Meier v. Moreland

Decision Date12 September 1966
Docket NumberNo. 1,No. 51429,51429,1
Citation406 S.W.2d 97
PartiesLinda MEIER et al., Minors, by and Through Joyce Meier Ray, Their Mother and Next Friend, Respondents, v. Ernest Junior MORELAND, Appellant
CourtMissouri Supreme Court

Thurman, Nixon, Smith & Howald, Robert Lee Smith, John W. Howald, Hillsboro, for respondents.

Robert Lee Campbell, Clayton, for defendant-appellant.

HOUSER, Commissioner.

Action for damages for the death of Eugene James Meier. Plaintiffs are his three minor daughters, proceeding by their mother and next friend. The death occurred as a result of a head-on collision between two automobiles driven by the deceased and the defendant Ernest Junior Moreland. Eleven jurors signed a verdict for plaintiffs for $25,000 damages. Defendant has appealed from the ensuing judgment.

Defendant filed a motion for a directed verdict at the close of plaintiff's case. The motion was overuled. Defendant stood on the motion and put on no evidence. On appeal defendant claims that the court erred in failing to direct a verdict for defendant because (1) plaintiff's evidence was so sketchy that a verdict could only be based upon surmise, speculation and conjecture; (2) the evidence disclosed that plaintiffs' decedent was guilty of contributory negligence as a matter of law in operating his automobile (a) of the wrong side of the road and (b) at a speed which the jury found to be negligent in accordance with Instruction No. 1.

The only eyewitnesses were the drivers of the two cars. Defendant, the only survivor, did not appear personally at the trial and no evidence was introduced on his behalf. Plaintiffs' case consisted of the death certificate, a stipulation by defendant's counsel that deceased was killed as a result of this collision, admissions by defendant at the coroner's inquest, some photographs of deceased's Plymouth automobile, and the testimony of a state highway patrol trooper and the widow.

Defendant made the following admissions against interest at the coroner's inquest: 'Q. Would you just tell us in your own words what you were doing and what transpired during this time of the accident? A. Well, I had been to St. Charles. I came out in the fog. I made a wrong turn, came down that road, I seen I was on the wrong road and I turned around and went back, started back to interstate 70. Q. Where had you intended to go? A. I was going back home. When I came out of St. Charles I got over on the wrong road in the fog. I couldn't see. Q. Then you proceeded up this far before you noticed you were on the wrong road. A. Before I realized where I was at. Q. Do you have any idea what speed you were traveling at that time? A. Oh, some where around forty to forty five. Q. What would you say the distance of visibility would be? A. Thirty or fifty feet, it wasn't too good.'

