Powell v. Watson, 9718

Citation526 S.W.2d 318
Decision Date01 July 1975
Docket NumberNo. 9718,9718
PartiesRose Mary POWELL, a minor, by her next friend, William Powell, and William Powell, Plaintiffs-Appellants, v. Clarence Harold WATSON, Administrator of the Estate of Dennis Ray Watson, Deceased, Defendant-Respondent.
CourtCourt of Appeal of Missouri (US)

L. Thomas Elliston, Webb City, Myers, Webster & Perry, Webb City, for plaintiffs-appellants.

Malcolm L. Robertson, Ronald E. Mitchell, Joplin, for defendant-respondent; Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, of counsel.

Before BILLINGS, C.J., and STONE and TITUS, JJ.

TITUS, Judge.

Damage suit plaintiffs (successful with the jury) appeal from the court nisi's order granting defendant a new trial. 1 § 512.020 RSMo 1969, V.A.M.S. The court's reason for the order was that 'there was not sufficient evidence to justify a submission . . . on excessive speed and failure to keep a lookout,' the only charged negligent acts submitted by plaintiffs. Defendant is administrator of the estate of Dennis Ray Watson who expired as a result of the subject casualty. Plaintiff Rose Mary Powell was said to be the sole passenger in the station wagon allegedly driven by decedent; her father, plaintiff William Powell, sought to recover medical expenses incurred on behalf of his minor daughter. The 'dead man's statute' (§ 491.010 RSMo 1969) muted plaintiffs as testifying witnesses to the facts of the accident.

The casualty occurred west of Joplin on Christmas Eve 1971 near 7:20 p.m. at the intersection of east-west U.S. Highway 66 and north-south Black Cat Road. Both thoroughfares provide two traffic lanes paved with asphalt. The traveled portion of Black Cat Road is 25 feet wide; that of U.S. 66, described as a 'through highway', is 24 feet wide. Asphaltic paved berms, 8 feet in width, adjoin the north and south sides of U.S. 66. Traffic at the intersection is controlled by stationary stop signs located north and south of U.S. 66, intended for observance by traffic traveling on Black Cat Road. The south stop sign is situate 30 feet south of the south edge of the traveled portion of U.S. 66. Both roads are straight and level at the intersection which, in daylight, can be seen from the east and west on U.S. 66 for a distance of 1/2 to 3/4 mile. The accident happened on a moonless, starless night on dry pavement. No artificial lighting illuminated the intersection described as 'dark' save for lights of traveling vehicles. The lawful speed limits at the time were 65 m.p.h. on U.S. 66 and 60 m.p.h. on Black Cat Road. § 304.010, subd. 2(3), (4) RSMo 1969. At the north and south sides of the intersection the pavement on Black Cat Road is fan-shaped, thereby making the pavement on that roadway somewhat wider than its normal width of 25 feet as it abuts onto U.S. 66.

Generally, the consensus was that the station wagon, occupied by decedent and plaintiff Rose Mary Powell, was westbound on U.S. 66 when an unidentified pickup-camper type of vehicle was approaching the intersection from the south on Black Cat Road. The camper stopped at the south edge of U.S. 66 to permit an eastbound automobile occupied by the Phillips family safe passage through the intersection. Immediately after the Phillips vehicle cleared the intersection, the camper 'whipped out' or 'came out fast' into the intersection ahead of the station wagon, turned left or

west partly upon the north shoulder and north traffic lane of U.S. 66 blocking both. In an apparent effort to avoid colliding with the camper, the brakes of the station wagon were applied, recording tire marks which commenced on the traveled portion of U.S. 66 east of the intersection, continued westward onto the north shoulder of U.S. 66, across the north 'throat' of the intersection, and ended where the station wagon left the pavement before plummeting into 'a rather deep ditch' at the northwest corner of the intersection. The station wagon came to rest on its top headed east. The camper continued westward on U.S. 66 and neither it nor its driver was ever found

Before recasting the evidence particulars: as observed in Powell v. Watson, supra, 516 S.W.2d at 52, n. 1, although the trial court granted defendant's after-trial motion for a new trial, defendant is entitled now (as he has done) to raise the more basic issue that the court should have sustained his alternative motion for judgment in accordance with his motion for a directed verdict. We shall consider this first, for if the plaintiffs did not make a submissible case, the issue of the correctness vel non of the trial cort's grant of a new trial is immaterial. In measuring the submissibility of plaintiffs' case we review the evidence on the two alternative or disjunctive submissions of lookout and excessive speed upon which plaintiffs grounded their recovery (Begley v. Connor, 361 S.W.,2d 836, 839(4) (Mo.1962)), and consider the evidence in the light most favorable to plaintiffs, disregarding opposing evidence except where it aids plaintiffs' position. Kinder v. Pursley, 488 S.W.2d 937, 939, 940(2, 3) (Mo.App.1972).

