the evidence in this case show a visible lack of caution on the part of the host, prior to the incident that resulted in the accident, the would impose the duty on a guest exercising ordinary care to maintain a lookout for dangers? Dr. Connell testified that he had 'two scotch highball' while at the Tiger Hotel. The plaintiff said she did not see him take a drink. Dr. Connell also testified that he did not know the speed limit on East Broadway but, 'I would say we were traveling around thirty to thirty-five miles miles an hour' outside the business district. The speed limit was 25 miles per hour. There was no evidence that Dr. Connell had said or done anything that would indicate that he would or could not drive car with caution, and other than Dr. Connell's estimate of his speed, there was no evidence that he did not drive in a perfectly normal manner. The only evidence was that he was 'perfectly all right' and 'absolutely sober,' that there were no abrupt starts or stops, that he did drive in a perfectly normal way and that nothing unusual occurred in connection with his driving. The plaintiff testified that she had no fear of riding with him and that she had perfect confidence in his driving.

The fact, and that alone, that plaintiff knew that Dr. Connell had attended a social gathering where drinks were served a short time before they left the hotel, together with the reasonable inference that she knew that under the circumstances he probably took a drink, does not constitute substantial evidence of a 'visible lack of caution' on the part of her host that would give rise to a duty on the part of plaintiff to maintain a lookout. Evidence of any act or statement by him that would indicate he did not have complete control of his faculties would tend to establish a visible lack of caution on his part in operating an automobile, but there was no such evidence. All the evidence was to the contrary. There was no evidence from which it could be inferred that the speed which Dr. Connell estimated he drove, under the circumstances existing at that time, was such as would demostrate to an ordinarily reasonable and prudent person that he was exercising a lack of caution. Many factors such as the amount and the type of the traffic, the condition of the road and car and the type of weather would affect this question. There was no evidence of any such condition. It is readily conceivable that a speed of 15 or 20 miles per hour in a 25 mile per hour district might be dangerous and reckless under certain conditions, but the fact that the speed limit was 25 miles per hour would not mean that any speed up to that rate would not evidence lack of caution. Only a showing that the speed limit was probably exceeded a few miles per hour, according to Dr. Connell's estimate of his speed and under the circumstances here, does not of itself constitute substantial evidence of a visible lack of caution. We are not determining whether Dr. Connell may have violated the speed limit, but only whether under the facts and circumstances of this case, the plaintiff, as a guest in the rear seat of the car and...

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