Manley v. Horton, 51959
| Citation | 414 S.W.2d 254 |
| Decision Date | 10 April 1967 |
| Docket Number | No. 2,No. 51959,51959,2 |
| Parties | Earl E. MANLEY and Sylvia Manley, Plaintiffs-Appellants, v. Herman Lee HORTON, Defendant-Appellant, Claude Headley and Allen Pruwitt, Jr., Defendants-Respondents |
| Court | United States State Supreme Court of Missouri |
Gerritzen & Gerritzen, by Ray A. Gerritzen, St. Louis, for plaintiffs-appellants.
John J. Cole and Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent, Claude Headley.
This action arose from a two-car collision near the junction of Highway 66 (now Interstate 44) and Highway 109 in St. Louis County on August 3, 1963. In Count 1 Earl E. Manley sought recovery for his injuries; in Count 2 his wife, Sylvia Manley, sued for loss of consortium, assistance and society. Manley was a passenger in a 1961 Falcon station wagon driven by defendant Headley, both being on the way to work at the Alpha Portland Cement plant. Defendants Horton and Pruwitt were the occupants of the other car, a 1961 Corvair, with Horton driving. A motion of Pruwitt for a directed verdict was sustained; the transcript shows no actual verdict and no judgment in his favor. On Count 1 the jury returned a verdict for defendant Headley but against defendant Horton in the sum of $50,000; on Count 2 it found in favor of both defendants and against plaintiff Sylvia. The amount of the verdict and judgment against Horton was reduced by remittitur to $25,000; judgments were entered accordingly, except as noted. All after-trial motions were overruled. Both plaintiffs have appealed. Defendant Horton appealed but did not perfect his appeal, and it will be dismissed for his failure to prosecute. Only the plaintiffs and defendant Headley have filed briefs. When we refer to 'plaintiff' in the singular, we shall refer to Earl Manley. It will not be necessary to digest the pleadings, for no point is made concerning them.
Headley was driving south on Highway 109 and crossed dual lane Highway 66 on an overpass or viaduct; thence, he made a sharp turn to his left and proceeded down a ramp for approximately 465 feet to reach the eastbound lanes of 66. At the end of the ramp a 'merging' lane began, and there was a 'yield' sign; the length of the merging lane was 545 feet of full width, plus an added distance of 100 feet or more where it tapered to a point. The highway inclined slightly upward from the end of the ramp. The distance from the lower end of the ramp back to the overpass or viaduct was said to be about 500 feet. There was some difference of opinion concerning the view from the ramp back to the viaduct; plaintiff testified that one could see the road back to the viaduct when a 'short ways' down the ramp; Headley testified that there was not a good view back under the viaduct until one gets 'pretty well down' the ramp. Headley further testified: that he had driven this route many times; that as he neared the end of the ramp (traveling at about 35 miles an hour) he looked back toward the viaduct through his open window, could see for 100 feet or more under it, and saw no car; that he proceeded into the merging lane, but looked back again about where the merging lane 'starts to merge with the south lane,' and saw the Horton car; that it was then in the north lane (the passing lane) of the two eastbound lanes; that it had passed under the viaduct, and (at one point in cross-examination) he testified that it was perhaps 600 to 700 feet west of him and that he did not then form any estimate of its speed; that he drove on, gradually 'easing' into the south lane, traveling at around 45 miles an hour and had proceeded, with at least 14 or 15 feet of open roadway on his left, for four to six car lengths entirely in the eastbound south lane when his car was struck from the rear; that the right front of Horton's car struck the left rear of Headley's; he heard no horn and no sound of brakes; that the Horton car then scraped the left side of Headley's up to the left front fender, pushing it somewhat to the right, and passed on at an estimated 60--70 miles an hour; the Horton car proceeded on up the road for about a quarter of a mile and stopped on the shoulder; Headley pulled up behind it and a discussion ensued. He further testified: that he asked Horton 'How come you hit me right here in daylight, in open traffic?' and that Horton shook his head a little, 'like he'd been a little sleepy or dazed' and said that the only explanation he had was that 'he must have dozed at the wheel.' The parties exchanged the usual information, and all proceeded on. Headley's car was equipped with an inside and an outside rear vision mirror; he admitted that he sounded no horn and gave no turn signal. Headley insisted firmly that his car never touched any part of the north or passing lane, and plaintiff fully corroborated him in this. Plaintiff testified that Headley's car had not been completely in the eastbound highway lane more than two or three car lengths before the impact; that the collision occurred when Headley had traveled about one-half the distance of the merging lane; he estimated this point to be 750--800 feet from the viaduct; he never saw the other car until it struck them. No other car was nearby at the time of the collision which occurred about 6:10 a.m.
