Marshall v. Bobbitt

• Decision Date: 17 July 1972
• Docket Number: No. 55865,No. 2,55865,2
• Citation: 482 S.W.2d 439
• Parties: Dorothy MARSHALL, Plaintiff-Appellant, v. James Edward BOBBITT, Defendant-Respondent, Thomas J. Cavanaugh, Administrator of Estate of John Marshall, Deceased, Defendant-Appellant
• Court: Missouri Supreme Court

Page 439

482 S.W.2d 439

Dorothy MARSHALL, Plaintiff-Appellant, v. James Edward BOBBITT, Defendant-Respondent Thomas J. Cavanaugh, Administrator of Estate of John Marshall, Deceased, Defendant-Appellant.

No. 55865.

Supreme Court of Missouri, Division No. 2.

July 17, 1972.

Padberg, Raack, McSweeney & Slater, Godfrey P. Padberg, Spitznagel & Todt, Charles P. Todt, St. Louis, for appellant.

Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent, James Edward Bobbitt.

HOUSER, Commissioner.

Dorothy Marshall brought this action for damages for personal injuries against James Edward Bobbitt and the Administrator of the Estate of John S. Marshall, Deceased, arising out of a collision between a pickup truck in which she was riding as a passenger, driven by her husband John, and a Dodge automobile driven by Bobbitt. The cause was submitted against defendant Bobbitt under an instruction directing a verdict for plaintiff upon belief that Bobbitt either failed to keep a careful lookout or drove at an excessive speed; that Bobbitt's conduct in any one or more of these respects was negligent and that such negligence caused the collision. The jury found for plaintiff and against both defendants in the sum of $25,000. Both defendants filed motions for new trial. The court sustained Bobbitt's motion for error in submitting the case on excessive speed and ordered a new trial as to Bobbitt on the issue of liability only. The court overruled the administrator's motion and ordered that the judgment against the administrator be held in abeyance pending a new trial of plaintiff's case against Bobbitt. Both plaintiff and administrator appealed.

From the evidence favorable to the prevailing party the jury could have found the following facts: The collision occurred in the afternoon of July 11, 1967 on Highway 49 in Crawford County. It was a clear, warm day. The asphalt highway, 23 feet in width with a 5-foot shoulder on each side, ran north and south at point of collision (hereafter 'PC') and was straight for several hundred feet south. Bobbitt was northbound; Marshall southbound. The scene of the accident is visible from a point 800 feet to the south, but proceeding north the highway descends into a valley and a northbound motorist cannot see it again until, ascending from the valley, he reaches a point 375 feet to the south, at which position the scene of the accident again comes into view. At a point roughly 200 feet south of PC a northbound motorist reaches a plateau and the highway is generally level for 200 feet to PC. PC was 10 feet south of an unused side road that formerly led to a now abandoned farmhouse. Debris at PC was found in the highway centered around the center line. The side road intersects the highway at right angles and runs east from the highway. There was a tree along the side road but a vehicle moving westwardly thereon toward the highway could be seen by a motorist northbound on the highway.

Bobbitt, born and raised in that area, was familiar with the roads and with the fact that there was a 'dip' in the highway and a side road as one ascends from the dip. He had driven the highway many times previously.

Marshall's pickup truck moved westwardly on the side road, emerged from the side road into the highway just prior to the collision, and at moment of impact the pickup was either on a 45 angle headed southwest, or had just reached the west (southbound) lane and straightened out in that lane.

The daytime speed limit was 65 m.p.h. Bobbitt's speed was 60--65 m.p.h. according to Bobbitt; from 65--85 m.p.h. according to other witnesses. Counting reaction time the total stopping distance at 60 m.p.h. is 306 feet; at 65 m.p.h., 352.5 feet; but with all four wheels locked by the brakes and the car skidding this is reduced to 294 feet at 60 m.p.h. and 338.5 feet at 65 m.p.h. At 75 or 80 m.p.h. the stopping distance would be a great deal longer . . . up in the 400's or 500's.

At the earliest instant at which Bobbitt could have seen the pickup truck approaching the highway the Dodge was 375 feet south of PC. Bobbitt actually saw the pickup truck for the first time when the Dodge was 160 to 170 feet south of the side road. Leon Skaggs, son-in-law of the Marshalls, had emerged from the side road in advance of the Marshalls. Skaggs, driving a camper truck, was proceeding slowly southwardly at 10 m.p.h., waiting for the pickup truck to catch up with him. Skaggs saw the oncoming Dodge coming north at a high rate of speed. Skaggs estimated the speed of the Dodge at no less than 80 m.p.h. He said the Dodge was 'bouncing'--its front end raising and lowering as it approached on the highway. Knowing that the pickup truck was entering onto the highway and sensing the danger Skaggs attempted to attract the attention of the driver of the Dodge by blinking his headlights, waving his arm out of the window and blowing his horn, but the speed of the Dodge continued unabated. The Dodge passed Skaggs' camper truck at to PC. PC was 10 feet south of an unused

Bobbitt testified that when he first saw the pickup truck it was traveling westwardly in the side road at from 10--25 m.p.h., 15 to 40 feet short of P.C. It kept coming out, without stopping. There was other testimony that the pickup truck stopped 4--5 east of the edge of the asphalt pavement before pulling out onto the highway. As soon as Bobbitt saw the pickup truck he immediately swerved to the left and slammed on the brakes which locked, leaving two skid marks on the asphalt 100 feet in length, in a generally straight line parallel to the center line of the highway. These skid marks 'led right up to' P.C. When Bobbitt swerved and put on the brakes the back half of the pickup truck was still in the driveway and the front half was out in the highway. The pickup was moving and it continued to move until the collision occurred. The Dodge's left skid mark was laid down in the southbound lane, 1 foot 7 inches west of the center line, its right skid mark in the northbound lane, east of the center line. When brakes are applied and a vehicle goes into a skid the vehicle proceeds directly straight ahead in the direction it was going and as long as this condition continues the driver has absolutely no control over the movement of the vehicle.

Skid marks on the gravel side road, commencing 15 feet east of the east edge of the asphalt pavement, ran southwestwardly across the asphalt 19 feet to the PC.

Estimates of the speed of the Dodge at PC ranged from 45--59 m.p.h.; that of the pickup truck at from 4 to 20 m.p.h. The Dodge came to rest headed generally west by southwest, its front end near the center of the asphalt pavement, leaving 50 feet of skid marks from PC to the place where it came to rest. The pickup truck came to rest north of PC, headed generally cast, its front end slightly east of the west edge of the asphalt pavement. It left 59 feet of skid marks from PC to the place where it came to rest. The speed of the Dodge after PC was 28 m.p.h.; the speed of the pickup truck after PC was 19.6 m.p.h. Both vehicles were demolished beyond repair. The main force of the impact took effect on the left front fender and left front of each vehicle. Mr. Marshall was killed and plaintiff Dorothy Marshall was seriously injured.

I. On plaintiff Marshall's appeal.

The questions raised on this appeal: whether the case was properly submitted on excessive speed and/or failure to keep a careful lookout; whether there was evidence that excessive speed and/or failure to keep a careful lookout was a proximate cause of the collision, must be answered in the affirmative.

The proper test of...