Matta v. Welcher, 8224
| Decision Date | 10 February 1965 |
| Docket Number | No. 8224,8224 |
| Citation | 387 S.W.2d 265 |
| Parties | Ralph N. MATTA, Plaintiff-Respondent, v. Charles Edwin WELCHER and Joe Harding, Incorporated, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
John R. Martin, Rex Titus, Richart, Titus & Martin, Joplin, for defendants-appellants.
Karl Blanchard, Robert E. Seiler, Seiler, Blanchard & Van Fleet, Joplin, Graham W. Rogers, Lynch & Rogers, Shreveport, La., for plaintiff-respondent.
This is an action for personal injuries resulting from the collision of two motor vehicles. The jury returned a verdict for the plaintiff and against both defendants in the sum of $8,000.00. After an unavailing motion for new trial, the defendants have appealed.
The accident in question occurred shortly after 9:00 A.M. on March 22, 1962, either on or near the edge of Highway 71 in McDonald County, about one mile north of the Missouri-Arkansas boundary. At the time, it was fully light and the visibility was described as 'unlimited.'
At the place involved, the highway is a two-lane blacktop highway running generally north and south and is approximately 27 to 28 feet wide. To the east of the highway, running parallel, there is a gravel driveway or parking area, and at the east edge of the gravel area there are a number of business establishments, one of which is referred to as Hillcrest Manor, or 'the liquor store.' The highway appears to be straight in this vicinity, but some distance south of the point of collision the road slopes or inclines to the south. During trial, considerable emphasis was laid by the parties upon the 'sight distances' to the south from the point of collision, but it is sufficient here to say that from the approximate point of impact near the east edge of the highway and about 20 feet north of the liquor store, a car coming north could be seen at least 355 to 360 feet away.
At the time of the accident, defendant Welcher, admittedly on company business, was traveling south. Mr. Welcher, a salesman, intended to call at the Hillcrest Manor to attempt to sell a 'walkin cooler.' The plaintiff and four companions, all members of the Air Force, were riding north in an automobile owned by one of the group and being driven by another. The airmen, including the plaintiff, were on the way from their base near Shreveport, Louisiana, to Des Moines to participate in a bowling tournament.
The plaintiff's theory of submission, broadly speaking, was that the defendant failed to observe the plaintiff's vehicle approaching from the south and turned left across the highway directly into its path, thereby causing the collision. Plaintiff's evidence was that he and the members of his group had begun their trip about midnight, and about 7:00 A.M. had stopped for breakfast 'some place in Arkansas.' After breakfast, a Sgt. Curtis took over the driving and continued driving until the accident occurred. The plaintiff, seated in the front seat, had been dozing until a moment or so before the accident; he shut his eyes in anticipation of the impending collision and did not see the two vehicles collide.
As Sgt. Curtis related the incident, he was driving north, and as he 'crested the slope, or hill' he saw the defendant's vehicle entirely in the west (southbound) lane traveling south. Curtis estimated his speed, when he first saw the oncoming vehicle, to be about 60 to 65 miles per hour. The defendant, when first seen by Curtis, gave no sign of any intention to turn left. When the plaintiff's vehicle had come within 150 to 200 feet of the defendant, as Curtis estimated the distance, the defendant's vehicle 'started to edge across' the pavement. Curtis applied his brakes and sounded his horn. Finding himself unable to slacken his speed sufficiently to avoid the collision, Curtis turned his automobile to the right when he came within 'maybe six or ten feet' of the defendant, because he thought that 'by turning, we'd sort of roll with the punch, rather than hit him head on.' The attempt to turn the vehicle aside was to no avail, 'had no effect on the automobile whatever, sliding,' and the plaintiff's vehicle, still skidding, struck the defendants' vehicle 'broadside' near the east edge of the pavement and 'ended up' on the east side of the highway, 'out in the gravel area.'
As the defendant recalled the collision, he had started to turn left about 20 feet north of the liquor store, having looked for traffic ahead and behind, then 'flipped on [the] signal light,' and began to turn. When Welcher was 'over the line two or three foot,' he observed the other vehicle coming toward him 'at a pretty high rate of speed.' After a 'moment of hesitation,' Mr. Welcher concluded he had 'a better chance' to avoid the collision by attempting to complete his turn than by attempting to turn aside, so he 'immediately stepped down on [the] passing gear' and 'got off the highway as fast as [he] could.'
