Lane v. Wilson

• Decision Date: 20 May 1965
• Docket Number: No. 8353,8353
• Citation: 390 S.W.2d 943
• Parties: Billy D. LANE, Plaintiff, v. Osby E. WILSON, Defendant and Cross-Claimant-Appellant, and Gene Arthur Fields, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 943

390 S.W.2d 943

Billy D. LANE, Plaintiff, v. Osby E. WILSON, Defendant and Cross-Claimant-Appellant, and Gene Arthur Fields, Defendant-Respondent.

No. 8353.

Springfield Court of Appeals, Missouri.

May 20, 1965.

J. V. White, Rolla, J. W. Grossenheider, Lebanon, for defendant and cross-claimant-appellant.

Northern & Crow, Rolla, for defendant-respondent.

STONE, Judge.

Billy D. Lane, as plaintiff, instituted suit against Osby E. Wilson and Gene Arthur Fields, as defendants, to recover damages for personal injuries alleged to have been sustained by Lane in a collision between a motorcycle driven by Wilson, on which Lane was riding as a passenger, and an automobile driven by Fields. In due time, defendant Wilson filed a cross-claim against codefendant Fields [V.A.M.R. Rule 55.49], in which Wilson sought damages of $12,000 for personal injuries alleged to have resulted from the same collision. Thereafter, plaintiff Lane dismissed his petition as to both defendants, and Wilson's cross-claim came on for trial before the court and a jury. At the close of the evidence offered by cross-claimant Wilson, defendant Fields' motion for a directed verdict was granted by the trial court. V.A.M.R. Rule 72.01. After unavailing motion for a new trial, cross-claimant Wilson has perfected this appeal from the adverse judgment entered upon the verdict thus directed.

The only negligence alleged in the cross-claim was that defendant Fields had failed, under the humanitarian doctrine, to avert the collision 'by swerving his automobile to its right.' In granting defendant's motion for a directed verdict, the trial court found 'no evidence of any probative force from which the jury could determine when [cross-claimant] Wilson came into a position of imminent peril' and 'no evidence to support' the single assignment of negligence in the cross-claim. Since the sole issue raised in cross-claimant's motion for a new trial and presented on this appeal is whether he made a submissible case under the humanitarian doctrine for defendant's alleged failure to swerve to the right, a detailed statement of facts is required.

Our factual review is with appropriate recognition of the basic rule that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to cross-claimant and must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence [DeLay v. Ward, 364 Mo. 431, 439, 262 S.W.2d 628, 633(3); Ornder v. Childers, Mo., 327 S.W.2d 913, 915(1); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)], tempered only by the sensible and sound limitation that this rule calls for consideration of all the facts shown by cross-claimant and not merely a part of them isolated from the remainder, and that the rule does not require the court to supply missing evidence or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give cross-claimant the benefit of inferences which are not reasonable. Kirks v. Waller, Mo., 341 S.W.2d 860, 863(3); Holland v. Lester, Mo.App., 363 S.W.2d 75, 80; Reames v. St. Louis-San Francisco Ry. Co., Mo.App., 359 S.W.2d 230, 235(2).

The time of accident was about 3:30 P.M. on Sunday, May 20, 1962, a dry, sunshiny day. The place of accident was on a graveled country road (which, in the interest of descriptive clarity, we treat as running north and south) about 4 1/2 miles north of Duke in the southwest corner of Phelps County, Missouri. With Lane riding as a passenger, cross-claimant, then 16 years of age, was northbound on a 1953 Harley-Davidson motorcycle, which he had operated previously and 'knew how to handle,' en route from Duke to the farm home where he resided with his parents. His brother, Vernon Wilson, then 19 years of age, was in an automobile following the motorcycle at a distance of about 200 feet. Both cross-claimant and his brother placed the speed of the motorcycle at 20 to 25 miles per hour.

The other vehicle involved in the accident was a southbound 1959 Ford driven by defendant Fields, then 22 years of age, of O'Fallon, Missouri. Accompanied by his bride, defendant was on his honeymoon, 'going on a fishing trip,' and as he approached the point of accident (so he said) was 'going pretty slow' at an estimated speed of 10 to 15 miles per hour because he was 'lost.' Cross-claimant thought that, when he first sighted defendant's automobile, it was traveling about 20 miles per hour.

