Ogle v. Webb, 11968

• Decision Date: 14 October 1981
• Docket Number: No. 11968,11968
• Citation: 623 S.W.2d 582
• Parties: Michael Shane OGLE, Dexter Wayne Snyder and Derek A. Snyder, Minors, by and Through Their Guardian, John Ogle, Jr., Plaintiffs-Respondents, v. Thurman WEBB, Defendant-Appellant, and Kenneth E. Myers, Defendant.
• Court: Missouri Court of Appeals

Page 582

623 S.W.2d 582

Michael Shane OGLE, Dexter Wayne Snyder and Derek A. Snyder Minors, by and Through Their Guardian, John Ogle Jr., Plaintiffs-Respondents, v. Thurman WEBB, Defendant-Appellant and Kenneth E. Myers, Defendant.

No. 11968.

Missouri Court of Appeals, Southern District, Division Two.

Oct. 14, 1981.

Edward J. Hershewe, Joplin, for plaintiffs-respondents.

Malcolm L. Robertson, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-appellant.

PREWITT, Presiding Judge.

This is an action to recover damages for the wrongful death of plaintiffs' mother as the result of two related automobile collisions. A jury verdict and judgment was entered in favor of defendant Webb and against plaintiffs and in favor of plaintiffs and against defendant Myers with damages assessed at $130,000. Plaintiffs' motion for a new trial as to defendant Webb was sustained on the ground that a contributory negligence instruction given was erroneous. Defendant Webb appeals. He contends that the trial court erred in failing to sustain his motion for directed verdict and in granting a new trial because: (1) plaintiffs failed to make a submissible case against him and (2) the contributory negligence instruction was not erroneous.

If plaintiffs did not make a submissible case against appellant, any errors in the trial are immaterial and judgment should have been entered for him. Hayes v. Reorganized School District No. 4, 590 S.W.2d 115, 116 (Mo.App.1979). Plaintiffs submitted their case on the theory that appellant either drove on the wrong side of the road or could have known that there was a reasonable likelihood of a collision in time to have slackened his speed and avoided it. We first consider the evidence and reasonable inferences therefrom most favorable to plaintiffs, Wilson v. Missouri-Kansas-Texas Railroad Company, 595 S.W.2d 41, 44 (Mo.App.1980), to see if a case was made on their wrong side of the road submission.

The collisions occurred shortly after midnight on October 27, 1974, near the Joplin airport. The decedent, Mary K. Snyder, was the operator and her brother, Rex Ogle, a passenger in an automobile going east on Highway 171, a two lane road in Jasper County, Missouri. Defendant Myers was also eastbound on Highway 171 to the rear of the decedent's automobile. Appellant was proceeding in a westerly direction on Highway 171 toward decedent's vehicle. Appellant and decedent's vehicles were both traveling approximately 40 to 45 miles an hour. Defendant Myers testified he was going approximately 45 to 50 miles per hour. Rex Ogle testified that when he saw the headlights of appellant's vehicle "they were swerving" and, although he could not see the center line of the highway, that the vehicle "crossed the center line". Ogle believed that appellant's car went across the center line "because of the degree of the swerve". The decedent's vehicle was in its proper lane of travel. Upon seeing the headlights his sister "slowed down". When Webb's vehicle got closer "she hit her brakes". When she applied the brakes "we was just right up on it (appellant's vehicle)". About the time she applied the brakes her vehicle was struck in the rear by the Myers' vehicle and knocked across the road into the appellant's car. The second impact occurred immediately after the first with just a "split second difference between them". Defendant Myers testified that because of "a slight horizon" he first saw the decedent's automobile when he was approximately 60 feet behind it. At that time it was either stopped or going very slowly, "maybe 10 miles an hour". He did not know if the vehicle had stopped or slowed suddenly because he had not previously seen it. He swerved to the right but could not avoid it, hit the right rear and knocked it across the center line into appellant's car.

Appellant claims that there was no substantial evidence that his vehicle was on the wrong side of the road or even if there was, that it occurred at a time when he was close enough to decedent's vehicle to have breached any duty or posed any danger to decedent. Rex Ogle's testimony, that the car "crossed the center line", we believe was sufficient for the jury to find that it did so. If the jury believed that appellant's vehicle crossed the center line while approaching the decedent's vehicle, it could believe that it occurred close enough that decedent reasonably thought that a dangerous situation existed which required her to slow her vehicle. The action taken indicates that she believed a potentially dangerous situation existed. It is a reasonable inference that her observation of the movement of appellant's automobile caused her to brake and slow her vehicle. See McColgin v. Morgan, 592 S.W.2d 263, 268 (Mo.App.1979). The jury could find that the decedent slowed her automobile because appellant's vehicle was across the center line and as a result of this slowing, her vehicle was struck by the Myers' vehicle. That the appearance of danger might not have ripened into an accident except for her actions does not prevent plaintiffs' recovery as the jury could have found that the decedent could reasonably have concluded that there might be a collision unless she took action to avoid it. Id. 592 S.W.2d at 268-269. See also Hall v. Rager, 357 S.W.2d 83, 86-87 (Mo.1962). We believe a submissible case was made that defendant Webb's vehicle was on the wrong side of the road. Point one is denied.

Appellant's second point contends that the...