Paydon v. Globus
| Decision Date | 09 November 1953 |
| Docket Number | No. 43747,43747 |
| Citation | 262 S.W.2d 601 |
| Parties | PAYDON v. GLOBUS. |
| Court | Missouri Supreme Court |
Walther, Hecker, Walther & Barnard, Harold F. Hecker and George W. Cloyd, St. Louis, for appellant.
Inman, Dyer, Gray & Dreher, Charles E. Gray, St. Louis, for respondent. Byron A. Roche, St. Louis, of counsel.
This court ordered the transfer of his case from the St. Louis Court of Appeals for a review of its opinion and decision which reversed the judgment of the trial court. That court's opinion is reported at 255 S.W.2d 61. After a careful study of the record, we have concluded that the Court of Appeals' opinion correctly states the facts and we will adopt that part of the opinion without quotation marks.
This is an action growing out of an automobile collision which occurred near noon on March 13, 1949, at a point on U. S. Highway 40 about three miles west of Jonesburg in Montgomery County, Missouri, where the highway runs through an underpass beneath the tracks of the Wabash Railroad Company which cross the highway on a trestle from southeast to northwest.
The trestle, in length, is but barely more than the width of the highway, and is supported at either end by heavy concrete abutments which stand at the edge of the pavement which is approximately 20 feet in width.
The general direction of Highway 40 is east and west, but at the point in question, in order to accommodate itself to the angle of the underpass, the highway curves and goes beneath the trestle in the form of the letter S. In other words, an automobile approaching the underpass from either direction rounds a curve to the left, goes downgrade beneath the trestle and then upgrade and on a curve to the right, where the highway straightens out to either east or west depending upon the direction in which the automobile is proceeding. The south lane of the pavement is of course for eastbound traffic, and the north lane for westbound traffic. On both sides of the underpass the highway runs beneath banks of earth which rise gradually from the edge of the pavement to the level of the surrounding terrain.
The plaintiff is Olive Paydon, the widow of Emery L. Paydon, who was driving the automobile in which she was riding at the time the accident occurred. Paydon died some ten days after the accident as the result of the injuries he had received. The Paydon car was eastbound, and approached the underpass at a speed of about 40 miles an hour. The defendant, Meyer Globus, was westbound, and went under the trestle at a speed which, according to plaintiff's theory of the case, was 30 miles an hour. With defendant was his wife, who was killed in the accident, as well as his two sons, who fortunately escaped with minor injuries.
There had been a light snowfall during the preceding night, but by the time of the accident the highway was dry except for melting snow along the edge of the pavement. At a point some distance west of the underpass the snow on the bank along the south side of the pavement had melted and drained over across the eastbound lane, causing a wet spot to be formed on the pavement about 6 feet square. As the Paydon car passed over this spot it went into a skid in a general curve to the left, which eventually took it across and into the westbound lane, 186 feet west of the underpass, where it came to rest with its front end up against the bank to the north of the road. This position was 'almost' at a right angle to the westbound lane, which it completely blocked to westbound traffic. In other words, when the Paydon car came to a stop it was entirely clear of its own eastbound lane, and completely over across the westbound lane, with the front 3 feet extending out beyond the edge of the pavement to the north. Momentarily after coming to a stop it was struck squarely in the right side by defendant's automobile, with the unfortunate consequences already revealed.
Plaintiff brought her action in two counts, the first for damages of $15,000 for the wrongful death of her husband, and the second for damages of $40,000 for personal injuries she herself sustained.
The charge of negligence under which both counts were submitted was identical, that is, that while the Paydon automobile was skidding down the highway out of control, both plaintiff and her husband came into a position of imminent peril of being struck by defendant's automobile, of which fact defendant was or should have been aware in time thereafter, with the means and appliances, at hand, and with safety to himself and the other occupants of his automobile, to have stopped his automobile short of a collision.
A verdict was returned in favor of defendant and against plaintiff on count one of the petition, the count for damages for the husband's wrongful death, but in favor of plaintiff and against defendant for the sum of $6,600 under count two, the count for damages for plaintiff's own personal injuries.
Plaintiff moved for a new trial on count one of her petition, but this being denied, she accepted the result and took no appeal. Defendant moved for a new trial and for judgment on count two of the petition, and this being denied, he took his appeal for the limited purpose of assailing the result on count two.
The appellant contends that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence in the case. The evidence is very indefinite regarding the relative position and movement of the two automobiles just prior to the collision. Respondent did not remember anything after the Paydon car started on the curve leading down into the underpass. She had no eyewitnesses. She relied primarily upon the physical facts as testified to by the sheriff of Montgomery County and a member of the state highway patrol. These two witnesses made an investigation shortly after the collision.
Both of these witnesses testified that the Paydon car was blocking the westbound lane of the highway, in fact, about 3 feet of this car extended north of the north side of the highway. The front end of the Globus car was against the right door of the Paydon car. The right side of the Globus car was off of the north side of the pavement....
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