Kieffer v. Bragdon

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; RUDDY, Acting P. J., and WEINSTEIN
• Citation: Kieffer v. Bragdon, 278 S.W.2d 10 (Mo. App. 1955)
• Decision Date: 19 April 1955
• Docket Number: No. 29026,29026
• Parties: Elizabeth KIEFFER (Plaintiff), Respondent, v. Allen BRAGDON and Dudley A. Bragdon, Jr. (Defendants), Appellants.

Page 10

278 S.W.2d 10

Elizabeth KIEFFER (Plaintiff), Respondent, v. Allen BRAGDON and Dudley A. Bragdon, Jr. (Defendants), Appellants.

No. 29026.

St. Louis Court of Appeals, Missouri.

April 19, 1955.

Luke, Cunliff & Wilson, Hugh S. Wilson, John B. Busch, Wilton D. Chapman, St. Louis, for appellants.

Robert W. Henry, St. Louis, for respondent.

HOUSER, Commissioner.

Action for damages for personal injuries sustained by Elizabeth Kieffer in a collision between a Dodge automobile driven by her and an MG automobile owned by defendant Dudley A. Bragdon, Jr., and driven by defendant Allen Bragdon. A jury verdict was returned in favor of plaintiff in the sum of $7,500. From the judgment of the Circuit Court of St. Louis County entered upon the verdict both defendants have appealed.

The petition alleged that while plaintiff was driving the Dodge west on U. S. Highway No. 40 the defendants negligently entered the highway in the MG in front of the Dodge when the MG was in dangerously close proximity, turned the wrong way into a one-way highway, failed to maintain a vigilant watch, and traveled at a high speed, as a result of which the collision and damages occurred. Other specifications of negligence, abandoned in the submission, are immaterial here. Defendants' answers consisted of separate general denials and pleas of contributory negligence.

The collision occurred in St. Louis County on the westbound portion of No. 40, a dual highway built with two contiguous lanes for westbound traffic and two contiguous lanes for eastbound traffic. The westbound and eastbound trafficways are separated by a 30-foot grass-covered parkway. The scene of the collision was that portion of the westbound trafficway immediately west of the west end of the bridge overpass at the cloverleaf intersection where No. 40 crosses over Lindbergh Road, in St Louis County.

Plaintiff, the sole occupant of the Dodge, was driving west on No. 40. Defendants, with Allen at the wheel and Dudley seated alongside, were traveling south on Lindbergh Road intending to turn west at the intersection and proceed west on No. 40. Under prevailing traffic rules defendants, coming south on Lindbergh Road, in order to accomplish their purpose, would turn to the right before reaching the point where Lindbergh Road goes under the No. 40 overpass bridge and drive in an ascending curve to the left, which would bring them to the north lane of the westbound No. 40 trafficway, at which place there was a stop sign. After observing the stop sign defendants would turn to the right into No. 40 and thence west. Traffic traveling west on No. 40 and intending to turn at the intersection to travel south on Lindbergh Road would drive across the overpass bridge, execute a right turn, proceed on a descending right curve to the west edge of Lindbergh Road, stop, turn right into Lindbergh Road and proceed thence south. Allen Bragdon drove the MG south on Lindbergh Road, made a right turn at the proper place and took the proper course, proceeding on an ascending curve to the left until he reached a fork in the pavement. The left fork was the one-way cutoff used for diverting from No. 40 westbound traffic intending to turn south at the intersection. The right fork was the one-way pavement used by southbound traffic coming off Lindbergh Road intent on proceeding west on No. 40. Becoming confused Allen Bragdon mistakenly took the left fork instead of the right fork, drove the MG into No. 40 without stopping and headed east instead of west thus proceeding the wrong way on a one-way, three-lane trafficway. Almost immediately after straightening out in an eastward course the MG collided head-on with the westbound Dodge.

