Reed v. Shelly

• Citation: 378 S.W.2d 291
• Decision Date: 07 April 1964
• Docket Number: No. 8227,8227
• Parties: Gladys Laverne REED, Plaintiff-Respondent, v. Alec Richard SHELLY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 291

378 S.W.2d 291

Gladys Laverne REED, Plaintiff-Respondent, v. Alec Richard SHELLY, Defendant-Appellant.

No. 8227.

Springfield Court of Appeals, Missouri.

April 7, 1964.

Modified on Court's Own Motion, Motion for Rehearing or for

Transfer to Supreme Court Denied May 12, 1964.

Harold D. Jones, Bock & Jones, New Madrid, James F. Ford, Ford, Ford & Crow, Kennett, for defendant-appellant.

William H. Billings, Flake L. McHaney, McHaney, Billings & Welman, Kennett, for plaintiff-respondent.

HOGAN, Judge.

This action was brought by the plaintiff to recover damages for personal injuries sustained in an automobile collision. A jury found for the plaintiff and assessed her damages in the sum of $8,000. The defendant has appealed.

The collision occurred on Missouri Highway No. 84 about a mile and a half west of Hayti, Missouri, on July 15, 1959, at about 9:30 P.M. At the place in question, Highway 84 runs east and west and is a two-lane blacktop road, 24 feet wide, marked with a center line. Photographs of the scene received in evidence indicate that the highway is straight and level in that vicinity. On the south side of the highway, either at or very near the point of impact, the defendant's driveway intersects the highway on the south. Beyond this driveway, to the west, there is a ditch about four feet deep on the south side of the road. At the time of the accident, it was fair and dark, and the road was dry.

The defendant, at the time of the accident, was driving west on Highway 84, 'carrying [his daughter] home' from choir practice. Although the evidence is in sharp conflict as to the position of the defendant's vehicle relative to the center line, it is apparent that he stopped about even with the east edge of the driveway, 'fixing to turn in.' The plaintiff's vehicle, being driven by her husband and in which she was riding as a passenger, was also approaching from the east on the same (north) side of the road. The collision occurred when the plaintiff's driver attempted to pass the defendant on the left, or south, side of the highway. As a result of the collision, the plaintiff's car went into the ditch on the south side, traveled a considerable distance, and struck another driveway on the same side of the road. The plaintiff was thrown against the dashboard and sustained severe injuries.

The plaintiff, who was about 33 years old when she was injured, was on her way to visit members of her husband's family at Kennett, Missouri, a short distance from the place in question. She remembered practically nothing about the collision itself. She testified that she remembered leaving the road, but she had no recollection of the movements of either vehicle just before they collided, as she had 'put [her] head back and was dozing,' and remembered only 'coming to * * * way down in the [front] seat, slumped over.'

The plaintiff's husband, who was driving her vehicle on the occasion in question, was her principal witness to the facts of the accident. Mr. Reed was driving west on Highway 84, traveling at a moderate rate of speed, when he saw the Shelly vehicle some distance ahead (although the precise distance is not clear) with the 'right light' apparently blinking. Reed then diminished his speed slightly and continued to approach the Shelly car, which, according to Reed, 'swung right' so that the Shelly automobile 'looked like he swung all the way off [the highway]' to the right. Reed was then 150 to 175 feet to the rear of Shelly. Reed then turned into the south lane, increased his speed to about 35 to 45 miles per hour, and started to pass the defendant on the left. Reed admittedly gave no signal of his intention to pass at any time and, after he began the passing maneuver, lost sight of the defendant completely until he had come within 'about twelve feet' of the rear of the Shelly vehicle. According to Reed's testimony, the defendant then began bearing to the left (south) into the passing lane, 'and when I [Reed] seen him coming at me I swerved to the left, and he [defendant] kept coming, and I'd say the collision occurred from about three to four feet over in the passing lane, and I went off into the ditch.' Reed was emphatic in his testimony that he saw no oncoming traffic at any time.

