McDaniels v. Hall, 24832

• Decision Date: 05 February 1968
• Docket Number: No. 24832,24832
• Citation: 426 S.W.2d 751
• Parties: Emmett B. McDANIELS, Plaintiff-Respondent, v. Floyd E. HALL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 751

426 S.W.2d 751

Emmett B. McDANIELS, Plaintiff-Respondent, v. Floyd E. HALL, Defendant-Appellant.

No. 24832.

Kansas City Court of Appeals, Missouri.

Feb. 5, 1968.

Rehearing Denied April 1, 1968.

Miller & O'Laughlin, George T. O'Laughlin, Kansas City, for appellant.

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for respondent.

CROSS, Judge.

Plaintiff sued to recover $5,000.00 damages for bodily injuries allegedly sustained in a collision between automobiles driven by the respective parties. Upon trial to a jury plaintiff's case was submitted solely under the rear end doctrine. The jury returned a unanimous verdict in favor of defendant, upon which judgment was duly entered. Thereafter, and more than thirty days after filing date, plaintiff's motion for a new trial was sustained on the ground the trial court erred in giving defendant's Instruction No. 4 submitting the issue of plaintiff's contributory negligence. Defendant has appealed.

In a single point defendant contends that the trial court erred in granting a new trial on the ground it had erred in giving Instruction No. 4 because: (a) there was ample substantial evidence from which the jury could find that plaintiff was contributorily negligent in either of the two respects submitted therein; and (b) the instruction correctly declared the law on the submitted grounds as prescribed by MAI. The text of Instruction No. 4 reads as follows:

'Your verdict must be for the defendant whether or not defendant was negligent if you believe:

First, plaintiff either:

failed to keep a careful lookout, or suddenly turned to the left at a time when such movement could not be made with reasonable safety, and

Second, plaintiff's conduct, in any one or more of the respects submitted in paragraph First, was negligent; and

Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.

(M.A.I. 29.01, M.A.I. 17.05, M.A.I. 17.06 (Modified)'

Plaintiff has filed a motion to dismiss the appeal on the ground that defendant has violated Civil Rule 83.05(e), V.A.M.R. in that he has stated his appeal point purely in the abstract without reference to the specific grounds upon which the submission of contributory negligence was predicated or reference to what the 'ample substantial evidence' in support thereof might be. The omission of which plaintiff complains is not of sufficient gravity to warrant the drastic action plaintiff requests of us. We deny the motion and proceed with our review of the case.

In determining whether Instruction No. 4 was supported by evidence we must consider the evidence in a light most favorable to defendant and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence, and disregard plaintiff's evidence unless it tends to support the grounds of contributory negligence submitted by the instruction. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656; LaFata v. Busalaki, Mo.Sup., 291 S.W.2d 151; Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775. We shall state the facts accordingly.

The collision occurred on February 24, 1965, on the northbound roadway of Van Brunt boulevard in Kansas City. Van Brunt is an expressway at the place of the collision, with two lanes for northbound travel and two lanes for southbound travel, separated by a median strip some 35--40 feet wide. The accident occurred at about 6:15--6:30 A.M. It was then still dark, there was no moon, and there were no street lights in the vicinity, but it was clear and there was no precipitation, fog, mist, snow or rain to obscure visibility. An eight inch snow had fallen during the previous evening and part of the night. The snowplow had been along to clear the course for northbound travel before the accident occurred and had undertaken to clear both of the northbound lanes. In clearing the right hand or outside lane, the plow had encountered a small compact car, a Sunbeam, which had been parked or abandoned on the extreme right portion of the traveled surface. The obstructing vehicle forced the plow to curve out and go around it, as it occupied approximately one-half of the right hand lane--the extreme outer half. The cleared surface was still covered with a skim of snow and was 'some' slick and slippery. The accident occurred at a place where the highway gradually curved first toward the east and then in a northerly direction.

