Offenbacker v. Sodowsky
| Decision Date | 10 September 1973 |
| Docket Number | No. 2,No. 56650,56650,2 |
| Citation | 499 S.W.2d 421 |
| Parties | Rosemary OFFENBACKER, Respondent, v. Alice Jeanette SODOWSKY et al., Defendants, and Earl Gartside Sandusky and Industrial Heating and Plumbing Company of St. Joseph, Missouri, Inc., Appellants |
| Court | Missouri Supreme Court |
E. J. Murphy, Butler, for respondent.
Brown, Douglas & Brown by Wendell E. Koerner, Jr., St. Joseph, for appellants.
STOCKARD, Commissioner.
Appellants Earl Sandusky and Industrial Heating and Plumbing Company filed this appeal prior to January 1, 1972 from a judgment against them in the amount of $41,000.
Plaintiff's action was for the wrongful death of her husband which resulted from an automobile collision. We shall set forth the circumstances of the multiple car collision according to plaintiff's version of what occurred.
On December 12, 1969, while operating his English Ford automobile northward on Highway 71 in Andrew County, Missouri, Larry Offenbacker stopped preparatory to making a left turn onto Route Y. His automobile was then struck in the rear by an Oldsmobile automobile operated by Alice Sodowsky. Both automobiles ended up crossways on the highway. Earl Sandusky was operating his employer's pickup truck northward on the highway behind the Sodowsky automobile. He saw the brake lights on the Oldsmobile come on, the rear of the car go up, and the automobile come to a 'revolting halt as though it had struck a brick wall.' Although he could have stopped his truck before reaching the Oldsmobile, Sandusky turned to the right onto the shoulder of the highway to pass, and in doing so his truck hit the English Ford knocking it into the side of a tractor-trailer truck being operated southward by William Osborne. The English Ford was demolished and Larry Offenbacker was killed.
Plaintiff's submission against appellants was that Earl Sandusky knew or could have known that there was a reasonable likelihood of collision in time thereafter to stop but he failed to do so.
By their first and seventh points appellants assert that the trial court erred in refusing to direct a verdict in their favor because (1) there was a failure of substantial evidence of actionable negligence on the part of Earl Sandusky, and (2) if such negligence was established, it was not the proximate cause of the death of Larry Offenbacker. Appellants argue that there was no evidence (1) of a reasonable likelihood of 'such a collision,' (2) or that Earl Sandusky had time to have stopped after he knew of a reasonable likelihood of collision, or (3) that failure on his part to stop contributed to cause the death of Larry Offenbacker. Appellants also argue that there was no evidence that Earl Sandusky ever saw the Offenbacker automobile, and they contend that the evidence must show that 'the two vehicles were on a collision course,' that Sandusky was or could have been aware of such collision course, and that he thereafter had time to take evasive action.
Earl Sandusky was traveling about 50 miles an hour when following the Sodowsky automobile. There was no evidence as to the distance between his truck and the Sodowsky automobile, but he testified that when he saw it come to a 'revolting halt' he could have stopped the truck before reaching it. Instead of doing so, he started 'steering to the right' and 'slammed' on his brakes, but he then 'eased off' because of frost on the shoulder of the highway. When he passed the rear part of the Sodowsky Oldsmobile over half of his truck was off the roadway and on the shoulder. He testified that as he was going around the Oldsmobile a great cloud of dust, dirt and rock flew up and blinded his view, and while he was in the cloud of dust he felt an impact which threw his truck to the right. He was off the roadway and completely on the shoulder at the time of the impact.