The defendant's testimony was sharply at variance with Reed's in several particulars. According to Mr. Shelly, he drove west until his car was about even with the east edge of the driveway, and stopped completely, preparing to turn left into the driveway. Mr. Shelly had, as he recalled, turned his 'left signal on' about 300 yards east of the driveway, and had come to a standstill with his car completely on the right side of the road. Approaching from the west was a trailer truck, some 250 to 350 feet to the west, going approximately 40 miles per hour. Mr. Shelly had seen Reed in his rear view mirror, but he was 'pretty far back' 'apparently a quarter of a mile back.' According to Shelly--at least as we understand his testimony--Reed attempted to pass from the rear almost at the same time the approaching truck was passing, 'so he [Reed] kind of wedged between me and the truck, I don't think he hit the truck, but he just tipped me a little bit, he didn't hit me hard.' Mr. Shelly denied that he had ever turned to the right before commencing his left turn, and vigorously denied that he had moved any portion of his vehicle into the south (eastbound) lane before the collision; it was Shelly's testimony that he had not begun the left turn because he 'wasn't going in [the driveway] because I could see him [Reed] back there, I could see that car in back of me, I didn't make no effort to go in. * * *' The defendant's testimony was generally corroborated by his daughter, who had been a passenger in his vehicle at the time.

In rebuttal, the plaintiff introduced the evidence of a highway patrolman who testified that he had found dirt 'apparently from the impact' on the south side of the highway, one to two feet across the center line, and she also introduced evidence of a statement made earlier by the defendant in which Shelly said that he had turned left, or had started to do so, in order to allow Reed to continue in the north lane, when the collision occurred. Other evidence will be noted as necessary in the course of the opinion.

Numerous assignments of error have been briefed and developed in argument here by the defendant. For the sake of a reasonably clear and succinct opinion, we are going to consider some of his contentions together. One of the defendant's first points for consideration is his argument that Reed's testimony is so 'improbable and unbelievable' that it should not be considered as substantial evidence. This point need not detain us long. Our appellate courts have, on occasion, said that they can disregard testimony upon a material issue when the testimony is contrary to known physical laws or inherently impossible, but they have also qualified this statement by saying that they will do so only where the inherent impossibility is so obvious that reasonable minds could not differ. Steffen v. Ritter, Mo., 214 S.W.2d 28, 29[1, 2]; Davis v. F. M. Stamper Co., 347 Mo. 761, 770, 148 S.W.2d 765, 769[6-8]; Dempsey v. Horton, 337 Mo. 379, 384, 84 S.W.2d 621, 624[5, 6]. We believe there is no reason, apparent on this record, to reject Mr. Reed's testimony as being inherently impossible or incredible. Rather, it appears to us to be entirely consonant with known physical laws and common experience. The credibility of the plaintiff's evidence was simply a matter for the jury's consideration.

The defendant further attacks the submissibility of plaintiff's case by saying there is no substantial evidence that the defendant had notice of Reed's intention to pass in time to avoid the collision. It is argued that Shelly had a right to turn left until he had actual or constructive notice of Reed's impending attempt to pass, and that he had a right to assume that Reed would not pass without giving an audible signal. Therefore, the defendant maintains, since Reed began to pass when he was 150 feet to the rear of the Shelly vehicle, going about 35 miles per hour, and admittedly gave no warning of his approach, the defendant would have had only one or two seconds' notice of the impending collision, and this was insufficient to allow the defendant to take any action to avoid the casualty. It is not seriously contended that Mrs. Reed was guilty of contributory negligence as a matter of law, nor that there is any reason to impute the negligence of the driver to Mrs. Reed. The defendant's argument is simply that, in the circumstances, Shelly was not negligent.

We believe the defendant's argument applies the rules of the road to this situation in too positive and dogmatic a vein. These rules do not confer absolute rights, but rather impose reciprocal obligations which are qualified by the circumstances. ¹ Basically, it is the duty of the overtaking vehicle--in this case, Reed--to 'sound [his] horn before starting to pass,' Section 304.016, par. 1, subpar. 1, ² and Shelly, in making his left turn, was governed by Section 304.019, which provides in part that: 'No person shall * * * move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal * * *.' Even though in this case the driver who was overtaking and passing admitted that he gave no warning of his intention to pass, we consider it somewhat misleading to define the duties of a motorist in terms of what he may take for granted. If, in this case, Shelly was aware of Reed's presence on the highway behind him and had a duty to make some observation to the rear, we consider it inaccurate to say that he had a right to turn left. As we understand it, a motorist may not take for granted or assume that other vehicles will not be on the highway in violation of the rules of the road and thus...