Pender v. Foeste
| Decision Date | 09 November 1959 |
| Docket Number | No. 1,No. 47250,47250,1 |
| Parties | Walter PENDER and Fay M. Pender, Respondents, v. Kenneth E. FOESTE, Appellant |
| Court | Missouri Supreme Court |
Limbaugh & Limbaugh, Joseph J. Russell, Cape Girardeau, for appellant.
Strom & Strom, Elmer A. Strom, Stephen E. Strom, Cape Girardeau, for respondents.
COIL, Commissioner.
In their action against Kenneth Foeste and William Jones, Walter Pender and his wife Fay each claimed damages for alleged personal injuries and Walter also sought to recover medical, hospital, and other expenses incurred, and damages for the loss of services and companionship of his wife, and for injury to his truck. Foeste counterclaimed and sought $20,000 for alleged injuries to his person and property. The trial court directed a verdict for William Jones. A jury awarded Walter $4,000, Fay $6,000, and found against Foeste on his counterclaim. Foeste has appealed from the judgment entered on the verdicts awarding Walter and Fay damages. We shall sometimes refer to respondents Walter and Fay Pender as plaintiffs and to appellant Foeste as defendant.
Defendant contends that Walter Pender was guilty of contributory negligence as a matter of law. We state the evidence from a standpoint favorable to plaintiffs. On November 2, 1957, about three o'clock in the afternoon of a clear dry day, plaintiffs (Walter driving and Fay his frontseat passenger) were proceeding north on highway V (Bend Road) in Walter's truck. Highway V was a concrete road 20 feet wide with a 9-foot shoulder on the west. From a point on the road at the place where a driveway extends west, the highway descends gradually to the north and curves to the right. When plaintiffs reached a point about 15 feet south of the south edge of the driveway (about 1 1/2 miles morth of Cape Girardeau) which led to the trailer in which they lived, Walter drove his truck so that its left side was adjacent to the center of the highway, slowed to 10 miles per hour, and looked north and saw that no traffic was approaching. At that point he could see a vehicle if it was within the 265 feet immediately north of a point even with the center of the driveway. Walter turned left at 10 miles per hour by angling across the west side of the highway to the middle of the drive and swinging left into the drive. When the front of his truck had reached a place in the driveway 21 feet west of the west edge of the pavement and the rear of the truck was 3 or 4 feet west of the west edge, defendant drove the front of his automobile against the right door of plaintiffs' truck, knocked it 20 feet in the air and to a place 30 feet south of the impact point where it came to rest 20 feet west of the west edge of the slab on its left side facing north, with the front of defendant's car against the truck and facing west.
Defendant had approached from the north around the curve and toward plaintiffs' truck at a speed of 75 miles per hour. The speed limit on that highway under maximum favorable conditions was 65 miles per hour. There were skid marks made by defendant's tires which ended at a point about the middle of the driveway and extended back northeastwardly onto and on the highway for a total distance of 150 feet. The skid marks left the pavement at the point where the curve ended (at its south end) and the highway continued south (i. e., the skid marks were a continuation of the curve). There was no other traffic in the west lane at any time except plaintiffs' truck and defendant's automobile during the time of the occurrence in question, save and except the automobile operated by former defendant William Jones, who was driving a short distance behind defendant Foeste.
