Ochs v. Wilson, 32821

• Decision Date: 19 March 1968
• Docket Number: No. 32821,32821
• Citation: 427 S.W.2d 748
• Parties: Herbert J. OCHS, Plaintiff-Respondent, v. Samuel R. WILSON and Majestic Building Materials Corporation, a Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 748

427 S.W.2d 748

Herbert J. OCHS, Plaintiff-Respondent, v. Samuel R. WILSON and Majestic Building Materials

Corporation, a Corporation, Defendants-Appellants.

No. 32821.

St. Louis Court of Appeals, Missouri.

March 19, 1968.

Motion to Amend Opinion or for Rehearing Denied April 19, 1968.

Joseph M. Settich, Clayton, Richard M. Stout, St. Louis, for defendants-appellants.

Murphy & Kortenhof, Ben Ely, Jr., St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This suit for personal injuries and property damages grew out of successive collisions involving three motor vehicles. The first contact was between plaintiff's car ane one driven by defendant George Joseph Diebling, followed immediately by the second collision between plaintiff's automobile and a dump truck owned by defendant Majestic Building Materials Corporation and being driven by defendant Samuel R. Wilson. Trial to a jury resulted in a verdict and judgment in favor of plaintiff for $7000 against all three defendants, and Wilson and Majestic prosecute this appeal. Diebling failed to perfect his separate appeal and it was dismissed.

Wilson and Majestic did not introduce any evidence after their joint motion for a directed verdit made at the close of plaintiff's evidence was denied. Plaintiff's sole submission as to those defendants was the alleged failure of Wilson to keep a careful lookout, and their initial contention in this appeal is that the court erred in denying their motion because plaintiff failed to make a submissible case against them on that specification of negligence. In our consideration of that question plaintiff is, of course, entitled to have the evidence reviewed from a standpoint favorable to him, and to have the benefit of all reasonable inferences which may be drawn therefrom.

The case is somewhat unusual in that neither plaintiff nor Diebling had any memory of the two collisions; witness Michael Rabbitt, who was a passenger in Diebling's car and whose deposition was read by plaintiff, was able to supply but little information; and the only other witness, Wilson, called by plaintiff, did not see the first collision, that between plaintiff's automobile and Diebling's vehicle. The collisions occurred on November 12, 1963 at approximately 5:45 P.M., on St. Charles Rock Road in St. Louis County, in the vicinity of a viaduct which carries that Road over Interstate 70. St. Charles Rock Road runs in an east-west direction and is a four-lane, non-divided highway. It was 'just turning dark; it was dusk' according to plaintiff, his headlights were on, and a light rain or mist was falling. All that plaintiff could recall was that he was homeward bound, driving westwardly on St. Charles in the lane nearest the center line, and that in obedience to a stop light he brought his automobile to a halt at Fee Fee Road, which is about two or three blocks east of the area where the collisions occurred. The grade from Fee Fee Road to the viaduct is 'slightly downgrade.' While waiting for the light to change he noticed a truck stopped to his right, in the curb lane, which bore a sand company sign but he could not state the name of the company. He conceded that during his deposition he testified that when the light changed to green he started up, got ahead of the truck, and pulled into the curb lane, but at the trial he said that he could not recall pulling into the curb lane. Plaintiff's next recollection was that of awakening in the St. Louis County Hospital while 53 stitches were being taken to sew up his scalp.

Rabbitt, in his deposition, related that Diebling drove his car off of Interstate 70 by means of the exit ramp which enabled one intending to drive eastwardly on St. Charles to enter that Road; and that, 'I remember--all I remember is coming off of that exit into the lane closest to the middle of the center line and then we went up about one hundred feet and all of a sudden I saw two lights, headlights, coming toward me and that's all I remember.' At one point Rabbitt stated that he was not sure whether yhe headlights he saw coming towards him were in the same lane that Diebling's car was in and that he didn't know what lane of traffic that car was in; but at another point he stated that, 'to my knowledge' Diebling's automobile was in the eastbound lane nearest the center line. He fixed the speed of Diebling's car as about 25 or 30 miles per Hour as it came off the exit, and said that while it was accelerated on St. Charles it didn't seem to be going fast at the time of the collision.

