Phillips v. Stockman
| Decision Date | 15 November 1961 |
| Docket Number | No. 7958,7958 |
| Citation | 351 S.W.2d 464 |
| Parties | Clarence PHILLIPS and Nellie Phillips, Plaintiffs-Respondents, v. Roy C. STOCKMAN and Fred A. Stockman, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Keyes, Bushman & Hearne, Jefferson City, for defendants-appellants.
Bond & Dominique, Jefferson City, for plaintiffs-respondents.
Harold Dean Phillips, then twelve years of age, suffered fatal injuries about 4:30 P.M. on November 8, 1958, when thrown from a 1956 Chevrolet sedan (hereinafter referred to as the Phillips automobile), then being driven by his mother, Mrs. Nellie Phillips, on Callaway County Route D approximately two miles west of Mokane, Missouri. In this jury-tried action for damages on account of Harold's death, his parents obtained a verdict for $12,000 against both defendants, who appeal from the judgment entered thereon.
At and near the point of accident, Route D ran in a general easterly-and-westerly direction and was practically level; and, for a distance of not less than one-half mile to the east (that being the direction from which all of the vehicles figuring in this tragedy approached the point of accident), the road also was straight. There was 'very little' shoulder between the north edge of the blacktop and the 'fair-sized ditch' on that side of the road. At the time of accident, the setting sun was low in the heavens and (as we shall detail) in varying degree bothered some westbound drivers on Route D. Since the time of the setting of the sun is within the storehouse of our judicial knowledge [Haley v. Edwards, Mo., 276 S.W.2d 153, 161(12); McGowan v. Wells, 324 Mo. 652, 658, 24 S.W.2d 633, 635(1); State v. Powell, Mo., 306 S.W.2d 531, 533(2), 66 A.L.R.2d 1141], we record that, on November 8, 1958, the sun set about 5:00 P.M. at the place of accident.
Defendants, Roy C. Stockman and Fred A. Stockman, are father and son, respectively. Roy, with son Fred, then twenty-six years old, and another son Francis (not a defendant herein), then twenty-one years old, had been working that day on Roy's farm near Steedman, a few miles east of the place of accident. Fred testified that, in the operation of that farm, he and his father, Roy, were partners. Between 4:00 and 4:15 P.M., Fred and his brother, Francis, left the farm in a 1951 Chevrolet two-ton truck with grain bed and stock rack (hereinafter referred to as the stalled truck) owned by Roy and, with Fred driving, proceeded west on Route D en route to the Stockman family home near Wardsville. As Fred and Francis neared the place of accident, the truck motor 'started to miss and, just like that, it quit.' Fred (in his words) 'pulled over to the (right-hand or north) side of the road as far as I could go' without driving into the ditch. Plaintiffs' witness, Andrew Taylor (the only other witness on this subject) agreed that the stalled truck was 'as far off the paved surface as it could be got without being put into the ditch,' and plaintiffs have not charged any violation of the statutory requirement that '(a)ll vehicles not in motion shall be placed with their right side as near the right-hand side of the highway as practicable.' V.A.M.S. Sec. 304.015(1). In the absence of any statement or estimate as to what portion of the stalled truck remained on the blacktop, we are informed only that the truck was 'partially' thereon.
When the truck stopped, Fred 'got out right away and raised the hood and just looked in' when the right front door of a westbound 1958 Ford sedan driven by Andrew Taylor sideswiped the outside left rear dual tire on the stalled truck. Taylor continued to the west on Route D for 'a block or two maybe,' turned around, drove back and 'stopped at the (stalled) truck.' As, upon trial, he related the conversation, Taylor inquired, 'what did I do to the truck'; and, when Fred and Francis 'said they didn't know' and made a reciprocal inquiry, 'what did it do to your car,' Taylor responded, 'I don't know; let's look.' So, Taylor and Fred 'drove down the road' to the east for a short distance (estimated by Taylor at 250 to 300 feet and by Fred at 150 to 200 feet), where Taylor stopped, still headed east, and he and Fred alighted to inspect the right side of the Taylor automobile. As they made this inspection, they were standing either in the ditch, two to three feet deep, on the south side of Route D (as Taylor testified) or alongside of that ditch (as Fred remembered it). In either event, they were on the south side of the stationary Taylor automobile. While engaged in inspection of that side of his automobile, Taylor told Fred that he (Taylor) had sideswiped the stalled truck because he had been blinded by the sun. As Taylor made that statement to Fred, two westbound vehicles were approaching from the east on Route D, towit, (1) the Phillips automobile driven by plaintiff Nellie, then about three hundred feet east of the Taylor automobile and traveling at a speed estimated by Nellie at thirty-five miles per hour and by Fred at forty to fifty miles per hour, and (2) a 1958 Chevrolet pickup (hereinafter referred to as the pickup) driven by defendant Roy, then about two hundred feet behind or east of the Phillips automobile (and thus about five hundred feet east of the Taylor automobile) and traveling about the same rate of speed as the Phillips automobile. Neither Taylor nor defendant Fred called or waved either to plaintiff Nellie or to defendant Roy.
