Pitts v. Garner
| Decision Date | 09 February 1959 |
| Docket Number | 46600,No. 2,Nos. 46599,s. 46599,2 |
| Citation | 321 S.W.2d 509 |
| Parties | Dora PITTS, Respondent, v. Arthur H. GARNER, Administrator of the Estate of Elmer Cooper Deceased, and Vernon Kenneth Pogue, Jr., by his guardian ad litem, Martha Pogue, Appellants, and Charlsie Ann. PITTS, by her next friend, Dora Pitts, Respondent, v. Arthur H. GARNER, Administrator of the Estate of Elmer Cooper, deceased, and Vernon Kenneth Pogue, Jr., by his guardian ad litem, Martha Pogue, Appellants |
| Court | Missouri Supreme Court |
Bond, Bond & Buehner, Joplin, for appellant, Arthur H. Garner, Adm'r of Estate of Elmer Cooper, Dec'd.
John M. Rice, Neosho, A. L. Shortridge, Joplin, for appellant, Vernon Kenneth Pogue, Jr.
Roy Coyne, Max A. Patten, Joplin, for respondent.
STOCKARD, Commissioner.
Dora Pitts and her minor daughter, Charlsie Ann Pitts, by her next friend Dora Pitts, each filed suit for personal injuries against Arthur H. Garner, administrator of the estate of Elmer Cooper, deceased, and Vernon Kenneth Pogue, Jr., a minor, by his guardian ad litem, Martha Pogue. The two cases were consolidated for trial, and were tried before the Honorable Walter E. Bailey, Judge of the Circuit Court of Jasper County, all parties expressly waiving a jury. At the conclusion of the evidence the trial court took the two cases under advisement. The record then contains this entry: The special judge then entered judgment in favor of Dora Pitts and against both defendants in the amount of $11,457.50, and also entered judgment in favor of Charlsie Ann Pitts and against both defendants in the amount of $9,957.25. After motions for a new trial were timely filed and overruled defendants separately appealed. The cases have been consolidated for hearing in this court, although docketed separately, and there was only one transcript filed.
Vernon Pogue contends that he is not liable, and he also contends that if he is liable the amount of damages awarded to each plaintiff is excessive. Arthur H. Garner contends only that the amount of the damages in each case is 'grossly excessive.' However, on oral argument to this court counsel for Mr. Garner unequivocally stated that after taking the appeal and filing his brief in this court he has concluded that the amount of the damages awarded in each case is not excessive, and he urged affirmance of the judgments.
We note at this point that the selection by agreement of a special judge apparently was done pursuant to Section 478.053 RSMo 1949, V.A.M.S., which was repealed effective ninety days after May 31, 1957, following a recommendation to the Legislature by the executive council of the Judicial Conference of Missouri dated January 4, 1957, in which it was stated 'that Section 6 and 15 of Article V of the Constitution [V.A.M.S.], which sections are self-enforcing, pre-empt the entire field covered by said section of the statute [including Section 478.053], and therefore, by implication, repeal same.' The judgments were entered by the special judge before the effective date of the repeal of Section 478.053, and if the selection of a special judge by agreement was improper it was because Section 478.053 was unconstitutional, a matter we shall not raise on our own motion. We mention this so that this opinion may not be subject to an interpretation that this court is of the opinion that the procedure which was at one time authorized by Section 478.053 still exists.
The automobile collision giving rise to these causes of action occurred on Thanksgiving Day, November 24, 1955, about 10:30 p. m. at the intersection of U. S. Highway 71 and what is known as River Road about two miles south of the city of Joplin. Highway 71 is a heavily traveled interstate highway. At the place of the collision it is straight and runs generally north and south and is paved with concrete twenty-two feet in width. The intersection is close to the bottom of a long downward grade on Highway 71. River Road runs approximately east and west, but its intersection with Highway 71 is not exactly, but is almost, at right angles. It is of 'black-top' construction. On River Road, approximately sixty feet west of the west edge of the pavement of Highway 71, is a clearly visible stop sign directed to traffic approaching Highway 71. On the northwest corner of the intersection there is a high and steep rocky bluff. A portion of this bluff near the intersection has been cut away and leveled off, but the remaining part is several feet higher than the pavement of River Road.
