Probst v. Seyer

Decision Date08 January 1962
Docket NumberNo. 1,No. 48578,48578,1
Citation91 A.L.R.2d 1252,353 S.W.2d 798
PartiesRosia Lelia PROBST, By Pearl Probst, her Next Friend, Appellant, v. Eugene L. SEYER and Berline Matthews, Doing Business as Matthews Mill, Respondents
CourtMissouri Supreme Court

George A. Murray, St. Louis, for appellant.

Finch, Finch & Knehans, Jack O. Knehans, Cape Girardeau, for respondent Seyer.

Riddle, Baker & O'Herin, Veryl L. Riddle, Charles H. Baker, Edward F. O'Herin, Malden, for respondent Berline Matthews.

HOLLINGSWORTH, Judge.

On April 12, 1957, in Cape Girardeau County, plaintiff, Rosia Lelia Probst, the minor daughter of Pearl Probst, was injured when an automobile driven southward by her father, in which plaintiff was a passenger, came into head-on collision with a northbound automobile driven by defendant Eugene L. Seyer, as the Probst automobile was engaged in passing a southbound motor truck operated by an alleged servant of defendant Berline Matthews. In this action plaintiff, by her father as next friend, sought to recover damages in the sum of $25,000 from defendants for the injuries resulting from that collision. Trial of the case resulted in the return of a court-directed verdict in favor of both defendants at the close of plaintiff's evidence. Plaintiff has appealed from the judgment rendered in accordance with the verdict. Her contention is that the evidence introduced by her would support a jury finding: (1) that as the Probst car was passing the Matthews truck, the driver of the truck negligently varied its speed in violation of certain statutory rules of the road, thereby making it impossible for the driver of the Probst car to return it to its lane in the rear of the truck or to pass in front of the truck in time to avoid the oncoming Seyer car; and (2) that under the circumstances shown Seyer (a) negligently drove his oncoming car at an excessive speed and (b) negligently failed to slacken its speed.

The facts not in issue may be stated narratively. In order, however, to interpret the oral testimony, much of it must be stated in the first person verbiage of the two witnesses testifying in behalf of plaintiff.

Plaintiff is one of eight children, some of whom on the date of the collision were attending the School for the Blind in St. Louis. Mr. and Mrs. Probst and four of their children, plaintiff, James, Frieda and LeRoy, were enroute to their home from the School for the Blind in Mr. Probst's two-seated 1949 Chevrolet passenger car driven by Mr. Probst. As they rode south on Highway No. 61, a north-south, twolane, concrete-paved highway, they came to the rear of defendant Matthews' south- bound trailer-tractor truck, which they followed for some 15 miles.

Mr. Probst testified: 'I figure I had been right close to it for 15 miles. I stayed in a safe distance in case there would be somebody come around me; around 10 feet, I believe. I guess I was going around 30. My car and brakes were in good shape. I believe it was around 7:00, dusk, dark; I had my lights on; I believe the truck had its lights on. I had tried four or five times to pass but somebody was a-coming or a no-passing zone. There was a little grade and a small curve ahead of us, right close to us, pretty close and then near 700 yards down the line was a big curve. There is a dip, low place, about a block away where I couldn't see, but the big curve (700 yards away) ahead I could see plain. We was just getting ready to go down a hill. When I got even, my radiator with the tractor part of it, his radiator, this Mr. Seyer come around a curve 700 yards down the line and he was driving at such a high speed, by the truck picking up speed I seen I wasn't going to make it so I just slowed down speed and thought I'd get back in my own lane and some reason or other he slowed down, the truck slowed down, and of course I couldn't get back in my own lane then and I hit--my right front wheel hit the truck dual, his left dual. And it just kind of slapped a little bit and of course, I seen I couldn't get in my own lane and I just pulled off to the left hand shoulder, clear off, practically off the road on the left side and I wasn't going three miles an hour when Mr. Seyer hit me. It was around 400 yards down there where my car struck the truck. I pulled right across the road and got off on the other side of the road, practically drove plumb off. In fact, I believe I was off it. Of course, after he hit me why I was around six inches on the pavement. No other cars had tried to pass. I figure Mr. Seyer was going 65 to 70. My right fender hit his right fender. He tried awful hard to keep from hitting me by putting on his brakes. The pavement is 18 feet wide. When I started around the truck, it was traveling around 35 miles an hour, just started picking up speed there and just topped the hill. I just barely touched the truck, just kinda jarred him a little; I didn't lose control. I imagine Seyer hit me at a rate of 25 miles an hour, I imagine something like it. Seyer might have gotten off the shoulder about a foot, something like that. His right wheel was what come off. I was off the road first.

