Lyon v. Southard
| Decision Date | 13 April 1959 |
| Docket Number | No. 1,No. 47024,47024,1 |
| Citation | 323 S.W.2d 785 |
| Parties | Florence E. LYON, Plaintiff-Appellant, v. Vivian H. SOUTHARD, Administratrix of the Estate of Henry Monroe Southard, Deceased, Defendant-Respondent |
| Court | Missouri Supreme Court |
Donnelly & Donnelly, Robert T. Donnelly, David Donnelly, Lebanon, for appellant.
Breuer, Northern & Crow, Eugene E. Northern, Rolla, for respondent.
Plaintiff, Florence E. Lyon, widow of Lolla Thomas Lyon, filed this suit in the Circuit Court of Laclede County to recover $25,000 as damages for the wrongful death of her husband. The defendant is the administratrix of the estate of Henry Monroe Southard, deceased. Lyon came to his death as a result of a collision between a car driven by Southard and one driven by him, Lyon. Both drivers lost their lives in this collision. The allegation of negligence submitted to a jury was negligent speed on the part of Southard. A trial resulted in a verdict by the jury in favor of plaintiff in the sum of $25,000. The trial court sustained a motion to set aside the verdict and enter a judgment for the defendant. Plaintiff appealed.
The two main questions for our review are whether plaintiff's evidence was sufficient to support a finding of negligent speed on the part of Southard and whether Lyon was guilty of contributory negligence as a matter of law.
The collision in question occurred at about 11 or 11:30 p. m., on December 5, 1957, about 9 miles east of Lebanon, Missouri, on Highway 32. Southard was driving a Chevrolet and Lyon was driving an Oldsmobile, both apparently driving west. The roadway at the point of collision was of black bituminous pavement, 18 feet wide. The roadway in the vicinity of the collision was generally straight east and west and on the night in question the surface was practically dry. The collision occurred about 300 feet west of the crest of a hill. Since there were no eyewitnesses, the cause of the collision must be gathered from the physical facts found at the scene. We shall state these facts as best we can. The cars were found on the north side of the road about 325 feet or so west of the crest of a hill. The Oldsmobile was facing north; the front wheels thereof were partially in the ditch. The Chevrolet was facing west; the front end thereof was against the right side of the Oldsmobile. Tire or skid marks evidently made by the Chevrolet were found on the roadway beginning about 30 or 40 feet west from the crest of the hill, thence straight west for a distance of about 258 feet to the point of collision and then westerly and slightly to the north about 33 feet to the point where the cars were found.
The point of impact was determined by the debris found in the road immediately south of a driveway leading to the north from the roadway. Marks of tires evidently made by the Oldsmobile were found beginning on the north side of the road a short distance east of the point of impact, thence south to the ditch on the south side of the road and then back to the north side of the roadway toward the driveway above mentioned which was apparently the point of impact. From the point of impact to the point where the cars came to rest, no tire marks were found leading to the Oldsmobile. Tire marks made by the Chevrolet were found there. Both cars were completely demolished. The Oldsmobile was bent into a 'rainbow shape.' From the marks on the roadway, it would appear that by the force of the impact the Chevrolet lifted the Oldsmobile off the pavement and deposited it 33 feet to the west.
The question presented is whether the above-stated facts justify a finding by a jury that Southard was driving at a high and negligent speed. We are of the opinion that they do. The question of negligent speed depends upon the circumstances. A rate of speed which would be considered unreasonable and negligent in one set of circumstances may not be so in other and different circumstances. The essential facts may be proved by circumstantial evidence. Brawley v. Esterly, Mo., 267 S.W.2d 655, loc. cit. 659, 660(3-5). In the present case, we find some of the circumstances to be that it was night; the roadway was 18 feet wide; the hill (over which defendant passed before reaching the point of collision) was of sufficient height that a driver could not see beyond the crest until about the time he would be at the top of the hill. Then, we must consider the tire marks for about 258 feet before the point of collision and the crash against the Oldsmobile with such force that the Oldsmobile was carried 33 feet by the momentum. The Oldsmobile was bent into a 'rain...
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