Moore v. Kopp
| Decision Date | 14 February 1966 |
| Docket Number | No. 51059,No. 2,51059,2 |
| Parties | Anna K. MOORE, Appellant, v. Carrie KOPP and R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased, Respondents |
| Court | Missouri Supreme Court |
Robert A. McIlrath, Flat River, and W. T. McGhee, Brentwood, of counsel, for appellant.
Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Kopp.
E. L. McClintock, Jr., Flat River, for respondent, R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased.
PRITCHARD, Commissioner.
Plaintiff, a guest passenger, contends that prejudicial error was committed against her in the trial of her $75,000 personal injury action in these particulars: The giving of a contributory negligence instruction of plaintiff; the giving of sole cause instructions of the acts of one Blain in operating his Cadillac car on passing plaintiff's host, defendant Mrs. Kopp; that the sole cause instructions were in conflict with the contributory negligence instruction; that the court erroneously permitted the record of plaintiff's testimony in another previous trial to be read; and in permitting counsel for defendant Manley to argue an innuendo of settlement with said Blain. The action was dismissed without prejudice as to Blain at the outset of the trial because of lack of service of process upon him. Defendant Manley's decedent, Schramm, died subsequent to the collisions in question.
The verdict and ensuing judgment were for both defendants and against plaintiff upon her claims of negligence. The facts pertinent to this appeal are: On the morning of September 11, 1959, defendant Mrs. Kopp and another passenger, Mrs. Sigman, picked up plaintiff at her home in Flat River, Missouri, in order that they all might go to their work at Lee's Shopping Center in Farmington, Missouri. Mrs. Kopp was driving her Mercury car, Mrs. Sigman was seated in the front seat to her right, and plaintiff was seated in the rear seat directly behind Mrs. Kopp. They drove out of Flat River onto Highway 67 and proceeded south thereon for five miles at a speed of between 35 and 40 miles per hour. They arrived at the Parkview Cemetery which was to the east of Highway 67 which is there built on a slight gradual curve, curving to the left as one proceeds southward. The weather was dry, the sun was shining, and it was a little after 8:00 o'clock in the morning. The highway there was of concrete, 18 feet wide, with two lanes, southbound and northbound, separated by a marked line in the center. At the north end of the curve there was a yellow 'no passing' line in the southbound lane. Along the west side of the pavement there was a shoulder 17 feet wide which widened at an entrance to the residential property of Ratleys. A wide, open shoulder extended the length of the cemetery on the east side of the pavement.
As Mrs. Kopp's car approached the extreme northern end of the cemetery, plaintiff noticed Blain's car pull alongside them, its front end right by plaintiff. Plaintiff immediately glanced at Mrs. Kopp who had her head turned toward Mrs. Sigman, and was saying something to her--talking to Mrs. Sigman. Plaintiff immediately glanced ahead at the highway, and saw a northbound car (Schramm) coming toward them at a speed between 45 and 50 miles per hour. Blain was in the left (northbound) lane going southward and attempting to pass Mrs. Kopp's car. A distance of 360 feet (on cross-examination plaitniff testified 375 to 400 feet) then separated Blain and Schramm. Schramm did not swerve to the right or slow down, but continued coming north in the northbound lane. Blain then started to pull in front of Mrs. Kopp's car (Schramm being then 300 feet away), and as he did so he 'sort of' brushed or tapped it, and plaintiff said, 'Oh, Carrie, watch it.' As Blain continued to turn into the southbound lane in front of Mrs. Kopp, her front left fender hit him about the middle of the back door. Blain continued, and Schramm, who was then turning to his right, was struck by Blain, the left fenders of the cars coming together, and just as they did, Mrs. Kopp's car struck Blain's car in the rear--'it wasn't a hard bump'--for the third impact between them.
As soon as Mrs. Kopp bumped Blain in the back (the third impact) he speeded up, followed the highway down quite a distance and stopped. Mrs. Kopp, after the last impact, screamed and threw up her hands. Instead of following the curving highway she picked up speed (her statement to witness Parker later at the scene was: 'I evidently hit the gas instead of the brake and shot up over this bank.'), went straight on the west shoulder for about 100 feet, crossed Ratley's driveway, went up an embankment for 24 feet, broke a telephone pole guy wire, went through a shrubbery bush, and crashed head on into a huge tree in Ratley's lawn.