Dora Pitts and her daughter Charlsie Ann were passengers in a 1951 Hudson automobile being driven eastward on River Road by Elmer Cooper. Dora Pitts was sitting on the right side of the front seat and Charlsie Ann was sitting between her mother and Mr. Cooper and she was asleep. Mr. Cooper intended to make a left turn onto Highway 71 and go to Joplin. Vernon Pogue was driving south on Highway 71. There were four people in his car. The collision occurred when Mr. Cooper drove his automobile onto Highway 71 directly into the path of the Pogue automobile. The front end of the Pogue automobile struck the left front fender and door of the Cooper automobile and the place of the collision was a little east of the middle of the intersection. Mr. Cooper was killed, and Dora Pitts and Charlsie Ann were seriously injured. The trial court entered a judgment in each suit against the administrator of Elmer Cooper, and there is no issue on these appeals as to the liability of Mr. Cooper's estate. The question for determination is whether under the facts and circumstances of this case Vernon Pogue was negligent in any respect charged in plaintiffs' petitions.
According to Dora Pitts, Mr. Cooper stopped on River Road before entering the intersection at a place where she could see 'both ways' on the highway, but she could not state precisely where the automobile was stopped in reference to the stop sign or the west edge of the pavement of Highway 71. She saw the headlights of an automobile 'way up the hill' on Highway 71 'far enough I knew he [Cooper] had time enough to get across to our lane.' This would indicate that the automobile was stopped fairly close to the highway because, as subsequently indicated, the bluff would prevent her from seeing 'way up the hill' if the automobile was as far back as the stop sign. Mrs. Pitts then turned to awaken Charlsie Ann to tell her that they were nearing home, and when she looked up again the Cooper car was moving, and she saw to the north on Highway 71 automobile headlights 'scary close' and she yelled 'wait.' She was 'sure' that the Cooper automobile 'was on the highway' when she saw the Pogue automobile, but she qualified her testimony by saying 'I wouldn't want to be positive about anything.' She also stated that Mr. Cooper 'must have stepped on the passing gear and it didn't time to take hold.'
Vernon Pogue testified that he and his three friends had been to a drive-in theater and were on the way home. After leaving the 'county line' he drove about 45 miles an hour but his rate increased to 50 or possibly 55 miles an hour when going down the incline toward the intersection with River Road. He was familiar with the intersection and knew that there was a stop sign on River Road for traffic coming from the west toward the highway. As he approached the intersection there were no automobiles approaching from the south. When he was in the neighborhood of 200 feet north of the intersection he looked to his right, that is, to the west and he saw no automobile approaching on River Road. At that position he couldn't see farther back on River Road than the stop sign because of the intervening bluff. He then looked to his left (the River Road crossed the highway and proceeded on eastward) and when he looked back to the right, he saw two headlights of an automobile about even with the stop sign 'coming fast enough I realized it couldn't stop.' He was then 70 or 75 feet, also estimated to be 50 to 60 feet, 'back up' the highway. He 'automatically slammed' on his brakes and swerved to the left, but he struck the Cooper automobile. He did not sound the horn on his automobile because he did not have time and he was trying to stop or swerve. His automobile was equipped with hydraulic brakes, and the brakes and automobile were in good working order.
Highway patrolman Coble testified that north and west of the point of collision there were 'no skid marks I could determine for sure,' and that skid marks southeast of the point of collision were the 'only skid marks I could swear came from those two vehicles.'
Lieutenant Hill of the Joplin police force testified as an expert. He testified concerning photographs which were taken from various locations on Highway 71 with the camera facing southwest toward River Road. It was his opinion that at a point approximately 192 feet north of the intersection on Highway 71 a person could see an object on River Road 105 feet from the intersection; at 140 feet north on Highway 71, one could see 129 feet west on River Road; at 96 feet north on Highway 71, one could see 195 feet west on River Road; and and at 50 feet north on Highway 71, one could see 225 feet west on River Road. However, his testimony that one could see a stated distance was based on daylight conditions, and the accident occurred at 10:30 p. m. late in the month of November. In addition, he admitted that he was basing...
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Jones v. Fritz, 7980
...absolute right to proceed through the intersection blindly and in utter disregard of motorists on the intersecting street [Pitts v. Garner, Mo., 321 S.W.2d 509, 518-519; Politte v. Miller, Mo.App., 301 S.W.2d 839, 842]; and, if and when the developing situation became such that plaintiff, i......
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