Lycon v. Walker

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: WOODROUGH, Circuit
• Citation: Lycon v. Walker, 279 F.2d 478 (8th Cir. 1960)
• Decision Date: 06 June 1960
• Docket Number: No. 16366.,16366.
• Parties: L. K. LYCON, Appellant, v. Norma Lee WALKER, Appellee.

279 F.2d 478 (1960)

L. K. LYCON, Appellant, v. Norma Lee WALKER, Appellee.

No. 16366.

United States Court of Appeals Eighth Circuit.

June 6, 1960.

Roy F. Carter, Kansas City, Mo., for appellant.

Lyman Field, Kansas City, Mo., for appellee.

Before SANBORN, WOODROUGH, and BLACKMUN, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is from a twenty-nine thousand dollar judgment for the plaintiff for damages on account of personal injuries she suffered in a collision between a motorcycle on which she was riding as a passenger going in a northerly direction on U. S. Highway 65 at a point about five and a half miles south of Marshall, Saline County, Missouri, and an automobile carrying two persons travelling on the highway at that point in a southerly direction. Elbert Neil Burgard was operating the motorcycle with the plaintiff Norma Lee Walker behind him and he was killed. The defendant, L. K. Lycon, was operating the automobile with his wife beside him and she was killed. There was diversity of citizenship and federal jurisdiction. In her amended complaint, Norma Lee Walker charged defendant Lycon with negligence directly causing the accident in driving on the wrong side of the road into the vehicle on which plaintiff was a passenger, and defendant Lycon specifically denied that he operated on the wrong side of the road and alleged that the plaintiff's damage was contributed to by plaintiff's carelessness in that the operator of the motorcycle on which she was riding as a passenger was operating it on the left side of the center of the highway; failing to operate it as near the right hand side of the highway as practicable, and failing to operate upon his own or proper side when by the exercise of ordinary care on her part she could have protested so that the operator of the motorcycle would have had time to turn to the right hand side of the highway and thereby avoid a collision. Issue was also joined as to charges of excessive speed, failure to keep a proper lookout, and to have the vehicles under control.

The plaintiff and the defendant driver of the colliding automobile were the only surviving witnesses to the accident. The plaintiff testified that the motorcycle on which she was riding "was at all times operated on the north-bound lane of travel." She saw the defendant's automobile "just after it topped the crest of the hill." It was "approximately part on his lane and part on our lane." "Then it just slid into the right hand lane or east lane of traffic the wrong lane and then went into a skid and was skidding sideways." It continued "just sliding sideways toward us in our lane of traffic" to such an extent that "it was completely blocking the east lane of the highway and sliding sideways." She said the driver of the motorcycle continued to operate in his proper lane of travel because there wasn't "enough time to have turned either way." He was braking the motorcycle with both the hand and the foot brake. The motorcycle was going between 40 and 45 miles an hour and the defendant's car was being operated at a speed "much faster than we." She located the point of impact in the center of the north bound lane the motorcycle's lane.

The defendant Lycon testified that he first saw the motorcycle when it was about 300 feet away from him. It was across the center line heading for defendant's side of the road. It kept coming on his the wrong side of the pavement. Defendant honked his horn and applied the brakes sliding his wheels. The motorcycle kept coming on his the wrong side of the road. Defendant's speed was reduced to about 4 miles an hour. The motorcycle was coming at a speed of 60 to 70 miles an hour and never moved out of defendant's path. Defendant considered turning to the right but felt that would cause the impending collision to be head-on, so when the motorcycle was about 36 feet from him he swung to the left and pushed the accelerator clear to the floor board hoping to jump out of the way to the left. The car did jump forward. When the two vehicles were separated about 15 feet the motorcycle turned back to its right towards the defendant and ran into the side of defendant's automobile. The defendant lost control of his automobile. It ran over to the left side of the road off the slab, rolling over. On direct examination defendant testified: "the motorcycle run right into the side of my car on my side of the road." He did not change or modify that positive testimony. He said on cross-examination that he was just starting to make the turn to the left when the motorcycle struck him which caused his car to "buck and jump."