Defendants Horton and Pruwitt testified by deposition. Both were in the service and were traveling to their homes in Detroit on leave. They left Lawton, Oklahoma (Ft. Sill) at about 7:30 on the preceding evening and had driven straight through except for two or three stops for gasoline, coffee and perhaps a sandwich. The car belonged to Horton; he testified that it was in good mechanical condition. Both testified that they had agreed in advance to split equally the expenses of the trip, to share the driving, to go straight through to Detroit, that they had agreed upon the route to be followed, and that Pruwitt was to be delivered to his residence in Detroit. Pruwitt had driven from about midnight until just after daylight, perhaps 5:00 o'clock. Horton then took over the driving, and Pruwitt went to sleep. He, Pruwitt, knew nothing about the facts of the collision and was awakened by it. Horton testified: that he had slept some on the preceding afternoon, and that he slept also in the back seat while Pruwitt drove; that prior to the collision he was traveling in the right (south) lane, although he first stated the contrary; that he first saw Headley's car when it was about 5--6 car lengths ahead of him, and that it kept weaving back and forth across the center line; that he sounded his horn and started to pass, but that it moved over at that time and they collided; that the impact occurred when the Headley car was partially in the left or passing lane; that he was then traveling at about 55 miles an hour, Headley at about 50; that the only damage to his car was to the front fender and one right headlight. Horton disclosed an unusual vagueness with regard to distances and periods of time; he had no idea how long a car was; he denied stating that he must have been 'dozing.' Defendant Headley, having the benefit of a verdict, is entitled to the most favorable view of the evidence and to all reasonable inferences therefrom. Daly v. Schaefer, Mo.App., 331 S.W.2d 150; White v. Rohrer, Mo., 267 S.W.2d 31.
Plaintiff Earl Manley assigns error in the failure of the trial court to direct a verdict for him against defendant Headley on liability; his counsel say that on Headley's own testimony he was guilty of negligence as a matter of law in that he was on the highway two seconds or less before the collision, traveling 40--45 miles an hour, and that he must have entered the highway when Horton was not more than 210 feet from the point of impact, assuming the latter's speed to be 70 miles an hour; that he failed to keep a vigilant lookout in that he did not see the Horton car at 50, 100 or 300 feet, sounded no horn, gave no signal and did not swerve to his right. In all this plaintiff overlooks the fact that Headley was not entering an ordinary two-way road with a car approaching from behind and traveling in the same direction; he was entering the outside lane of a divided highway, and he testified specifically that when he saw the other car approaching, it was in the passing (or inside) lane. Regardless of the claimed admissions in estimates of time, distances and speeds, we are wholly unwilling to hold, as a matter of law, that one who enters the outer lane of a dual highway from the merging lane under such circumstances is guilty of negligence. The cases cited by plaintiff are distinguishable. Practically all of them involve the negligence of a party in entering an ordinary intersection on a street or highway without keeping a vigilant lookout or without yielding the right of way when the circumstances so required. They recognize that under such situations a mere perfunctory or fleeting glance is not enough, and properly so. The only divided highway case, Hinds v. Kircher, Mo., 379 S.W.2d 607, involved a construction of § 304.012, RSMo 1959, V.A.M.S., regulating speeds on limited access highways when other traffic is entering or leaving the highway. That case is not applicable here.
Aside from that distinction, however, we note the following. Headley did at one time estimate that the impact occurred within two seconds after he got into the south lane of the highway; he also stated at one place that when he first saw the other car it was probably 600--700 feet away. Plaintiff argues that this would mean that Horton must have traveled 600 or more feet in two seconds, which would be impossible. The statements of Headley so relied upon by plaintiff were necessarily estimates. He testified to other and different facts by way of explanation, such as locations and distances traveled, which modified the statements which plaintiff thus singles out. Moreover, a...
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