In any event, the two vehicles collided either near the east edge of the paved part of the road or a few feet off the road to the east, and the plaintiff, riding in the front seat, was injured when the two vehicles struck. Other facts will be more specifically noted in the course of the opinion.
The defendants first maintain that the trial court erred in refusing to receive evidence tending to show the average speed of the plaintiff's vehicle during that part of the trip preceding the accident. The defendants' position is that the first 350 to 375 miles of the trip had been covered in such a short time, considering the nature of the route taken, as to indicate consistent negligence and recklessness in the operation of the plaintiff's vehicle. They call our attention to the fact that they were not, by this evidence, attempting to show excessive speed at the very time of the accident, but instead argue that their tendered evidence indicates Sgt. Matta either acquiesced in or failed to protest against the consistently negligent and imprudent operation of the vehicle in which he was riding, and therefore tends to show contributory negligence on his part. The defendants distinguish the principles involved from those considered in Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, and cite us to Happy v. Blanton, Mo., 303 S.W.2d 633; Cunningham v. Pulver, Mo., 327 S.W.2d 227; and State v. Feger, Mo., 340 S.W.2d 716.
It was developed during the trial that the plaintiff and his companions had begun their trip between midnight and 1:00 A.M. and had traveled 350 to 375 miles before becoming involved in this casualty. They were riding in a 1959 Pontiac, apparently in good condition. This automobile belonged to one Ed Shadler, who drove during the first six or seven hours of the journey. During that time, several stops were made for coffee and gasoline, and the group paused to have breakfast 'some place in Arkansas' about 7:00 A.M. There is no evidence to indicate what their maximum or minimum speed was during the time preceding the accident, and the witnesses were unable to recall with any certainty the condition of the route or routes over which they had traveled. Sgt. Curtis' estimate was that they had traveled the first 350 to 375 miles since 'a few minutes after midnight,' while plaintiff was of the opinion that they left about 1:00 A.M. Shadler did not testify. The accident happened shortly after 9:00 A.M.
The defendants called Sgt. Victor McKee, a member of the State Highway Patrol, and, having shown that he was familiar with Highway 71 between Shreveport and Jane, Missouri (near the place involved here), offered to prove 'the condition of the road, the towns that you have to go through [and] the speed limits in Arkansas and Louisiana,' for the purpose of showing that Sgt. Matta and his companions 'must have exceeded the speed limit,' and because 'these boys were on a joint venture, and they all would have equal right of control.' This offer was refused.
We have no doubt that the precedents cited by the defendants announce sound principles, but it is unnecessary to review them here. Likewise, it is unnecessary to consider in detail the various situations in which evidence may be received concerning the manner of driving prior to reaching the scene of an accident. Admittedly, precedents can be found indicating that in some cases evidence of excessive speed, particularly over a dangerous or poorly maintained route, may indicate negligence, e. g., Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 197 F.2d 153, 156, and South Texas Coaches v. Eastland, Tex.Civ.App., 101 S.W.2d 878, 883, but those cases involve considerations very different from those involved here. We also bear in mind that the defendants sought to impute contributory negligence to Sgt. Matta as a member of a joint enterprise, and we think there could conceivably be a case in which evidence of a co-enterpriser's failure to protest or warn the driver would be admissible to show imputed contributory negligence, if the vehicle had been operated at an excessive speed and in a reckless manner for some distance prior to reaching the scene of the accident. Clay v. Sammons, Ky., 239 S.W.2d 927, 930; Anno., 46 A.L.R.2d 23, 56-57.
It is another matter to say that the trial court erred prejudicially in excluding the defendants' tender. We consider it obvious that at some antecedent point in time and distance, evidence of the manner in which the plaintiff's vehicle had been driven would become so remote as to be wholly inadmissible. There had been interruptions in the continuity of movement of the plaintiff's automobile and, at one point, a change of drivers. Evidence of the conduct of a wholly different driver at some distant point would not only have been logically irrelevant; its admission would have been downright prejudicial to the plaintiff, if only because contributory negligence cannot be proved by showing similar prior acts of negligence. 1 Even disregarding the vagueness and generality of defendants' offer of proof, and...
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