Defendant's contention that Walter Pender was contributorily negligent as a matter of law is based upon the premise that Walter was bound by the testimony of his former codefendant, William Jones, who was called as a plaintiffs' witness. Jones testified that Foeste's approaching automobile was visible to Pender prior to and at the time he began his left turn. It is abundantly clear, however, that Walter was not bound by the testimony of Jones. Plaintiffs adduced other evidence from which the jury reasonably could have found the fact as to visibility contrary to that testimony. Plaintiffs both testified that at the time Walter began his left turn, they looked and no traffic was approaching from the north. Defendant says, however, that Jones' testimony that the car was visible when plaintiffs began their left turn is the only testimony supported by the physical facts involved and that Walter's own testimony as to the distance one could see northwardly from a point 15 feet south of the drive demonstrates that defendant's car was visible at the time Walter began to turn left. It is true that Walter estimated that he could see northwardly more than 300 feet from the place he began his turn. The highway patrolman who investigated the scene of the accident and made specific observations as to distances, estimated that one could see northwardly on the highway from the point where plaintiffs began their turn for a distance of 265 feet. Pender was not bound by his exact estimate as to distance and was entitled to the benefit of the patrolman's estimate. Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 27 [3, 4]. Pender testified that he made the turn at 10 miles per hour. He traveled about 18 feet diagonally across the west side of the highway and 21 feet west from the highway, or a total of 39 feet to the collision point. At ten miles per hour it took about 2.66 seconds to travel that distance. At the time plaintiffs began the turn, defendant would have been about 2.66 seconds away traveling at 75 miles per hour and thus about 292 feet north of the collision point when plaintiffs began their left turn.
Inasmuch as it appears that there was evidence from which a jury reasonably could have found that no visible traffic was approaching when Walter began to turn left, and inasmuch as there was no dispute about the fact that the collision occurred when plaintiff's truck had completely crossed the highway and was in the driveway, it is clear that the trial court did not err in refusing to declare as a matter of law that Walter Pender was negligent or that his negligence, if any, was a proximate cause of the collision. The question of a plaintiff's contributory negligence is always for the jury 'unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury.' Kickham v. Carter, Mo., 314 S.W.2d 902, 908.
Defendant's answer averred that Walter was contributorily negligent but did not so charge as to Fay. At the end of plaintiffs' evidence, defendant asked leave to amend his answer by inserting an allegation of Fay's contributory negligence. The court denied the request and defendant says the trial court thereby erred.
Courts should be liberal in permitting amendments to pleadings, Section 509.490 RSMo 1949, V.A.M.S., but whether a particular amendment 'should be permitted is primarily within the sound judicial discretion of the trial judge, whose action will not be disturbed where * * * there is no showing that such discretion has been palpably and obviously abused.' Stewart v. Stewart, Mo.App., 277 S.W.2d 322, 326.
In any event, the question whether Walter Pender was contributorily negligent in failing to keep a proper lookout was submitted and the jury found that he was not proximately negligent. The contributory negligence sought to be charged by amendment against Fay, the passenger, was her failure to keep a proper lookout and to warn. It seems apparent, under the evidence in this case, that the jury's finding against defendant on the issue of Walter's contributory negligence was tantamount to a finding against any contention defendant sought to make that Fay was contributorily negligent. Consequently, no prejudice could have resulted to defendant on account of the trial court's refusal to permit the amendment.
Defendant contends the trial court erred in giving plaintiffs' verdict-directing instructions 4 and 6. Those instructions submitted disjunctively defendant's primary negligence in driving at a speed which endangered the lives, limbs, and property of others; in driving at a speed in excess of 65 miles per hour; in failing to keep his automobile under control so as to guide, slacken, or stop in time to avoid a collision; in failing to keep a proper lookout. Defendant says the instruction failed to hypothesize sufficient facts as to speed, erroneously told the jury that a speed in excess of 65 miles per hour was negligent as a matter of law, and that there was no substantial evidence either that defendant failed to keep a proper lookout or, if so, that it contributed to cause the collision.
The instructions, in so far as here pertinent, were the same. They hypothesized that at the time in question Walter Pender, with his wife as a passenger, was driving north on the right side of highway V in his truck, that when they reached a certain point described in the instruction Pender intended to and did turn left and at that time the highway to the north was clear of approaching traffic, that at that time defendant was operating a motor vehicle southwardly on the highway from around a curve, and that he was then driving and drove 'at a rate of speed which endangered the property or the lives and limbs of other persons, * * * and * * * [he] thereby failed to exercise the highest degree of care in the operation of his automobile, and that as a direct and proximate result thereof' the collision occurred and injuries were caused as a direct result, etc. (Bracketed insert ours.)
Defendant argues that sufficient facts were...
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