Billy Gene Phillips, accompanied by his wife (Evelyn) and children, was driving 'roughly' 50 m.p.h. east on U.S. 66. He said the length of a car is 17 or 18 feet. One block west of the intersection Phillips observed the pickup-camper a block south traveling north on Black Cat Road at an unknown speed but at such a rate as to make him apprehensive it might not stop before entering the intersection. 2 As the speed of the Phillips car was slowed, so too was the speed of the camper before it came to a stop near the south edge of U.S. 66. Seeing that the camper was stopping, Phillips increased his speed to 35 or 45 m.p.h. and proceeded to and through the intersection while the camper waited. 'Q. . . ., did you ever observe that pickup again? A. Just in my rearview mirror. Q. How far had you traveled past the intersection when you next observed the pickup? A. Just as I got by. Q. Can you tell me in car lengths how far past you were? A. Maybe one or two, somewhere along there. Q. All right, at the time you glanced up in your rearview mirror and saw the pickup, did you observe anything else? A. I seen the pickup swerve over on the highway, over on the shoulder, and the taillights of a car. . . . Q. What were they doing at the time? A. They were going up. . . . I could conclude that he was hitting the ditch. Q. . . . how far west of the middle of the intersection of Black Cat and (U.S. 66) was the camper . . . when you saw the taillights of the car go up in the air? A. . . . I'd say around two, two to three car lengths. . . . Q. You saw the taillights go across (the intersection)? A. Just before they hit the ditch. . . . Q. And at that time the back end of the car and the pickup would have been about 2 or 3 car lengths from each other? A. I'd say somewhere along there. . . . Q.--during all that time the pickup was proceeding west? A. Well, he either stopped after he got on the shoulder or slowed down real slow. . . . Q. And half the pickup was on the shoulder? A. Yes, sir. Q. And half of it was still in the westbound lane? A. Yes, sir. . . . Q.

Well, if the automobile had been continuing in the westbound lane, straight through the intersection west, would it not have been on a collision course with the camper? A. Yes, sir, to my knowledge, I mean the way it looked to me it would have been. . . . Q. Do you recall the automobile that ended up in the ditch, actually going by you? A. No, sir.'

Evelyn Phillips, passenger in the automobile being driven east on U.S. 66 by her husband, estimated the car's speed at 50--60 m.p.h. as they were nearing the intersection. It was dark; the traffic was 'medium.' She saw the pickup-camper traveling north on Black Cat Road when it was onehalf to one block south of the intersection. The camper's speed was unknown to Mrs. Pillips except 'it didn't act like it was going to stop.' Her husband slowed the car's speed to 30--40 m.p.h. and 'when he seen (the camper) was going to stop' and stop, 'then he increased his speed up to 45, 50 miles per hour.' After the camper had stopped, 'you had to drive 50 or 60 feet before you got up to the intersection . . .? A. Yes. Q. And (the camper) waited all that while? A. Yes. . . . Q. Then he went safely through? A. Yes, he did. . . . Q. Now, after you passed through the intersection, you noticed the headlight of a westbound car . . .? A. Yes. Q. And that car went past you? A. Yes, it did. Q. And immediately after it passed you, your husband said some drunk pulled out in front of that car, didn't he? A. He said something like that. . . . Q. And you saw the headlights of the westbound car just before your husband made that statement? A. Yes, sir. Q. And at the time your husband made that statement . . . your car was perhaps four car lengths east of the intersection? A. Yes. Q. And you had observed the headlights of that car coming toward you, perhaps it was also four or five car lengths from the intersection? A. Yes. . . . Q. Now, when your husband made that statement, you turned around . . . and you looked? A. Yes. Q. But the accident had already happened, had it not? A. Yes. . . . Q. The car had come to a rest? A. Yes. Q. And was already up in the ditch? A. Yes. Q. And then it was after you saw the car stopped up in the ditch that you noticed this pickup camper? A. Yes.' The camper, according to Mrs. Phillips, was then 'along the shoulder of the road, headed west (and) if he was moving, he was moving slow . . . part of it blocking the shoulder and part of it blocking the west(bound) lane.' Whether any traffic was following the Phillips vehicle, Mrs. Phillips did not know.

Patricia Ann Neeley was a passenger in a Ford being driven east on U.S. 66 by her husband. The Ford was following 'probably' 3 or 4 car lengths behind another unidentified eastbound vehicle. Both vehicles were going at the same rate of speed...

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