Lemonds v. Holmes

• Decision Date: 02 February 1951
• Docket Number: No. 6960,6960
• Citation: 22 A.L.R.2d 418,241 Mo.App. 463,236 S.W.2d 56
• Parties: , 22 A.L.R.2d 418 LEMONDS v. HOLMES et al.
• Court: Missouri Court of Appeals

Page 56

236 S.W.2d 56

241 Mo.App. 463, 22 A.L.R.2d 418

LEMONDS v. HOLMES et al.

No. 6960.

Springfield Court of Appeals, Missouri.

Feb. 2, 1951.

Ward & Reeves, Caruthersville, for appellants, Dewey Ramsey and Virgil Greenway.

McHaney & McHaney, Hal H. McHaney and Flake L. McHaney, all of Kennett, for appellant-respondent.

Elbert L. Ford and Jones & Jones, all of Kennett, for respondents Carlmac Holmes and B. W. Young.

VANDEVENTER, Presiding Judge.

This case arose from an automobile collision on State Highway 25 about 2 1/2 miles south of Senath, Missouri. It was tried to a jury, which returned a verdict against plaintiff and for defendants Holmes and Young and for plaintiff and against defendants, Ramsey and Greenway in the sum of $5,000.00. From a judgment as to Holmes and Young, plaintiff appeals, and defendants Ramsey and Greenway appeal.

Greenway was night marshal of Senath and Ramsey was day marshal, or Chief of Police, under whom Greenway worked. On the night of November 22, 1947, at about 10 o'clock, they received word that two men were driving a truck upon the streets of Senath, that they were drunk and that the truck was without lights. The officers borrowed a DeSoto automobile from a friend of Greenway's, started out to investigate and, if necessary, apprehend these law violators. They finally located them within the city limits and followed them as they were going south on State Highway 25, their truck weaving from side to side of the highway. The officers followed for more than two miles and until the truck was driven out on the highway shoulder. At the direction of Ramsey, Greenway, who was driving the DeSoto, went on south of the truck, approximately one-fourth mile, turned around and came back north, parking the DeSoto partially on the west and left hand side of the highway, with the lights on. They got out and found the truck stopped on the highway and the driver of the truck 'slumped' over the wheel in a drunken condition. They took the driver and his companion, who was also drunk, out of the truck and put them in the back seat of the DeSoto. Greenway then got in the truck, under instructions from Ramsey, and backed it off the highway and into the west ditch. The left side of the truck was about four feet west of the paved portion of the highway, and it was facing south.

In the meanwhile, plaintiff, her girl friend, Frances Bess, and defendants, Holmes and Young were riding around in a Ford Coach. They had been to Kennett and driven back down to Senath with the intention of going to the midnight show. Defendant Holmes and one Paul Buck had driven the car to Kennett where they had picked up the two girls and Buck had driven back to Senath, at which place Young asked Holmes if he should drive and was told to go ahead. There Paul Buck left the party. Young then drove the car with Frances Bess sitting to his right in the front seat. Holmes was on the left side of the rear seat and plaintiff was sitting to his right. They drove out of Senath on Highway 25 until they had passed what was known as the one mile curve and then started south on a straight stretch of road, which had no curves for approximately 2 1/2 miles. They passed a truck on the one mile curve and then started down the straight highway toward Cardwell. Young, driving the car, saw the lights of the parked DeSoto, when it was about one-fourth mile south of him. He flashed his lights two or three times from dim to bright and back to dim, signaling the car, the lights of which he saw ahead, endeavoring to cause the supposed driver thereof to dim his lights. When he made the first signal, he took his foot off the accelerator but there was no response from the car ahead. It appeared to him that the car was advancing in the middle of the highway and he assumed that the driver would turn to the proper side of the highway before they met. He watched the road all the time and he reduced his speed when he was about 300 yards from the DeSoto. He had applied his brakes and slowed down from about 50 miles an hour to 35 or 40, when he discovered the DeSoto was not going to turn. He applied his brakes again and turned to the left in an attempt to avoid a collision and the right half of the front of the Ford struck the right half of the front of the DeSoto, resulting in the injuries complained of. At the time of the collision, his estimated speed was twenty miles per hour. He was rendered unconscious by the impact.