Wilson, called to the stand by plaintiff, as stated, testified that he was driving Majestic's tandem dump truck westwardly in the curb lane on St. Charles, that he did not see the actual collision between plaintiff's car and Diebling's but saw them 'just after they hit.' At that time plaintiff's car, '* * * was coming from the center part of the highway and spinning to the outside, * * *' and it was then in both of the two westbound lanes, including the one in which his truck was traveling. Diebling's car, at the same time, '* * * was toward the center of the highway and looked like part of it was in the inside lane of the westbound side, and part of it was in the eastbound lane.' It was also spinning. He was asked to give the positions of plaintiff's and Diebling's cars when they came to rest and stated that the front end of plaintiff's car was against a guy wire on the right hand (north) side of the road; and that Diebling's vehicle was sitting across the center line, with the front end facing south and about two-thirds of the automobile over in the westbound lane.

Plaintiff was permitted to read, as admissions against interest binding on Wilson but not on Majestic or Diebling, excerpts from the deposition of Wilson which plaintiff had taken prior to the trial. The substance of such testimony was that the vehicle he was operating at a speed of 38 miles per hour was a 1961 Mack 10 dump truck, the brakes and steering gear of which were in good condition; that it was dark, and a drizzling rain or mist was falling; that 'There was no water on the street' and 'They were not wet'; that his headlights were on; that visibility was good, and he could see 300 or 400 feet, maybe more; that he was 75 to 100 feet from plaintiff's car when he first saw it spinning; that he was not sure which way it was then pointed, but believed it was to the north, although he was not certain; and that the front of his truck came in contact with the rear section of plaintiff's car, near its trunk and bumper. He was asked:

"Q Would you tell me this, sir, traveling at, oh, a rate of speed of thirty-eight miles an hour with the means and appliances that you had on that truck to stop it, with safety to yourself and others and the weather conditions that were there at that time, what is the shortest distance that you can bring that truck to a stop at that speed under those conditions?'

"A Oh, seventy-five feet."

In addition, plaintiff also read Wilson's answer to an interrogatory in which he stated that the speed of his truck at the time of its impact with plaintiff's vehicle was, "Approximately twenty-five miles per hour."

Later in the trial plaintiff again called Wilson to the stand, and in reply to plaintiff's counsel's questions he testified that with his headlights on visibility was 'only fair' on the misty night. His 'guess' was that the point where his truck came in contact with plaintiff's car was about 250 feet from the viaduct, and his guess was that from the crest of the hill to the east, to the point where the collision occurred, was 700 or 800 feet. When he first saw plaintiff's car the intervening distance was less than 100 feet and, 'It was so close I knew I was going to hit it * * *.' His speed was then 35 miles per hour, less than the speed limit of 40. He was asked to state the distance in which he could stop his truck taking into account its condition, safety to himself, the weather and other factors, and answered, 'Well, you mean from the time I saw the danger until the time I got stopped. It would take probably over a couple of hundred feet by the time I could get it stopped.' He conceded that he had answered 75 feet in his deposition. Asked to give his speed at the time of impact he estimated it at, '* * * fifteen miles an hour, something like that' and when reminded of his answer to the interrogatory stated that he wasn't looking at his speedometer and his estimate was 15, 25. He again said plaintiff's car was spining out of control when he first saw it, that he did not see it get hit by anything, 'only heard it,' and that there was nothing to obstruct his view. On cross-examination by his counsel he related that plaintiff's car, moving rapidly, hit a telephone pole on the north side of St. Charles simultaneously with his truck's contact with it, and bounced...