Defendants' first point, that plaintiff was guilty of contributory negligence as a matter of law, requires a detailed review of the evidence viewed in the light most favorable to plaintiff. Approaching the overpass on No. 40 from the east there is a slight upgrade and the trafficway widens out into three lanes. It continues as a three-lane trafficway across the overpass bridge and for several hundred feet west. A westbound motorist ascending the incline cannot see the northwest quadrant of the cloverleaf until he reaches the top or center of the bridge. A four-foot concrete railing on the north side of the bridge interferes with one's view to the right or north as one travels west. The highway was dry, the weather was hot, and there was sufficient light to see clearly without the necessity of turning on headlights. As plaintiff, traveling west, entered the east end of the bridge there was another westbound car in front of her, traveling about 30 miles per hour. This car was driven by Sam C. Nicholl. Plaintiff was operating the Dodge about 30-35 miles per hour. Both the Nicholl car and the Dodge were traveling in the right or nothernmost lane as they crossed the bridge. At about the center of the bridge Nicholl signaled a right turn and started to slow down to make a right turn on the cutoff. The distance between the west end of the overpass bridge and the cutoff is 173 feet. Plaintiff then pulled over into the center lane. When Nicholl made his hand signal the MG was in the northwest quadrant of the cloverleaf, coming up to No. 40, its tires squealing as it made the turn, traveling between 40 and 45 miles per hour. Without stopping or reducing its speed or sounding a horn Allen Bragdon drove the MG into No. 40, swerving around in front of the Nicholl car, apparently increasing the speed of the MG in order to avoid a collision with, and passing some 8 or 10 feet in front of, the Nicholl car. The Nicholl car, in front of and to the right of the Dodge, began to swerve from side to side in an irregular manner. Plaintiff saw the MG when still headed south and as it was entering No. 40. At that time the Dodge was 75-100 feet east of the cutoff. Nicholl cut over to the right side of the road, his brakes practically locking in an effort to avoid colliding with the MG. The MG swerved out to miss the Nicholl car, went around the Nicholl car, which was practically stopped by that time, and collided head-on with the Dodge at a point about 30-40 feet east of the cutoff and in the middle of the three lanes. The driver of the MG apparently did not apply his brakes. When the MG swerved toward the Dodge plaintiff grabbed hold of the steering wheel, slammed on the brakes and 'froze.' At the time of impact the Dodge had not yet come up even with the Nicholl car, but was half a car length behind it; 'halfway in back' of the Nicholl car.

Plaintiff was an experienced automobile driver. The brakes and tires on the Dodge were good. Taking into consideration road and weather conditions it would take her approximately 75 feet, including reaction time, to stop the Dodge traveling at a speed of 35-40 miles per hour. Although Allen Bragdon had driven other automobiles extensively he had not driven an MG, a British-made car, before that date. Allen was unfamiliar with the intersection and conceded that he failed to observe the one-way sign at the fork, and that he entered No. 40 without stopping or slackening his speed and without observing any approaching traffic. He looked to the right, instead of the left, before entering the highway, and conceded that he did not sound his horn. He testified that the crash occurred almost immediately after he turned onto the highway, and that he had been drinking bourbon and water highballs 'moderately' before the accident. After the collision Dudley A. Bragdon, Jr. said 'We were certainly at fault.'

Asserting that plaintiff had an unobstructed view of the highway and a clear opportunity to have seen defendants' automobile, defendants argue that plaintiff is guilty of contributory negligence in failing to swerve if she saw the MG, and in failing to look if she did not see it. It is said that her opportunity to see the MG was greater than that of Nicholl because she not only could have seen the MG approaching but also could have seen Nicholl's automobile swerving in his effort to avoid the MG. Defendants point out that there was a clear lane to plaintiff's right into which she could have swerved and conclude that plaintiff had no right to continue to hold her course and collide head-on with defendants' automobile but should have swerved into the right-hand lane and avoided the accident.

Plaintiff's contributory negligence is for the jury unless reasonable minds can draw only one conclusion, namely, that plaintiff was negligent. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498. Viewing the whole evidence and all legitimate inferences deducible therefrom in the light most favorable to plaintiff and disregarding the evidence and inferences favorable to defendants, it cannot be said that the foregoing evidence convicts plaintiff of contributory negligence as a matter of law. Plaintiff's view of the northwest portion of the cloverleaf was completely obstructed until she reached the center of the bridge. From then until she reached the west end of the bridge her view was impaired by the railing. By the time she reached that point the jury could have found that her view of defendants' automobile was obstructed by the Nicholl car because it is uncontradicted that as plaintiff approached the cutoff the Dodge she was operating was to the left of and partially to the rear of the Nicholl car. The Dodge was in the middle lane, and the Nicholl car in the right-hand or north lane. The MG came from the north or right of the westbound cars, and crossed in front of the Nicholl car. As pointed out in plaintiff's brief 'The cutoff from which defendants' car emerged is on a much lower level than the highway on which plaintiff was traveling.' The difference in elevation would help account for plaintiff's failure to see the MG before it emerged into No. 40. There was evidence from which the jury could have excused plaintiff for not having seen the MG, which is a small...