McColgin v. Morgan

• Decision Date: 18 December 1979
• Docket Number: No. 10241,10241
• Citation: 592 S.W.2d 263
• Parties: Elsie McCOLGIN and Densel McColgin, Plaintiffs-Respondents, v. Eula Lois MORGAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 263

592 S.W.2d 263

Elsie McCOLGIN and Densel McColgin, Plaintiffs-Respondents, v. Eula Lois MORGAN, Defendant-Appellant.

No. 10241.

Missouri Court of Appeals, Southern District, En Banc.

Dec. 18, 1979.

Donald E. Bonacker, Jerry L. Reynolds, Bonacker & Reynolds, Springfield, for plaintiffs-respondents.

Nobel I. Leighton, Jr., David W. Bernhardt, Bussell, Hough, Bernhardt, Leighton & O'Neal, Springfield, for defendant-appellant.

MAUS, Judge.

The defendant appeals from adverse jury verdicts in a motor vehicle accident case. The accident occurred at the "T" intersection of U. S. Highway 137 and Wildwood Drive north of Raymondville. In general terms, the accident occurred when defendant Eula Morgan who was approaching Highway 137 from the east on Wildwood stopped and then made a U-turn on Wildwood. Plaintiff Elsie McColgin, who was approaching from the south on Highway 137, apparently (and in due deference to the defendant's argument the term is used advisedly) swerved to her left and collided with a south-bound Toyota Jeep-type vehicle driven by Fred E. Williams.

At the scene, Highway 137 ran generally north and south and had a blacktop surface 20 to 22 feet in width with shoulders of approximately 2 feet. Wildwood extended east from its "T" intersection with Highway 137. There were curves in Highway 137 north and south of the "T" intersection. The sight distance down the highway between the two curves was approximately 800 feet, being from the center of Wildwood approximately 500 feet to the north curve and approximately 300 feet to the south curve. Wildwood was a gravel road of undisclosed width that fanned out as it approached Highway 137 so that at the intersection the mouth of Wildwood was 150 feet wide. While generally Wildwood was a gravel road, it had a blacktop surface at the mouth extending east approximately 14 feet from the east edge of Highway 137. There was a fence around the field at the southeast corner of the intersection. Along the east side of Highway 137, south of the intersection, this fence was set back an undisclosed, but as appears from the photographs in evidence, an appreciable distance from the east side of Highway 137. The fence was also set back from the south side of Wildwood. At the time of the accident there was brush along this fence that obscured vision across the field at the southeast corner. At the time of trial, and when the photographs were made, the fence row had been cleaned out, but the fence was in the same place. Highway 137 as it approached the intersection from the south was straight for approximately 12 steps from the south edge of Wildwood where it joined the highway, or for approximately 22 steps from the corner post in the fence. At the time of the accident it was raining and Highway 137 was described as slick.

The morning of the accident Elsie McColgin had left her child with the baby sitter at the usual time and was driving north on Highway 137 to her work in Salem. Because of retrograde amnesia the plaintiff had no memory of the events surrounding the accident.

Fred E. Williams, employed as a wood superintendent, was driving from his home in Salem south on Highway 137 to his work in his employer's timber land. He approached the intersection at an estimated speed of 40-45 miles per hour. As he was coming out of the curve north of the intersection he first saw the defendant's automobile starting to turn, headed northwest on Wildwood, moving at a vaguely estimated speedy of 5-10 miles per hour. He observed the defendant make at least a portion of her U-turn and come "awful close" to Highway 137. He didn't see the plaintiff "exactly the same time, but close. . . . There wasn't too much difference." When he took his eyes off the defendant's automobile, she was between a third and half way through her U-turn. When he saw the plaintiff's automobile, it was coming out of the turn south of the intersection sliding. He didn't think he hit his brakes or swerved before he saw the plaintiff. But, in response to the following question, "In other words, the first time you had to brake or swerve was when the McColgin car was coming at you in your lane?" He replied: "I wouldn't say." He did swerve and brake and was sliding. He was sure he didn't get over the centerline. He summed up the situation by saying, "Well, I was coming around this curve and I saw this one car coming up Wildwood Lane and I didn't know if it was going to stop or not; of course, I got on my brakes and about this time there come the McColgin car from the other way and it was sliding." He first wouldn't say how fast McColgin was going then guessed faster than he, and later added, not much faster.

H. E. Lewis, driving a "10-wheeler" truck, was following Williams at a distance of about two or three car lengths. He first saw the Morgan car just "before the road began to make the 'Y', as she come up to the 'Y' and circled out toward the left like she was going out on 137, but, instead, she made a U-turn." He did not see her stopped and she came within 6 or 8 feet of Highway 137. When he saw the defendant he braked and began to slide and the Williams' Toyota was sliding. He first saw the McColgin automobile when it was 20 or 30 feet from the Williams' Toyota and the automobile was sliding. It appeared to him that the Williams' Toyota and McColgin car were sliding sideways, with "the back ends next to the ditch and the front ends was going right down the line when they hit." Most of the debris was in the south-bound lane, although some was kicked off the north-bound lane. The debris was located to the north of an extension of Wildwood. When the impact occurred the defendant's automobile had partly completed her U-turn. Because the impact sent the Williams' Toyota to the west and the McColgin car to the east, Lewis' truck slid through and came to a stop.

Defendant Eula Morgan testified she intended to turn south on Highway 137 and go to Hartshorn. She approached the highway as if she was going to do so and stopped. She didn't know how far from the highway she stopped, but her front wheels were not on the asphalt apron. Because the highway was wet and slick, she decided to go back home. She backed up 2 or 3 feet, and then "I drove slow, right around in a U-turn." She stated she had stopped at the only place where you could see through the brush. There she looked but could see only 60 feet to the north and 30 or 40 feet to the south. She could not remember if she looked after backing and before starting forward. In making her U-turn, she had at least her two left wheels on the blacktop approach and could have come within 6 or 7 feet of the highway. While she was making her turn, she heard something, looked in her mirror, and stopped. She stopped 25 feet from the highway with her automobile headed northeast. At that time the McColgin automobile had come to rest, partially in the ditch at the northeast corner of the intersection.

On appeal the defendant contends the evidence was not sufficient to support the verdicts and the evidence did not support the verdict-directing instructions. Because the answer to the latter contention will be determinative of the first, the points will be considered in inverse order. The questioned instructions authorized verdicts for the plaintiffs if the jury found the defendant negligent in that she (1) failed to keep a careful lookout, or (2) made a U-turn when she knew, or by the highest degree of care should have known, that her movements would cause traffic on Highway 137 to take evasive action to avoid a collision with her automobile. In determining the sufficiency of the evidence in respect to those attacks, this court must consider the evidence in the light most favorable to the plaintiffs and give them the benefit of any favorable inferences that may reasonably be drawn therefrom and disregard the defendant's evidence unless it tends to support the grounds of negligence submitted. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1973).

The defendant's first attack is that failure to keep a careful lookout should not have been submitted because there was no evidence she could have seen the McColgin automobile. She cites her testimony that she stopped at the only place the fence row permitted her to see, which was when the front of her car was more than 14 feet east of the east edge of the highway. From that point she could see 30 to...