Mrs. Sigman testified that as they were driving along all of them were talking, and she was reading a letter from her son to both of them. She heard plaintiff say, 'Oh, Carrie' or 'Look out, Carrie' at a time when Mrs. Kopp was looking at Mrs. Sigman, and when Blain was coming up alongside the Kopp car. At the time Mrs. Kopp hit Blain (the second time) as he came around the front left of Mrs. Kopp's car, Schramm was still in the northbound lane 100 to 150 feet away. At the time of the impact between Blain and Schramm, the latter was partially on and partially off the pavement, and had not prior thereto swerved to the right or left or slackened his speed.
Mrs. Kopp (who married Huff after the time of the collisions and before trial) testified she saw Blain as he came from behind, around her, at which time Schramm's car was approaching from the south. As she saw Blain starting around her she tried to pull over, to swerve to the right (and manager to swerve a foot or so to the right), but he hit her and knocked her on out of the road. Blain hit Schramm also just before he hit Mrs. Kopp with his right front fender (one time only) on her left front door. Mrs. Kopp's car left the road immediately and went up the embankment. She was unable to get it under control after that. She denied that she ever threw her hands up in the air, and testified that her hands never left the wheel. She denied that as she was proceeding south on the highway and just before Blain started around she turned her attention from the road and looked toward where Mrs. Sigman was sitting. She did not remember whether Mrs. Sigman was reading a letter to her as she was driving down the highway, or that Mrs. Sigman was talking about photographs of her son or son's children. She denied also that she told Parker she had put her foot on the accelerator and not on the brake--she did not remember Parker being there. On cross-examination Mrs. Kopp testified that her automobile was in good condition, with good brakes, good steering apparatus, and that it responded easily and readily to her brakes and gas acceleration, and that she did put on her brakes as soon as her car started to leave the road.
With respect to Schramm, Mrs. Kopp testified that just his rear fender was on the highway when Blain struck it, and then struck her. She heard the other collision take place before Blain hit her car. Blain was in the northbound lane (he never did pull in front of Mrs. Kopp so that she hit him in the rear of his car). She first saw the Schramm car when it was right at the top of the hill (to her south), but she did not keep watching it--she was watching the the one which was passing her. After the Schramm car came over the hill she saw it next about the time they were hit. Mrs. Arthur Smith testified that she was riding in an automobile being driven by her daughter, Alice Trokey, following Mrs. Kopp when Blain passed them. At the time Blain started to pass Mrs. Kopp she saw the Schramm car approaching, and later saw Blain hit Mrs. Kopp's car (once) which was immediately knocked into the yard and into the tree. Immediately after the Blain car got into the left lane the Schramm car started off toward the shoulder, its left rear (fins) being involved in the collision with Blain. Mrs. Trokey testified that when Blain got about half way around Mrs. Kopp's car the Schramm car had already started trying (gradually) to pull off the highway, and had pulled completely off except for the left back fin which was out on the highway, within three or four seconds after she first saw him.
Plaintiff submitted her case against Mrs. Kopp on the theory that Blain turned his automobile back into her lane and that she permitted the left front of her automobile to strike Blain's rear, and thereafter she failed to follow the curve of the highway and went straight into a tree, and in thus operating her automobile she failed to exercise the highest degree of care. Against defendant Manley, plaintiff's theory was that Schramm negligently failed to reduce his speed or to swerve his car to the shoulder, but forced the Blain car to turn sharply and abruptly into the southbound lane in front of Mrs. Kopp.
Instruction No. 6, upon the subject of plaintiff's contributory negligence of which she complains, submitted that when plaintiff first observed the Blain car starting to pass Mrs. Kopp's car, and saw the Schramm car approaching, she saw that Mrs. Kopp was conversing with Mrs. Sigman and was unaware of the presence and position of the Blain car, and that plaintiff failed to promptly warn Mrs. Kopp of the presence and position of the Blain automobile, and in so failing she failed to exercise ordinary care for her own safety and was thereby negligent, plaintiff could not recover, and the verdict must be in favor of Mrs. Kopp and against plaintiff.
As to the instruction barring plaintiff's claim against Mrs. Kopp because of the submitted finding that she failed promptly to warn Mrs. Kopp of the presence of the Blain automobile, plaintiff says that it...
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