Langdon v. Koch, 8383

• Decision Date: 17 July 1965
• Docket Number: No. 8383,8383
• Citation: 393 S.W.2d 66
• Parties: Vestal LANGDON, Deceased, by Marie Langdon, Administratrix, and Marie Langdon, Individually, Plaintiff-Respondent, v. Jeremiah KOCH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 66

393 S.W.2d 66

Vestal LANGDON, Deceased, by Marie Langdon, Administratrix, and Marie Langdon, Individually, Plaintiff-Respondent, v. Jeremiah KOCH, Defendant-Appellant.

No. 8383.

Springfield Court of Appeals, Missouri.

July 17, 1965.

Orville C. Winchell, Lebanon, for defendant-appellant.

James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiff-respondent.

RUARK, Presiding Justice.

This is a court-tried suit for damages to an automobile originally instituted by Vestal Langdon, who designated himself owner, but thereafter maintained by Marie Langdon as administratrix of Vestal Langdon's estate and in her own right as an individual.

The occurrence: A 'left turn' collision. The front of plaintiff's car struck defendant's car on the left side at the extreme rear. Both cars had been headed west on Highway M.

The scene: Defendant's home and driveway are on the south side of Highway M, and about one hundred fifty feet west of the intersection of Highway M with County Road CC. Highway M is blacktop, about twenty-two feet wide. It slopes downhill to the west from a 'rise' which is probably two hundred fifty feet back east of the intersection with CC. At the entrance to defendant's driveway are two concrete posts set so as to allow a clearance of approximately a foot on each side of an entering car. This necessitates a rather sharp turn.

The incident occurred at 5:15 P.M., May 13, 1963. It was a misty or drizzly day. The road was wet and there was enough falling moisture to require the operation of windshield wipers. Gary Langdon (age sixteen or seventeen) had borrowed his parents' car and was driving west on Highway M. According to his story, he first noticed the defendant's car ahead of him when he was about half-a-quarter east of the CC intersection. He was then about two hundred feet behind defendant and traveling about thirty-five miles per hour with his parking lights on. When defendant was 'about to cross' the CC intersection he was about one hundred fifty feet behind defendant's car. When he was fifty to seventy-five feet west of the intersection he pulled out to the left and speeded up to about forty miles per hour preparing to pass. He estimated that defendant's car was then traveling fifteen to twenty miles per hour. He testified that when he got within about ten feet of the rear of defendant's car, it made a sharp turn over onto and across the left side of the road, completely blocking that side. He (Gary) immediately attempted to swerve back to the right but was unable to avoid the collision, which took place at about the center of the road. The left front of plaintiff's car struck the left side of defendant's car at the extreme rear. Gary says he did not see any left-turn signal either by signal light or by arm.

Defendant testified that as he approached to within a couple car lengths of the CC intersection he looked to the rear and saw no other vehicle. 'It was raining at that time, and the rain on the mirror, and I could see up to where the road goes over the rise * * *.' Thereafter, he crossed CC at probably twenty miles per hour, turned on his left-turn signal, observed the green light blinking, and gradually slowed down so that his speed was ten to twelve miles per hour at the point where he attempted to turn into his driveway. He did not look again to his rear until he commenced turning his wheels to the left and started at a sharp angle across to his driveway on the south side of the road. As he thus turned left, he looked to the rear and saw plaintiff's car 'twenty-twenty-two feet' behind him, and it was too late to avoid the collision.

The findings of the court were:

'The Court finds from the evidence that Plaintiff's automobile was damaged as a result of the accident in the sum of $719.74. As Plaintiff had lent her car to her son, and as no agency-principle or joint venture-principle was involved, the defense of contributory negligence is not available to the Defendant.

'The Court finds from all the facts and circumstances in evidence that the act of Defendant, in making a left turn into his driveway, without having first ascertained that there were no vehicles behind him was negligence and that such negligence was the proximate cause of the collision in question. The Court finds that a driver of a motor vehicle intending to make a left turn has the duty to determine that such turn can be made without danger to normal overtaking traffic, and that the Defendant did not do so under the facts in this case.'