The collision occurred on what cross-claimant's brother described as 'a pretty sharp curve,' which was a curve to the left for northbound vehicles such as the motorcycle and a curve to the right for southbound vehicles such as defendant's automobile. On and near the curve, there were three ruts or tracks in the graveled surface of the road; and, although none of the witnesses undertook to estimate elevations or the distance from any track to either edge of the road, cross-claimant's photographic exhibits sufficiently demonstrate that, as is usually true, the elevation on the outside of the curve was somewhat higher than the elevation on the inside, the west rut or track hugged the inside of the curve and was quite close to the west edge of the road, and the middle rut or track was on the west side of the imaginary center line of the road.

Cross-claimant readily conceded that, when he entered the south end of the curve, his northbound motorcycle was in the west rut or track, thereby placing him on the inside of the curve and on his left-hand and wrong side of the road. While thus traveling in the west rut or track, cross-claimant sighted defendant's approaching southbound automobile, then 200 to 300 feet distant and admittedly on its right-hand or west side of the road with its right wheels in the west rut or track and its left wheels in the center rut or track. Cross-claimant's reaction, upon sighting defendant's automobile, was to turn to his right, or toward the east--'I went to my side as fer (sic) as I could get and I hit loose gravel . . . and I couldn't make it any further.' His brother, following the motorcycle, 'saw the boys lean it [the motorcycle] over to get it over on their side, and then I seen the car, and then they hit two or three seconds after.' The motorcycle struck the outside left dual headlight on the automobile. There was no evidence as to whether the speed of the motorcycle had slackened prior to the crash.

The precise point on the road, at which the impact occurred, was in dispute. Defendant stated that, although already hugging the inside of the curve on his right-hand side of the road, he 'pulled' even farther to his right and brought his automobile to a complete stop prior to the crash. This would have placed the point of impact several feet on the west (defendant's right- hand) side of the imaginary center line of the road. Cross-claimant's version of the facts, accepted by us in ruling the issue of submissibility, was that the collision occurred on his right-hand side of the road. The character of the testimony to this effect is exemplified by cross-claimant's statements that 'I seen it [defendant's automobile] swerve and come to my side' and that, 'when I first seen him [defendant] he cut the car and I judge that the rear end stayed about two feet [from the west ditch] and the front end come over on my side of the road.' In like vein, cross-claimant's brother said that, at the moment of collision, defendant's Ford 'was sittin' kinda catty-cornered up towards the middle of the road' with 'the front end up towards the middle' and the rear end 'about two foot, I guess,' from the west ditch. The location of the point of impact with reference to the imaginary center line was not established more definitely by cross-claimant's oral evidence. However, cross-claimant and his brother did fix the point of impact on one of the photographic exhibits, both by marking an 'X' on, and by punching a pinhole in, the exhibit; and, although this obviously does not permit of a precise location of the point, it does enable us to say with assurance that, if in fact the collision occurred on cross-claimant's right-hand side of the road (as to which the exhibit standing alone would leave us in doubt), the point of impact must have been quite near to the imaginary center line.

Regardless of the precise location of the point of impact, it is clear that defendant had brought his automobile to a complete stop prior to the collision. The only evidence on this subject was defendant's positive testimony to that effect; and, in the course of trial, it was brought out that cross-claimant had so admitted in his pleadings.

As a result of the collision, cross-claimant and his passenger were thrown from the motorcycle (one witness said for a distance of 50 to 75 feet), and the cycle not only was 'demolished' but also 'caught on fire.' Although the injuries suffered by cross-claimant are not material on this appeal and the medical evidence was omitted from the transcript, it may not be inappropriate to record that the lay testimony indicated that his principal injuries were compound fractures of both legs.

The first and basic fact of liability under the humanitarian doctrine is a position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484; Hendrick v. Kurn, 352 Mo. 848, 850, 179 S.W.2d 717, 719; Anderson v. Prugh, 364 Mo. 557, 565, 264 S.W.2d 358, 364(8). 'The peril truly must be imminent--that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.' Blaser v. Coleman, 358 Mo. 157, 160, 213 S.W.2d 420, 421(2); Kelley v. St. Louis Public Service Co., Mo., 248 S.W.2d 597, 602; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 583(13). And it is only when such imminent peril arises that the humanitarian doctrine, blotting...