Lafferty v. Wattle, 7957
| Decision Date | 11 August 1961 |
| Docket Number | No. 7957,7957 |
| Citation | 349 S.W.2d 519 |
| Parties | Henry LAFFERTY and Betty Jo Lafferty, Plaintiffs-Respondents, v. Elmer Alvin WATTLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Bock & Jones, New Madrid, for defendant-appellant.
Ward & Reeves, Caruthersville, for plaintiffs-respondents.
This is an appeal from a judgment for plaintiffs, parents of Judith Lafferty (age thirteen), who met her death in a rear-end vehicular collision on Sunday, March 1, 1959. After a nine-man verdict in the sum of $25,000 and forced remittitur in the sum of $10,000, defendant Wattle has appealed.
The tragedy occurred at dusk or shortly before (car lights had not yet been turned on) on a state-maintained highway officially designated as Route Y at a place approximately 2.4 miles south of Caruthersville, Missouri. This highway runs south of a three-way intersection with Caruthersville's main street and Missouri State Highway 86. Route Y is paved with blacktop 19 feet wide. At the scene of the collision the road runs approximately straight and level for a mile or so in both directions, so there is nothing to interfere with vision 'as far as your natural eye will let you see.' The day was somewhat dark and cloudy. The pavement was dry. The shoulders were dirt covered with grass and were (by the state trooper) some four feet or (according to defendant) something like eight feet to five feet in width. The witnesses agree that there had been some rain at some time before and the shoulders were 'a little' wet but were solid and were 'not too wet to pull off.' No vehicles, other than the two involved, were concerned in the collision, and there was no nearby traffic.
Defendant Wattle was driving a 1952 GMC two-ton truck, which he says was in good mechanical condition, with a solid grain bed 15 feet in length. The sides of the grain bed extended upward four feet. There was no tailgate, so the rear end was open, and the owner had cut a gap in the front end of the grain bed, thus enabling him to look through the rear window of the cab. The truck had no rear vision mirror inside the cab but did have one on the driver's side, thus permitting another view to the left rear. The lights of the truck had not been turned on. Defendant was a farmer living some four and one-half miles south of Caruthersville. On this occasion he, with his wife beside him, was driving south. He said he was driving '35 or maybe 40' miles per hour as he neared the scene of the accident.
In the meantime Judith had met, in the picture show, a friend by the name of Jack Hostage Bailey, age sixteen at the time of trial. Robert Goodale came in and asked them to go riding. They picked up another girl, Kay Thrasher, and drove around south of Caruthersville. Goodale was driving. Kay was in the right front beside him. Bailey sat in the left rear behind the driver, and Judith sat in the right rear. They came off a gravel road and turned south on Route Y about one to one and one-half miles south of Caruthersville. Bailey, who was a witness, was interested in talking with Judy and when he first noticed defendant's truck they were, so he said, about 100 yards behind it. His estimate of the Chevrolet's speed was 40-45 miles per hour. The truck was 'going down the road' at the same estimated speed. They 'weren't running up behind it' and 'were not gaining any speed on it.' Bailey then leaned back in his seat and, presumably, turned his attention to Judith.
Now enter the hitchhiker. Paul Smithson, who worked on a farm in the general neighborhood, had been to the show in Caruthersville and was walking home. Defendant Wattle recognized him and slowed down to pick him up. Peculiarly enough, this witness never saw the Chevrolet at any time until after the collision. When he jumped on the rear end of the truck he never looked back.
Defendant Wattle said that he recognized Smithson, the hitchhiker, when 80 or 90 yards from him and that he applied his brakes and began to slow down. He did not look to the rear either through his rear window or by glancing at the side mirror. He did not give any hand or arm signal, did not turn on any signal light, and did not turn to the right. He was 'just about in the middle of my own lane.' He said that he could have seen to the rear had he looked, 'but I had my mind on going home, and I just held my side of the highway.' He never saw the Chevrolet until after the accident. He asked his wife, 'Is the boy on?' and she said 'yes.' Then he heard a 'lick' and saw the Chevrolet go by on his left and the (sheared) top flying off. He estimated that, from the time he recognized Smithson and started to slow down until the collision, his truck traveled 'I imagine' about 100 yards; that he did not come to a complete stop when Smithson got aboard but was traveling 'maybe three or four miles an hour or something like that.'
