Lands v. Boyster
| Citation | 417 S.W.2d 942 |
| Decision Date | 11 September 1967 |
| Docket Number | No. 52246,No. 1,52246,1 |
| Parties | Mrs. Elmer LANDS, Appellant, v. Erastus BOYSTER, Respondent. Mr. and Mrs. Elmer LANDS, Appellants, v. Erastus BOYSTER, Respondent |
| Court | United States State Supreme Court of Missouri |
Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellants.
Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
HIGGINS, Commissioner.
Action by Mrs. Elmer Lands for $25,000 damages for personal injuries consolidated with action by Mr. and Mrs. Elmer Lands for $25,000 damages for wrongful death of a minor daughter. Verdict was for defendant in both cases with judgment accordingly, from which plaintiffs appeal.
The incident out of which these actions arose occurred May 21, 1964, on East Jefferson Street in Potosi, Missouri. East Jefferson is an east-west street, twenty feet wide, level, and of blacktop pavement. The south shoulder is about two feet wide with a ditch eighteen inches to three feet deep beyond; the north shoulder averages five feet in width and is seven feet wide at the scene. Beyond the north shoulder is Burton Creek.
Mr. Lands, aged 36, was driving his 1958 Ford eastwardly on East Jefferson at ten to fifteen miles per hour. His wife, aged 31, was a front-seat passenger; his three sons and a neighbor boy, all children, were in the rear seat. All occupants of the Lands car intended to stop along East Jefferson to seine minnows from Burton Creek and proceed to Clearwater Lake to fish.
Mr. Boyster, aged 60, was operating his 1949 Chevrolet pickup also eastwardly on East Jefferson at fifteen to twenty miles per hour. He first saw the Lands vehicle when he was three hundred to four hundred feet to the rear of it, and it was then three hundred yards west of the place of collision. Mr. Boyster closed the distance between the vehicles, then slowed to Mr. Lands's speed and maintained his distance. When Mr. Lands was fifty feet from the place of collision, Mr. Boyster was twenty-five to thirty feet behind him; when Mr. Lands turned to the left side of the road, Mr. Boyster was between fifteen and twenty-five feet behind him. Mr. Lands said he used his left blinker signal; Mrs. Lands said she heard it clicking; Mr. Boyster said no signal was given. Mr. Boyster described Mr. Lands's turn as 'whipping' to the left. He applied his brakes and turned right sharply. Mr. Lands stated he looked into his side mirror and did not see Mr. Boyster; he did not look into his windshield mirror prior to turning left.
The Lands car was struck on the right rear fender by the left front fender of the Boyster truck. The car sustained damage also to the taillight, quarter panel, deck lid, and bumper on the right rear side. The truck's radiator and grill were damaged and the door was hard to close. The truck stopped immediately in the middle of the street; the car moved forward about twenty feet and came to a stop with its left wheels on the north shoulder.
Respondent concedes that there was evidence from which the jury could have found that Mrs. Lands sustained personal injuries, including concussion and interruption of her pregnancy. The child, Myra Denise Lands, born by Caesarean section upon interruption of the pregnancy, died several hours after its premature delivery.
Appellants contend that giving Instruction No. 8 on contributory negligence was error because
Instruction No. 8 directed a verdict for defendant in the wrongful death case of Mr. and Mrs. Lands if the jury believed:
'First, Elmer Lands either:
'failed to keep a careful lookout, or
'failed to signal his intention to turn and slow his vehicle, and
'Second, Elmer Lands' conduct, in any one or more of the respects submitted in Paragraph First was negligent; and
The negligent acts attributed to Elmer Lands by this instruction are supported by the record as required by Civil Rule 55.10, V.A.M.R., and Committee's Comment, MAI 28.01, and may be found to be acts "such as to enter into and form the direct, producing and efficient cause of the casualty, and absent which the casualty would not have happened." Danner v. Weinreich, Mo., 323 S.W.2d 746, 750(2); 65 A C.J.S. Negligence § 129, pp. 92--99.
According to Mr. Boyster, just prior to the collision he was following Mr. Lands at a distance of about fifteen feet at a speed of fifteen or twenty miles per hour when and At another time he described the relation of the two vehicles: Mr. Boyster saw noturn or slow signal from Mr. Lands by lights or otherwise, and he saw no brake light on the Lands vehicle. Mr. Lands said he looked into his side mirror but could not remember looking into the windshield mirror which admittedly would have revealed an automobile traveling directly at his rear or to his right rear, as was Mr. Boyster. This, together with the previous statement, supported the submission of the acts of contributory negligence attributed to Mr. Lands; and it would be for the jury to say whether those acts 'caused or directly contributed to cause' the collision and injuries resulting in the death of Myra Denise Lands, or whether 'defendant (negligently) permitted his automobile to come into collision with the rear of plaintiff's automobile' (Instruction No. 5) and caused Myra's death because, if Mr. Lands had looked and seen defendant, he could, among other things, have warned of his intention to slow or turn, or not have turned or slowed at all, thus avoiding collision. Myers v. Searcy, Mo., 356 S.W.2d 59, 62--63(6), "The driver contemplating a left turn must keep a vigilant lookout * * * for vehicles which may be following him"; Reed v. Shelly, Mo.App., 378 S.W.2d 291, 296(6), '* * * a driver who intends to turn left must make a proper observation to the...
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