The highway patrol trooper received a call at 1:12 a.m. and proceeded to the scene of the accident, and made an investigation. He testified as follows: The highway runs north and south at that point. The 2-lane concrete pavement is straight with a slight up grade to the south. He observed two vehicles, decedent's Plymouth on the east side of the road, headed in a generally southeastern direction (it had been traveling north) and defendant's Oldsmobile, which was also off the road on the east side headed in a generally southeastern direction (it had been traveling south). The left side and fourteen inches of the front of the Plymouth were damaged. The damage started at the front, taking in the left front headlight, and down the left side. The left door post was torn out. The damage extended on back past the left rear wheel housing. About eighteen inches of the left front portion of the Oldsmobile was damaged. There was only one tire mark on the pavement, 'which would have been by the 1956 Oldsmobile.' It started three inches to the east of the center line of the pavement and continued down along the center line a short distance, then veered to the east side of the road, going off onto the shoulder and led up to the Oldsmobile where the Oldsmobile came to rest on the east side of the road. There were no tire marks whatsoever in the southbound lane. The Plymouth did not leave any tire marks on the pavement. The tire marks from the Plymouth were on the east shoulder of the road, which would have been a lane of traffic for a northbound automobile--the right side of the road of the northbound lane. There was debris on the highway when the trooper arrived on the scene. The major concentration of debris was in the northbound lane, although there was some debris in the southbound lane. It was extremely foggy that evening. Visibility was very limited. 'What you could see in your own headlights would be approximately fifty feet, the maximum.' At the scene defendant stated to the trooper that he had been traveling south at that time; that the fog was very heavy; that visibility was very limited; that he saw the other vehicle's headlights--the dim headlight in the fog, and then they hit. Defendant stated he thought he was far enough over but he was not sure. He did not say he was on his side of the road or on the other side; he did not know whether he was on his own side of the road or not. He made a statement relative to his speed but the trooper did not recall what it was. He stated that he had been in a tavern at St. Charles, where he drank one beer; that he started to return home in Creve Coeur (which is 8--9 miles from St. Charles); that he made a wrong turn and went north of St. Charles beyond Winfield (20--25 miles) before realizing that he was going in the wrong direction. He was on his way back when the collision occurred. The trooper estimated that the northbound Plymouth driven by the decedent was traveling at approximately 50 m.p.h. and that the southbound Oldsmobile driven by the defendant was traveling at approximately 60 m.p.h. The trooper was not of the opinion that the tire mark on the pavement was made by the rim of the wheel hitting the ground after a blowout on the left front wheel. He testified that the mark was made by the left front tire, not by the rim, and without giving any explanation stated that it was made 'after the point of impact,' that it 'started after the impact'. Later he said that he determined that the 'possible point of impact' was at the beginning of the tire mark. There was 'nothing other than that to indicate clearly where the point of impact was.' From the center of the Plymouth tire to the outside edge of the fender is from ten to twelve inches.

At plaintiffs' request the court gave Instruction No. 1 which, after hypothesizing that Eugene James Meier was driving his automobile north on U.S. Highway 79 in Lincoln County and that defendant was driving his automobile south, and the collision between the two automobiles, contained the following submission of negligence: 'and if you further find that at the time and place of said collision and immediately before said collision it was dark and foggy on said highway so that defendant could then only see a distance of 30 to 50 feet ahead of him on said highway but that defendant then drove his automobile at a speed of 40 to 45 miles an hour or more, and if you further find that such speed was a high and excessive speed for defendant to drive his automobile there under the circumstances shown in evidence, and if you further find that defendant also drove his automobile in such a...

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11 cases
  • Walker v. Massey, 8606
    • United States
    • Missouri Court of Appeals
    • June 10, 1967
    ...was no eyewitness or direct evidence of conduct indicating negligence. Lyon v. Southard, Mo., 323 S.W.2d 785, 788(4); Meier v. Moreland, Mo., 406 S.W.2d 97, 100(2); Keeney v. Callow, Mo., 349 S.W.2d 75, 80(8, 9). Of course there is, as instant defendant underscores, no room for the presumpt......
  • Martin v. Sherrell
    • United States
    • Missouri Court of Appeals
    • June 27, 1967
    ...defendant's automobile. Of course, plaintiff was not conclusively bound by her estimates of time, speed or distance (Meier v. Moreland, Mo., 406 S.W.2d 97, 101(4); McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739, 744(3)), but the foregoing is illustrative of the state of the ......
  • Vaeth v. Gegg
    • United States
    • Missouri Supreme Court
    • November 20, 1972
    ...v. St. Louis Public Service Co., Mo., 350 S.W.2d 739; Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795; Meier v. Moreland, Mo., 406 S.W.2d 97, 101; Vaccaro v. Moss., Mo.App., 410 S.W.2d 329; Schneider v. Dannegger, Mo.App., 435 S.W.2d 413, to act after he first saw appellant 70 ......
  • German v. Kansas City
    • United States
    • Missouri Supreme Court
    • June 24, 1974
    ...hour, calculated from skid tests which he conducted; however, plaintiff was not bound and concluded by such estimate. Meier v. Moreland, 406 S.W.2d 97, 101(6) (Mo.1966). Accordingly, there was a jury issue on the issue of speed, and resolution of the conflicting testimony was for the jury. ......
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