The automobile left skid marks on the highway which started out parallel with defendant's right edge of the pavement and then veered, curved to the left across the road and up until they veered across the road the skid marks were entirely on the south bound lane. They varied in intensity indicating that one, two, or maybe all four wheels had been skidded sideways after it had started across the pavement. There was no abrupt change in the direction of the skid marks and they did not indicate the point of impact.

The court instructed the jury that it was the contention of the plaintiff that the collision occurred as a result of the negligence of the defendant in operating his motor vehicle upon the left side of the highway and that it was the contention of the defendant that the motorcycle was on its left side of the highway. The court also instructed that the law requires motor vehicles to be operated on the right side of the highway and not on the left side of the highway and "if we do not operate them on the right side of the highway and an accident results then we are guilty of negligence for which we may be held liable."

The defendant requested an "emergency instruction" on the ground that "the testimony indicates and shows that the defendant was at some time during the course of this accident on his left side of the highway but it is defendant's contention that he was there due to the fact of the motorcycle being in front of him which created an emergency and had to go to the left side of the highway."

The Court declined to give the instruction, stating: "The Court believed that in view of the manner in which the case was being submitted, that is, the simple fact that it the motorcycle was operated on the wrong side of the street, it was not a question for emergency, and that was the reason for the Court's declining to do that."

On this appeal it is contended for reversal that the Court erred: (1) in refusing to give the "emergency instruction;" (2) in unduly emphasizing the lack of contributory negligence on plaintiff's part; (2b) in its instruction relative to negligence of the motorcycle operator not being imputable to the plaintiff; (3) in admitting the testimony of the doctor witness as to the history of plaintiff's injuries; and (4) in entering judgment on an excessive verdict.

(1) As to the "emergency instruction."

In ruling on defendant's motion for new trial the Court observed that "it was the contention for the defendant that the motorcycle was being operated on the left side of the highway and that he was on the right side of the highway. The Court charged the jury that if the motorcycle was at any time immediately before the accident on the left hand side of the highway and that the collision resulted from the operation of the motorcycle on the left hand side of the highway, then the defendant would not be negligent."

The statement of the Court is in accord with the defendant's pleading and with his evidence. He adduced no evidence that he was confronted with an emergency that caused him to operate his car on the wrong side of the road. His testimony was positive that the motorcycle was so far on the wrong side of the pavement that it lacked only a foot and a half from the edge of the road on that side and that it ran right into the side of his, defendant's car on his side of the road.

There is no question that under Missouri law a motorist confronted with an emergency caused by another coming towards him on the wrong side of the road may be excused under appropriate circumstances for getting on the left side. But no such case was presented here. Here there was no more reason to submit to the jury that the defendant may have gotten on the wrong side of the road because of emergency than to submit to them that the motorcycle may have gotten on the wrong side because of an emergency. Neither of them presented that situation.

The Missouri Supreme Court was confronted with a substantially similar situation in Cantwell v. Cremins, 347 Mo. 836, 149 S.W.2d 343, 347. There the parties to a collision of motor vehicles each pleaded and adduced evidence that the other was operating on the wrong side of the road. On the appeal the appellant complained that the Court's instructions (which were to the same effect as those given here) excluded from the consideration of the jury any excuse or reason the appellant may have had for being on the wrong side of the road. The Missouri Supreme Court concluded that the instructions were not subject to the criticisms made. It held that the recovery was based on the theory that the party found to be negligent was on the wrong side of the road and that that was the sole cause of the collision. The court said:

"The sharp and main issue at the trial was whether the driver of the truck (plaintiff) or the driver of the Plymouth (defendant) violated the statute of Illinois (requiring meeting drivers on the highway to pass on the right) above referred to and relied on by both plaintiff and defendant Cremins. The driver of the truck or the driver of the car did not claim any excuse for being on the left side of the road. Each claimed that he was not. The evidence, as viewed from the record, overwhelmingly supported plaintiff\'s theory. Under the theory of the case as tried the instructions given were proper."

The appellant...