Lindsey v. Williams
| Decision Date | 13 July 1953 |
| Docket Number | No. 1,No. 43236,43236,1 |
| Citation | 260 S.W.2d 472 |
| Parties | LINDSEY v. WILLIAMS |
| Court | Missouri Supreme Court |
Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Springfield, Mo., Walter S. Pettit, Jr., Springfield, for appellant.
Glenn A. Burkart, Frank C. Mann, Mann, Mann, Walter & Powell, Springfield, for respondent.
This is an action for damages for personal injuries sustained by Verna Helen Lindsey, a minor, while riding as a guest in an automobile owned by defendant, Holis Williams, and operated by one Mary Savage under defendant's immediate supervision. The suit was instituted by Verna's father, Burney J. Lindsey, as her natural guardian and next friend. Upon trial in the Circuit Court of Greene County, she recovered a verdict for $15,000 and judgment was rendered accordingly. Defendant's motion to set saide the judgment or in the alternative for a new trial was overruled upon condition plaintiff remit $6,000 of the judgment, with which she refused to comply. On May 21, 1952, the trial court sustained the motion for new trial on the sole ground the verdict was excessive. On May 23, 1952, Verna's father filed a motion in the trial court reciting that Verna had died on May 22nd, that he was the administrator of her estate, and praying that he be substituted as party plaintiff, which motion the court sustained. Thereupon, Burney J. Lindsey, administrator, as the duly substitued plaintiff, appealed to this court. For convenience, we will continue to refer to Verna Lindsey as plaintiff and to Hollis Williams as defendant.
The amount of the judgment set aside by thr trial court and the amount sought in the petition ($15,000) being in excess of $7,500, this court has jurisdiction.
In this court, the defendant, in addition to defending the action of the trial court in holding the verdict excessive, also urges: (a) that the trial court should have sustained his motion to set asise the judgment upon the ground that plaintiff's evidence tended to prove specific negligence, whereas, the action was pleaded and submitted under the res ipsa loquitur doctrine; or, in the alternative, (b) that the trial court should have granted him a new trial because of error in overruling his last application for continuance based upon his absence from the trial due to military service.
On the night of May 13, 1950, plaintiff, then sixteen years of age, was employed as a car-waitress at Atlee's Drive-In Restaurant situate on South Glenstone Road, in the City of Springfield, Missouri. On that night she had a date to meet Willard Phillips after her work ended. About midnight, Phillips, accompanied by three other young men, including defendant, and three girls, including Mary Savage, came to Atlee's Drive-In in defendant's car, a two-door 1941 Chevrolet. Plaintiff got into the car and sat on the left side of the rear seat. Next to her, in the rear seat, sat Willard Phillips, to his right sat Rose Savage and on the extreme right sat Wilbur Williams. In the front seat, Mary Savage sat under the wheel, defendant sat in the center next to Mary, and Linford Cloyd sat on the right of defendant.
Plaintiff knew all of those present. It was decided that they would drive a short distance south on Glenstone Road to get something to eat. The party, with Mary Savage driving, proceeded southward on Glenstone Road, at a speed of 30 to 35 miles an hour. There were few, if any, other cars on the highway. After they had gone one or two miles, they had reached and were proceeding along a straight stretch of roadway which there extended in an easterly and westerly direction. The car began to swerve, left the travelled portion of the roadway, crossed the shoulder and an adjacent ditch, crashed through a fence and collided head-on with a tree. Plaintiff was thrown from the car and sustained severe injuries, the extent of which will be more fully hereinafter detailed. There were no intoxicants drunk on the trip nor were there any in the car and none had been drunk by any of the parties prior to the trip.
State Highway Patrolman Francis E. Stephens arrived at the scene of the wreck within about fifteen minutes after it occurred. He found plaintiff lying at the side of the car suffering from a comminuted fracture of her right leg, with the bones protruding from the flesh. Glenstone Road is paved with 'blacktop'. For some distance on each side of the point where the car swerved the road extends in a declining grade for those travelling in the direction in which defendant's car was being driven. The travelled portion is approximately twenty feet wide and easily accommodates two-way traffic. Stephens traced the car's tracks back from the tree to a point on the highway where they first began to show. They were skid marks, running practically down the middle of the highway, more on the left-hand side than on the right, then veering to the right, thence off the highway onto the shoulder, across a small ditch and through some brush to the tree. The marks extended approximately 100 feet on the highway and 40 to 50 feet from the highway to the tree.
Mary Savage testified by deposition in behalf of plaintiff: She had no memory of what happened on the day of the accident. She had driven several cars, including defendant's, on a few occasions before the accident, but not enough to know much about them. 'I don't know the gears or anything like that.' The owner was always present when she drove a car. She only operated the steering wheel, the owner by her side would operate the gears.
Portions of a deposition given by defendant on May 23, 1951, were read in evidence by his counsel. On direct examination, defendant testified: He was present by the said of Mary Savage as she drove his car on this occasion. He knew she could safely drive the car and considered her driving ability 'satisfactory'. Mary drove his car about ten miles around town before they went to Atlee's Drive-In for plaintiff, during which time she was in control of it and operated it safely. She knew how to shift gears and apply brakes. He then testified: No tire blew out. He did not attempt to grab the wheel.
A second deposition given by defendant on July 3, 1951, was also read in evidence by defendant's counsel. In that deposition, defendant testified: Mary properly drove the car, at all times shifted gears, applied the brakes and kept it on the right side of the highway. The lights on the car were perfect and Mary dimmed them as they met oncoming vehicles. He had direction and control of the car, but did not 'set' the direction. On cross-examination, he admitted he had theretofore given a signed statement to a person who was investigating the accident and that he had read it before signing it and that it was true and correct. Upon objection of defendant's counsel, the following portion of the statement was not read to the jury: 'I have a policy of insurance with Commercial Casualty Insurance Co. of Newark, New Jersey, and Milwaukee Mechanic's Insurance Co. of Milwaukee, Wisconsin, for $15,000 and $30,000 liability, and $50 deductible collision for my car, Policy number MF-1107.' The remainder was admitted in evidence and read to the jury. Pertinent parts thereof are as follows:
* * *
Is the res ipsa loquitur doctrine applicable in this case? Defendant says it is not, first, because, he contends, a jury question is presented as to whether Mary Savage was negligent in failing to stop the automobile before it collided with the tree, and, second, plaintiff had as much information as to the cause of the accident as defendant. He argues that inasmuch as the car was only travelling at 30 to 35 miles per hour at the point where the tire marks began and thereafter travelled 100 feet before leaving the pavement and 40 to 50 feet before striking the tree, this court knows, and a jury would know, it could have been stopped by an application of the brakes before it hit the tree; ergo, specific negligence was proved. We do not think so. In Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, 476, we quoted with approval from Huddy's Encyclopedia of Automobile Law: 'The doctrine...
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