To this stage of our factual review, we encounter no material or important dispute; but, as to what subsequently occurred, the record reflects two diametrically opposed, utterly irreconcilable versions. We first outline plaintiff Nellie's version. She was en route from Mokane to her farm home with three children riding in the Phillips automobile, i. e., Harold on the right side and Linda in the center of the front seat and Danny in the back seat. 'Most of the time' she wore eyeglasses (such as she was wearing at the time of trial) when she drove an automobile; but, before leaving Mokane on this occasion, she removed her eyeglasses, placed them in her dress pocket, and put on sunglasses, described as having a 'white frame with blue lenses.' She first saw the stalled truck 'quite a ways down the road.' At that time, she did not know whether it was moving; but, as she came 'closer,' she learned that 'it was stopped.' In the meantime, she also had become aware that the westbound pickup (driven by defendant Roy) was behind her. By the time she was one hundred feet from the stalled truck, the pickup traveling about fifty miles per hour was about one hundred feet behind her. As she 'approached' the stalled truck, she slackened the speed of the Phillips automobile (whether by application of brakes or simply by lifting her foot from the accelerator she did not say) so that, when it was twenty feet from the stalled truck, she was traveling about twenty miles per hour. There being no approaching eastbound traffic on Route D, she 'started to go around--I give myself plenty of room to go around this (stalled) truck--and something (the pickup) hit me in the rear of (my) car.' This initial impact, which 'seemed like' it was to 'the left bumper,' was 'pretty hard' or 'severe,' cast plaintiff Nellie 'up against the steering wheel,' and threw the Phillips automobile into the stalled truck. As a result of the second impact, i. e., the impact between the right side of the Phillips automobile and the left rear portion of the stalled truck, both Nellie and her son, Harold, were thrown from the automobile onto the blacktop roadway and the boy suffered the grievous injuries of which he died. Positively and repeatedly, plaintiff Nellie testified that the impact of the pickup upon the rear end of the Phillips automobile 'threw' or 'flung' it into the stalled truck, and that otherwise she would have cleared the stalled truck safely. Thus ran plaintiff Nellie's testimony.
The other evidentiary picture was developed by defendants Roy and Fred and plaintiffs' witness Taylor. Defendant Roy left his farm in the pickup some ten to fifteen minutes after his sons, Fred and Francis, and likewise proceeded west over Route D en route to the Stockman family home. After the Phillips automobile turned west from a north-and-south road onto Route D in front of the westbound pickup, plaintiff Nellie drove the Phillips automobile at a speed of forty to fifty miles per hour and Roy followed at practically the same rate of speed and at a distance of about one hundred fifty feet (as he estimated it) or two hundred feet (as Fred thought). The setting sun 'was glaring' in Roy's eyes and 'was bothering' him; and, with no sunglasses, 'I (Roy) was using (the Phillips automobile) as a blind against the sun'--'I was following this car and using it as a guide.' However, Roy insisted that he could 'clearly see' the Phillips automobile. Both defendants and plaintiffs' witness Taylor substantially agreed that, as the Phillips automobile approached the stalled truck, there was no perceptible slackening in its speed or discernible change in its course; that the initial impact was between the right side of the Phillips automobile and the left rear portion of the stalled truck; that, as a result of this initial impact, the stalled truck was knocked into the ditch and the rear end of the Phillips automobile swung clockwise to the south with that vehicle coming to rest crosswise of the blacktop roadway; that defendant Roy applied the brakes and skidded the wheels of the following pickup, leaving skidmarks (so Roy said) thirty-three feet in length; and that a second impact occurred when the front end of the pickup, then moving 'very slow' or 'about ten miles an hour,' ran into the right side of the Phillips automobile, then standing crosswise of the blacktop. ...
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