Young testified that the lights of the DeSoto were on bright. Defendants Ramsey and Greenway testified they were on dim. Greenway testified that the collision occurred immediately after he had backed the truck into the ditch and while he was alighting from the cab with his right foot on the fender and his left foot on the ground. He estimated the speed of the Ford at 60 miles per hour and was of the opinion that it did not slow up before the collision.

The plaintiff suffered grievous injuries and there is no contention that they were insufficient to support the verdict of $5,000.00, but it is contended by appellants Ramsey and Greenway that the court committed error in not sustaining their motion for a directed verdict as to them at the close of plaintiff's evidence and at the close of all the evidence, for the reason that the evidence showed no causal connection between the acts of defendants and plaintiff's injuries.

Plaintiff, in her appeal, contends that Young and Holmes were guilty of negligence as a matter of law and for that reason, the verdict for them should be set aside. Other questions raised in the briefs will be discussed after we have decided these two main contentions.

In considering whether there was sufficient evidence of negligence to submit the question to the jury, this court must consider the whole evidence and give the prevailing party the benefit of all facts and circumstances favorable to or tending to support his or her theory of the case with every reasonable inference that may be drawn therefrom, while the evidence of the losing party or parties contradicting the prevailing party's evidence, or any evidence favorable to the loser, must be excluded from consideration. Silvey v. Herndon, Mo.App., 234 S.W.2d 335.

Bearing this rule in mind, plaintiff's evidence showed that the two officers followed two drunken persons, driving on the highway without lights, for more than 2 miles. The car they were following was weaving from one side of the highway to the other and finally 'pulled off the black top on the shoulder.' The officers drove on past for approximately 1/4 mile, turned around and came back to where the truck was stopped on the highway, the drunken driver slumped over the wheel. Now instead of parking on the right and east side of the road and dimming their lights, (which would have been as easy or easier) they left their lights on bright, crossed the left half of the highway and parked on the left and west side of the center of the pavement. Both officers testified that the car was parked about one foot on the west edge of the pavement but the evidence also showed that the right front half of the Ford struck the right front half of the DeSoto. Young, the driver of the Ford, testified that he was always on the paved portion of the road and Greenway said that immediately before the time of the collision, the Ford might have been within one foot of the west edge of the pavement. From this evidence, the jury would have been justified in believing that the DeSoto was parked more than one foot on the slab, otherwise, the right half of the two cars could not have collided. This conclusion was strengthened by the testimony of defendant Young and Frances Bess that the lights of the Desoto appeared to be in the center of the highway and advancing. It is true that one of the defendants testified that the shoulder on the west of the highway was soft and slick but he does not say that it was impossible to have parked the car off the highway on the west side. He testified:

'Q. Could you have parked your car any farther on the shoulder? A. May have but I was afraid I may get stuck and we wanted to get the drunks and get back to town.'

The evidence shows no reason why he did not park on either the east side or east shoulder of the highway. It had been raining and the pavement was wet, in fact, one of the officers testified that it was sprinkling at the time, and the wet pavement would naturally, to some extent, affect the reflection of the headlights. Greenway testified that he thought the speed of the Ford was 55 or 60 miles an hour at the time of the collision, and also that he had seen the headlights up the highway at the time he drove up in the DeSoto. They loaded the prisoners in the DeSoto and Greenway backed the truck in the ditch and was alighting from the cab when the collision occurred. He estimated it took three minutes to park the truck. Ramsey estimated the whole time from their arrival until the collision was four minutes. If this is true, the Ford could not have been traveling at the speed estimated by the officer, even if it were 1 1/2 miles away when he first saw it.

At the time of the collision, Greenway was stepping from the truck, his right foot was on the fender and his left foot on the ground, which would have placed his back to the oncoming Ford. While he was in the truck he had been watching Ramsey south of him, directing his activities with a flashlight. From his admitted position, the jury would have been justified in assuming that his observation as to the speed of the Ford and its location on the highway was not accurate, to say nothing of his failure to see Young blink his lights from bright to dim. He said the Ford passed close to his legs but also that it might have been one foot from the west edge of the pavement. Taking all these facts into consideration, the jury must have thought, and certainly could have had reasonable grounds for so thinking, that the DeSoto...