A reasonable likelihood means a reasonable probability, Clark v. Welch, 140 F.2d 271 (First Cir. 1944), and is something less than reasonably certain. Ottgen v. Garey, 41 Ohio App. 499, 181 N.E. 485 (1932). When Sandusky saw the Sodowsky automobile come to a halt under the circumstances he described, he knew or should have known that it had collided with something. He also knew or should have known that colliding automobiles frequently do not remain in the traffic lane where the collision occurred. It is not necessary that a person anticipate an occurrence exactly as it happened, Creager v. Chilson, 453 S.W.2d 941 (Mo.1970), and under the circumstances of this case, a jury reasonably could conclude that in the exercise of the highest degree of care Sandusky knew or should have known that if he proceeded toward the occurrence ahead of him instead of stopping, which he said he could do, and attempted to drive to the right of it there existed a reasonable likelihood of collision, either with the Sodowsky automobile or with the object with which it had collided. The jury also reasonably could find that it was the force of being struck by the Sandusky truck that caused the Offenbacker automobile to be knocked into the side of the tractor-trailer where it was demolished. It is immaterial that the Sandusky truck was not the only vehicle which collided with the Offenbacker automobile. Its collision was either a concurrent or successive cause of the injury to Larry Offenbacker which resulted in his death. Glick v. Ballentine Produce Incorporated, 396 S.W.2d 609 (Mo.1965). The trial court did not err in refusing to direct a verdict for appellants, and it did not err in giving respondent's verdict directing instruction on the basis that it was not supported by the evidence.
Appellants next challenge Instruction No. 6 on the basis that 'said instruction was an improper, unwarranted and unnecessary modification of MAI 17.01, 17.04, 19.01 and 20.01 in that the words 'to have stopped' were modified to read 'to stop."
The issue presented is that MAI 17.04 provides as follows: 'Defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have * * * stopped.' (Italics added). However, Instruction No. 6 used the words, 'in time thereafter to stop.'
Appellant asserts that there was no necessity to modify MAI 17.04 in the respect which was done, and pursuant to Brown v. St. Louis Public Service Company, 421 S.W.2d 255 (Mo. banc 1967), the modification constituted prejudicial error. Respondent admits that there is 'no adequate explanation as to why this modification was made,' except that it was an oversight.
Appellant argues that respondent has not met the burden imposed by the Brown case, supra, to make it 'perfectly clear * * * that no prejudice could have resulted from such deviation.' They also argue that by phrasing the failure to stop in the present tense rather than in the past tense, as set forth in MAI 17.04, the jury was permitted to reason from hindsight rather than foresight.
The phrase 'to have stopped' is in the present perfect tense, and 'represents action going on at any time up to the present.' The phrase 'to stop' is the infinitive of the verb 'stop' and is in the present tense. It represents present action. College Handbook of Composition, Woolley and Scott, pp. 222, 223. Therefore, both phrases represent present action, and when used in context with the words in MAI 17.04 they mean the same; the present act of stopping thereafter.
We do not in any way relax the rule announced in Brown v. St. Louis Public Service Company, supra, and any unnecessary modification of MAI should not be made. However, to set forth appellants' contention demonstrates that the modification could not have been prejudicial to appellants.
Appellants next assert that the trial court erred in permitting Gary Pittman to testify that he 'could not see any hexagon shape bolts' in photographs, previously admitted into evidence, of the Sodowsky automobile. Appellants assert that 'this was negative testimony and irrelevant.' The statement of certain additional facts is necessary.
It was plaintiff's contention that the Sandusky truck struck the Offenbacker automobile and knocked it into the side of the tractor-trailer. There was evidence, as subsequently noted, to the effect that William Osborne, the operator of the tractor-trailer, had indicated that it was the Sodowsky Oldsmobile that has been knocked into the side of his vehicle. The Sandusky truck had a bumper with hexagon shaped bolt heads. Following the collision there were indentions on the back of the Offenbacker automobile which apparently were made by a hexagon shaped object. Other evidence indicated that a collision had occurred between the front of the Sandusky truck and the back of the Offenbacker automobile.
Gary Pittman had inspected the Offenbacker and Sodowsky vehicles after the accident. He was shown four photographs of the Sandusky truck, and he testified that in each photograph he could see two hexagon bolt heads on the front bumper, and he drew a circle around the bolt heads shown on the photograph. He was then shown five photographs of the Sodowsky automobile, and was asked: '* * * do you see any hexagon shape bolts extended from the front of the Oldsmobile?' The objection, which...
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