The automobiles of both plaintiff and defendant got onto Van Brunt at its intersection with Elmwood by making right turns from Elmwood after stopping for traffic signals. When the signals changed, plaintiff's car moved out first, followed by defendant's. After the two automobiles got onto Van Brunt, defendant continued to follow plaintiff in the right hand lane, directly behind him, separated by a distance of seven to ten car lengths. Both cars were traveling approximately 15 to 20 miles per hour. After traveling in that manner for approximately a block and a half, defendant then moved into the left lane and increased his speed to approximately 20 to 25 miles per hour. After so traveling another block and a half, defendant had nearly come abreast of plaintiff's car and was about to pass it. When the front of defendant's car was about ten feet from the rear of plaintiff's car, plaintiff suddenly swerved his vehicle to the left to avoid the Sunbeam, and then 'tried to cut back' when he saw defendant's car. These movements developed into a 'swing' or skid which carried the vehicle partly into the left lane, and into collision with defendant's automobile, whereby the right front portion of defendant's car came in contact with the right rear of plaintiff's. Defendant explained that 'all of a sudden he came around to my lane' and that 'after his left rear had got into my lane he started to spin or slide or whatever it was and then, of course, his right rear came onto my lane just as I was right on him.' The actual impact of the cars occurred in the left lane, and happened before plaintiff's car had got alongside the Sunbeam. The force of the impact threw plaintiff's car into the Sunbeam and turned it completely around. It 'ended up' headed sough 'a little bit ahead of the Sunbeam.' Defendant's car came to rest in a snow bank on the left side of the roadway.

Plaintiff testified that he first saw the Sunbeam when his automobile was about 50 feet from it; and that about the same time (when he was 50 feet from the Sunbeam) he swerved to the left to go around it. He stated: 'So of course when I saw this little car, I knew that I had to move out to my left to get around it. I put my signal lights on and started to pull out, and I noticed this car in back of me, in my rearview mirror, the lights of it, and I pulled out and was straightened up to go by it--The little Sunbeam.' His car moved about 30 feet from the time he saw the Sunbeam until there was contact with defendant's car. When that occurred, plaintiff's car was still about 20 feet (south) from the Sunbeam. The collision took place within one or two seconds after he turned out around the Sunbeam. Plaintiff admitted that at the time of the impact his car was straddling the center line that separates the two lanes.

Before plaintiff made his 'swerve out around the Sunbeam' he was aware there was a car coming from the rear. He testified, 'I saw lights in my rear view mirror', that he also had a left outside rear view mirror, and that he could see defendant's car 'coming up' in both mirrors. As to whether defendant was traveling in the left hand or right hand lane immediately prior to the collision plaintiff's testimony was inconsistent. He testified both ways. At one point he testified that he thought Mr. Hall was in the lane to his left. Later he testified that defendant was in the right hand lane; that he was in 'the same lane as I was, behind me'. Plaintiff took the final position in his testimony, (and it is his position in this appeal) that defendant was traveling immediately behind him in the right hand lane at the time he swerved to go around the Sunbeam.

Immediately after the accident and upon inquiry by defendant as to what had occurred, plaintiff said 'it happened so fast' he didn't know for sure. He admitted that he saw defendant coming up behind him, and made the statement that 'When I was moving over, I saw you and I tried to cut back.' When interviewed by a police officer making a report of the accident plaintiff stated that he was northbound on Van Brunt at 20 to 25 miles per hour and swerved to avoid a number three vehicle and was struck by Mr. Hall's automobile. Plaintiff's 'explanation' for the accident 'as far as he was concerned', was his 'swerve to get around the Sunbeam.'

Defendant contends that the submission of whether plaintiff failed to keep a careful lookout was supported by evidence in two separate aspects, to-wit: (1) evidence from which the jury could find that plaintiff could have seen the Sunbeam sooner than he did and (2) evidence that although plaintiff knew defendant's car was approaching from the rear, he negligently failed to observe and discover that it was traveling in and about to pass him in the left lane. As constituting evidence to support the postulate that plaintiff could have seen the Sunbeam before he got to within fifty feet of it, defendant points to his own testimony, in which he stated that with his own lights he could see a vehicle ahead 'probably 20 or 30 car lengths, maybe. I'm just kind of guessing.' The foregoing is not a sufficient evidentiary basis for a jury finding that plaintiff could have seen the Sunbeam from a distance greater than fifty feet. Even if it be assumed that plaintiff's headlights had illuminating power equal to defendant's generous 'guess', that circumstance alone would not justify the finding in question. 'Whether the failure to keep a lookout at any time or place constitutes negligence depends upon the conditions and circumstances and...