Martin v. Turner, 46027

• Decision Date: 12 November 1957
• Docket Number: No. 46027,No. 1,46027,1
• Citation: 306 S.W.2d 473
• Parties: Lawrence MARTIN, Respondent, v. Glynn TURNER and John S. Chapman, Appellants
• Court: Missouri Supreme Court

Page 473

306 S.W.2d 473

Lawrence MARTIN, Respondent, v. Glynn TURNER and John S. Chapman, Appellants.

No. 46027.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1957.

Carter & Fitzsimmons, Paul E. Fitzsimmons, Clayton, for appellants.

Manion & Hawk, James E. Hawk, Jr., St. Louis, J. O. Swink, Farmington, for respondent.

HOLLINGSWORTH, Presiding Judge.

Plaintiff recovered judgment in the sum of $35,000 for personal injuries and property damage sustained in a 'sideswiping' collision of his automobile with a motor truck owned by defendant Turner and operated by defendant Chapman in the course of his employment by Turner on State Highway No. 21 near Old Mines, Missouri, on the night of August 27, 1955, In which collision plaintiff's left arm was amputated. Defendants have appealed, alleging: (1) that the evidence establishes as a matter of law that the amputation of plaintiff's arm was directly due in whole or in part to his own negligence in operating his automobile with his left arm or elbow protruding from it; or, if such negligence was not established as a matter of law, that a submissible issue thereof was made and the court erred in the refusal of defendants' proffered instruction 'B' submitting such issue; (2) error in plaintiff's instruction 'P-2' defining the degree of care required of operators of motor vehicles upon the public highways of this state; (3) error in plaintiff's instruction 'P-4', declaring the measure of plaintiff's recovery for the damages to his automobile; and (4) that the verdict and judgment predicated thereon is grossly excessive. The disposition we make of the case makes it unnecessary to consider the last mentioned assignment.

On the evening of August 27, 1955, plaintiff and his wife, after spending about two hours in Vern Hayes' Tavern, south of Potosi, Missouri, went to a restaurant in Potosi for sandwiches and coffee. There is evidence on the part of defendants that while at the tavern plaintiff, although 'not too drunk', had consumed beer to the extent that 'he was staggering'. There is evidence on the part of plaintiff that although he had consumed several beers he was not intoxicated. About one o'clock, a. m., plaintiff and his wife left Potosi in plaintiff's automobile enroute to their home in the City of St. Louis, traveling northward on Highway 21, a two-lane concrete highway, with a white center line marker.

Plaintiff's evidence tended to show that had and his wife proceeded northward in his 1952 4-door Pontiac sedan at a leisurely speed of 30 to 35 miles per hour and that he continuously drove his automobile entirely upon the right (east) lane of the highway. They went down a hill and thence up a leftward curving incline to a point approximately midway of the curve, at which point plaintiff first saw the headlights of defendant Turner's southbound approaching truck some 'four or five car lengths' from them. The truck was then one-quarter to one-third of its width over (to the east of) the center line. Plaintiff immediately applied his brakes and veered his car to the right (east) shoulder, so that the right wheels of his automobile were on the shoulder, practically stopped, at which time the truck struck his automobile, 'just like hitting a concrete wall'. Plaintiff testified, on direct examination, that from the time he first saw the truck until it struck his automobile, his elbow was 'up on the door with the fingers on the steering wheel * * * it was not hanging outside of that door.'

Plaintiff and his wife discovered that his arm was missing. His wife got out of the car. He attempted to put the car in neutral but mistakenly shifted it into reverse. The car rolled on its wheels backward down an embankment until it struck a tree. Plaintiff was taken to the St. Louis County Hospital, where it was found that he had 'sustained a traumatic amputation of his left arm near the shoulder.'

On cross-examination, plaintiff admitted that his left elbow protruded out of the open window in the front door of his automobile as he drove to the point of collision and, for a time, continued to insist that the fingers of his left hand were upon the steering wheel. However, he further testified that he had a 'spinner affair' or 'handle' (knob?) attached to the steering wheel, and latter admitted that he could not remember whether he used both hands in turning to the shoulder. It was called to his attention that in a priorly given deposition he had testified:

'Q. When you started to make that turn you are talking about you said that you made that very abrupt turn did you use both hands to make that turn? A. No.'

Thereupon, he further testified:

'Q. * * * When you had your deposition taken you testified that you didn't use both hands, you just used one, and now you say that you don't recall? A. Well, I don't.

* * *

* * *

'Q. So you don't know whether the--again you don't know whether you used them or not? A. That's right.

'Q. From the time you saw the truck over on your side of the road until the time of the collision you don't know whether you moved your arm or not, your left arm? A. I couldn't say.'

State Highway Patrolman Clarence Maddox testified in behalf of plaintiff: He went to the scene of the collision about nine o'clock on the morning of August 28. The truck involved in the collision had a livestock rack on it. There were particles of meat and bone on the left front corner of the rack. These particles were strewn along the left side of the rack nearly to its rear. None of the tires was deflated. Bits of chrome, bone and flesh and spots of blood were on the east edge of the pavement 'some distance north of approximate point of the impact'. There were particles of glass apparently from a car mirror on the front portion of the left corner of the truck bed. There was nothing to show that the truck had come into contact with the automobile other than the aforesaid particles of glass. 'Q. In other words you'd be able to state that it had not come into contact with another automobile? A. Apparently not.'

Defendants' evidence was that, after delivering a load of cattle to East St. Louis, Illinois, defendant Chapman was returning to Potosi on the morning in question in defendant Turner's truck. Chapman first saw plaintiff's car as plaintiff was driving around a curve. Both vehicles were traveling about 45 miles per hour. Chapman was on his right (west) side of the highway. At that moment plaintiff was 'pretty well on his own side of the road'. Chapman continued on his (west) side of the road. When the vehicles were 'around seventy-five feet' apart, plaintiff drove his car across a yellow line paralleling the white center line, causing Chapman to turn his truck 'upon the shoulder of the road to the right.' 'There wasn't too bad of a jar', but Chapman knew that something had run into his truck. Plaintiff's car did not strike the front of the cab of the truck at all, but it did sideswipe the truck some place. Chapman drove to a wide spot in the road, looked back, heard screaming, drove on to a point where he could and did turn his truck around and went back to plaintiff's car, and thence to the office of the sheriff to summon aid. The side of the truck showed no evidence of collision other than some blood on it, but the tire on the left outside dual wheel was 'busted', 'it didn't go down right now', but it had a hole jabbed in it and had to be replaced.

Plaintiff's Exhibit 'A', introduced in evidence by plaintiff, is a photograph of the front and left side of plaintiff's automobile, taken after the collision. No damage is shown to the hood or the front of either front fender or to the car frame at the level of the windows. The windshield, the windows and the headlights are unbroken. A rear view mirror projects, undamaged, from the front of the frame on the right side of the car. If there was a like mirror on the left side, as presumably there would be, it seems to have been torn from the car in the collision. An indentation in the left side of the frame begins immediately to the rear of the left headlight and extends horizontally backward just above the level of the top of the left front wheel to midway of the longitudinal center of the car and apparently some twelve inches below the windows on the left side of the car. A similar indentation appears across the left rear fender immediately above the top of the rear left wheel. Plaintiff...