Defendant has appealed.

The conduct of Gary, driver of plaintiff's car, was not such as to endear him to a seeker of justice. He was driving at least thirty-five miles per hour in the mist or rain in a zone with a posted speed limit of twenty-five miles per hour. He admittedly gave no signal or warning of intention to pass. But appellant concedes that his possession of the automobile was a bailment and no question of agency or incompetency is involved. Therefore, contributory negligence is not involved. Appellant nevertheless contends that plaintiff did not show that defendant's acts were the proximate cause of the collision and consequent damage. The burden of his argument is that 'the evidence clearly established' that the defendant made sufficient observation to the rear before making his turn.

It is true, as appellant states, that one is not required to keep a constant lookout in all directions at the same time. This we have said many times. But the law imposes upon the motorist who intends to make a left turn across a highway the duty to use the highest degree of care to ascertain that such movement can be made with reasonable safety. That duty of necessity requires appropriate observation to the rear in order to see whether there are following or overtaking vehicles in the vicinity, and in such position, and traveling at such speed, as to make such turn unsafe under the circumstances as they reasonably appear. 'Appropriate observation' necessarily implies a look or observation at a time and place which comports with the contemplated act and which will be reasonably efficacious in informing of the probability of danger. Nor is the driver excused from fulfilling that duty because the drivers of other vehicles may be negligent. In this situation, one may not take for granted that there won't be other drivers violating the rules of the road. These things were discussed, with appropriate citations, in our recent case of Reed v. Shelly, Mo.App., 378 S.W.2d 291. We see no need to reiterate and re-cite.

The defendant's last look to the rear was, by his own admissions, too late. It was, therefore, the same as no look. Defendant says his other (first) look to the rear was when his car was a car-length or two east of the intersection with CC. He says he saw nothing on this misty or rainy day. The trier of the fact may or may not have believed that defendant took this first look; but, if he did so, obviously it was an 'ineffectual' look. One look was an inch in front of the snout and the other an inch behind the tail of the carcass. Neither of these reached the meat of the actual necessities in this case; for there was a car behind him, and that car did strike him as he made his turn. So if defendant took the 'looks,' one was too early, too far back, or too casual, and one was too late. Neither of them discharged his duty to make appropriate observation to the rear before making his left turn sharply across the road. We rule against appellant on this point.

We also have the question of proof of damage to plaintiff's automobile.

Plaintiff's witness Alexander is parts manager for the Chevrolet garage. He identified an exhibit designated as 'the repair bill,' which contained a long list of items for labor, parts, and accessories supplied in repair of plaintiff's 1960 Chevrolet, with separate charges opposite each item, totaling (with tax) $728.74. He testified that the entries on this exhibit were made by him in his own writing and as a part of his job in the regular course of business. The entries were made as the parts were 'issued out to the job.' After the repair job was completed, this final repair bill went on 'to the girls in the office.' The witness did not himself inspect the car and he did not know whether the repairs were needed as a result of the accident in question. He did testify that the charges made on the exhibit were reasonable. The appellant contends that the exhibit was not admissible because it did not conform to the requirements of the Uniform Business Records as Evidence Act and was hearsay, but his real argument is that it was not the best evidence and that it did not prove whether these repairs were a restoration to original condition or a betterment.

We think Alexander was a 'qualified witness' under Section 490.680, RSMo 1949, V.A.M.S. He made the record himself in the regular course of business and the entries were made at the time items of 'repair' were made. The trial court has considerable discretion in determining whether a satisfactory foundation has been laid for the admission of business records. State v. Weindorf, Mo., 361 S.W.2d 806; Hancock v. Crouch, Mo.App., 267 S.W.2d 36. And it must be borne in mind that the purpose of the Uniform Business...