On cross-examination by counsel for defendant Seyer, Mr. Probst testified: My eyesight is not too good without glasses, I can see plenty good to drive. Plaintiff has had defective eyesight since birth. Frieda's vision is the same. My wife's vision is very poor, she's practically blind. I had a driver's license at the time of the wreck. They took them away from me after the accident. I have one now. After I told the state patrolman practically the same thing I have told the jury, I pleaded guilty to careless and imprudent driving; I didn't have no money to hire a lawyer. It was 700 yards down to the big curve. The dip was about a city block from where I tried to pass. I couldn't see into the dip. I don't remember whether I sounded my horn when I tried to pass. I just wouldn't know what speed the truck was going. I was going around 35. I don't remember whether the truck was going 22 miles an hour. When I started to pass the truck, he picked up speed because he was going up an incline. By the time I got even with him he was picking up speed. I was pulling out as we come up to the crest of the hill.

On cross-examination by counsel for defendant Matthews, Mr. Probst testified: The Matthews truck was going something like 22 miles an hour as it went over the crest of the hill. The truck stayed on its side of the road and was on down the hill when I collided with the Seyer car. There was a time and space I couldn't see. I couldn't have seen the Seyer car when it was in that dip if there'd of been light. But I could have seen its lights if it had been in the dip. I got even with the truck radiator when I saw Seyer's car lights come around the big curve. When the radiator of my car was even with the radiator of the tractor, I couldn't see how close the Seyer car was but he was driving at a high speed.

'Q. Are you telling this jury and this court you could estimate this Oldsmobile's speed 700 yards away at night time? A. Well, he was coming awful fast. He was coming too fast for me to get in there.'

I didn't have room to get in my own lane. I figured other cars behind the truck was awful close to me. I just couldn't see how close they was on me. I don't know whether the truck driver put on his brakes--he just slowed up speed, I imagine. I don't know whether I ever blew my horn or blinked my lights. I don't think I ever applied my brakes, I just showed down. I don't have any idea how fast I was traveling. I have no idea how long it takes a car to cover a quarter of a mile going 65 miles an hour.

In reply to questions propounded by the court, Mr. Probst testified, in substance: I don't have any idea how far my car traveled from the time I was even with the truck and saw the Seyer car 700 yards away until my car collided with the Seyer car.

LeRoy Probst, on direct examination, testified in behalf of plaintiff: I am a preacher, aged 19 years. I was riding in the front seat with my father when my sister was hurt. I was coming from the School for the Blind, where I was then a student. My Dad, going 30 miles an hour, started to pass the truck. We started off the hill and then down the hill about 700 yards there was a big curve. When we started to pass the truck, it seemed to me that he kind of slowed down. The front end of our car got even with the front end of the truck. We ran along the side of the truck two, maybe three minutes. Dad couldn't get around it. As we got even with it, we seen the [Seyer] car lights. Dad slowed and tried to get into his lane. My best judgment is that the Seyer car was going 75 or 80 miles an hour. Dad slowed, the truck slowed, our car slapped the back dual wheel of the truck, Dad swerved and went over on the left hand shoulder. I believe he was actually all the way off the pavement. When the front of our car struck the left rear dual wheel of the truck, the Seyer car was 400 yards away. All of the cars had their lights burning.

On cross examination by counsel for defendant Seyer, LeRoy Probst testified: I have weak eyes and attended the School for the Blind for two years. I could accurately judge the speed of the Seyer car as it came around the curve with its lights on, a distance of 700 yards. I do not and never did drive a car but I road in many of them with my father and others. The [Seyer] car was going 75 or 80 miles an hour. I doubt if it could have been coming only 70, it could have been going 85 to 90. We drove alongside the truck two or three minutes. We drove alongside the truck about a minute when we first saw the Seyer car, then we drove alongside the truck about maybe a minute after we saw the Seyer car. I can't say for sure how fast Dad was driving, maybe 25 miles. I was worried about the car coming toward us, I wasn't worried about our car,...

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