Bailey, the passenger in the rear seat of the Chevrolet, testified that, after first having seen it 100 yards down the road, he next saw the truck when the setting of the brakes of the Chevrolet 'raised me up and I looked.' He felt the brakes take hold and that threw him forward. He then saw the truck again, this time about 20 yards ahead, and the hitchhiker 'five or ten yards' from the truck and running toward it. The truck was in its own lane on the pavement with its right wheels about a foot from the pavement edge and was either stopped or moving very slowly. 'From what I could see it was almost stopped.' He said that he saw no lights on the rear of the truck, in fact no lights at all. (On cross-examination he said he wasn't looking for any taillights.) He heard the brakes on the Chevrolet scream 'a little while.' The Chevrolet was then near the center of the road. The car turned to the left after the brakes were applied and slowed 'a little bit.' 'There wasn't room to pass,' 'not from that close.'
The Chevrolet struck the left rear corner of the truck, shearing off the angle iron which held the taillight under the bed, and Judith sustained injuries from which she shortly died.
We have, perhaps unnecessarily, related these facts in undue detail because, in the type of submission involved, the whole surrounding circumstances are important. We have also, as we are bound to do after a verdict and judgment, taken those facts which we believe are most favorable, or from which the most favorable inferences may be drawn, in support of plaintiffs' verdict.
Defendant stood on his motion for directed verdict and offered no evidence. 1
The plaintiffs submitted their case on a principal instruction which first hypothesized the situation on the road in general terms, the character of the road, the location of the collision, the fact that defendant was driving his truck down the road and the Chevrolet in which Judith was riding was following it,
'* * * and that said collision and the said death of Judith Diane Lafferty was directly and proximately caused by the failure of defendant, Elmer Alvin Wattle, to exercise the highest degree of care, if you so find, in one or more of the following particulars:
'First: If you find that defendant, Elmer Alvin Wattle, checked the speed of the said 1952 GMC two-ton truck at a time and place when the movement of the 1957 Chevrolet in which Judith Diane Lafferty was riding would be reasonably affected by said checking of speed, and would create an immediate hazard and the said defendant, Elmer Alvin Wattle, failed to extend his arm at an angle below horizontal, or failed to give other timely and adequate warning of his intention to check the speed of the said 1952 GMC two-ton truck, 2 or
'Second: If you find that defendant, Elmer Alvin Wattle, drove and operated the said 1952 GMC two-ton truck at a speed of 3 or 4 miles per hour and such speed was such a slow speed as to impede or block the normal and reasonable movement of traffic and such speed was not reasonable necessary for safe operation; 3'Then if you so find the facts, you are instructed that your verdict must be in favor (of) plaintiffs, Henry Lafferty and Betty Jo Lafferty, and against the defendant, Elmer Alvin Wattle.'
Did plaintiffs make a submissible case on both disjunctives? Defendant contends that plaintiffs failed to make a submissible case because (a) there was no evidence that defendant abruptly or suddenly slowed his vehicle, (b) defendant was not required to give any arm signal because the statute expressly exempted him, (c) the testimony of Bailey as to not seeing any taillight was of no probative force, (d) there was no evidence that defendant 'impeded or blocked the normal and reasonable movement of traffic,' and (e) there was no substantial evidence that defendant's slackening of speed without signal was the proximate cause of the death of plaintiffs' daughter.
As to the sudden slowing of speed: We do not understand that the first paragraph of V.A.M.S. Sec. 304.019 emasculates subparagraph (1) in the sense that the command of subparagraph (1) is limited to cases where there is a sudden checking of speed. It would seem that the first paragraph is a prohibition against sudden slowing except where the movement can be made with reasonable safety, and then only after signal. However, subparagraph (1) simply creates (or rather expresses) the duty to warn on any checking of speed which may reasonably affect the movement of other vehicles. It does not condition that duty upon a 'sudden' decrease in speed. Subsection (1) has long been a part of the rules of the road [Section 8385(h), RSMo 1939; Bowman v. Moore, 237 Mo.App. 1163, 167 S.W.2d 675, 680; Woods v. Chinn, Mo.App., 224 S.W.2d 583, 586], and we...
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