Ritchie v. Burton, 7396
| Decision Date | 07 June 1956 |
| Docket Number | No. 7396,7396 |
| Citation | 292 S.W.2d 599 |
| Parties | Dorothy Evelyn RITCHIE, a minor, by her guardian, Newton J. Ritchie, Plaintiff-Respondent, v. Virgil BURTON, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Burden & Shortridge, Joplin, for defendant-appellant.
Karl Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for plaintiff-respondent.
Defendant's automobile, in which plaintiff was a guest, was confronted on a curve by an International pickup truck and attempted evasive action by going to the right. In so doing it went into the ditch, swerved a time or two and finally overturned. For resultant injuries the jury allowed plaintiff $7,500. A remittitur of $1,500 having been ordered and entered, motion for new trial was overruled and defendant has appealed.
Appellant's first assignment is aimed at the sufficiency of the evidence, and this, having been a jury-tried case, involves an examination of the evidence and reasonable inferences most favorable to the plaintiff. Prior to the events here concerned, defendant Virgil Burton, had been courting Alta May Ritchie for approximately a month. His campaign terminated happily, for by trial date they were married. Some of the courtship was accomplished via Chevrolet, for Virgil had been, on various occasions, teaching Alta to drive. According to her testimony she had had some driving experience before; and she had progressed considerably under Virgil's tutelage. He said she was a 'skillful' driver; but she was his wife when he so testified, and a jury, knowing that it is impolitic for any husband to refer to his wife's driving ability as anything less than skillful, might have accepted his appraisal with some mental reservations. It is not amiss to say, however, that defendant had, during a part of his service in the army, the task of teaching others to drive and operate military equipment, so it could be concluded that he was not only competent to teach but qualified to judge the progress of those less experienced. When we say that Alta was over sixteen years old, and thus legally qualified as to age, but did not have an operator's license, we think we have sufficiently covered the capacities of the parties.
The locale of the accident was a curve on Highway 37, which appears to have been a highway in the sense of an old 'county road' which had been blacktopped. The approach to the curve from the direction the Chevrolet was traveling is down a long and gradual grade. At the foot of the grade the road curves rather abruptly to the left (northerly). On the inside of the curve the ground is higher and covered with trees and rather thick brush. On the right somewhere near but south of the apex of the curve is a highway marker bearing the legend 'one-lane bridge.' This bridge, referred to in the evidence as White Oak bridge, is some 300 to 360 feet north of the marker. It is a narrow one-car span and sits considerably higher than the roadway, sufficiently so that vehicles approaching from opposite ends are not visible to each other. A rather steep fill or approach comes down off the south end of the bridge and shortly south of this approach (we having reversed our direction) the road begins its curve to the right. The bridge and its approach are aligned with the center of the road and an automobile coming off the approach is of necessity required to be in the center of the road. The roadway itself is blacktop 20 feet in width. The shoulder on the east or outer edge is negligible and the slope commences almost at the edge of the blacktop and goes off gradually into a fairly shallow ditch. The curve is flat, that is, unbanked, and there appears to be a slight crown in the road. The defendant, who was familiar with the place, and a disinterested witness, Watts (of him more hereafter), identify this as a dangerous curve. Defendant said he knew of other accidents which had occurred at the place. So much for the locale.
On a bright December Sunday morning Virgil went to the home of Alta's parents, who live on a gravel county highway leading off Highway 37, intending to take Alta to Sunday school. It was agreed that plaintiff, Dorothy, who was Alta's little sister (age nine), might accompany them, and accordingly they set off. A half-mile down the road defendant decided to let Alta drive, and she got under the wheel. As to the positions of the others in the car there is conflict, for Dorothy says that after the change she, Dorothy, was in the middle and Virgil was on the right; while Virgil says he was in the middle and Dorothy was on the right. Alta does not say. After coming to Highway 37 Alta turned to the right and drove for more than a quarter-mile downgrade in an approach to the curve which we have described. As she got to or upon the curve or curve entrance she was going (depending upon which estimate is accepted) somewhere around 20-40 miles per hour and had let up on the gas pedal. In rounding the curve she was confronted by the pickup truck coming squarely up the center of the road from the direction of the bridge. She pulled to the right as far as she felt she could, to the approximately edge of the blacktop, and asked Virgil to take over. This he did by crowding over on the seat to the left, taking the wheel in his hands and putting his foot on the brake. Virgil, according to his testimony, drove for about 20 feet further along the right edge of the pavement, then went into the ditch. A tire mark showed where the Chevrolet left the road and continued to where it came to rest 138 feet to the north. The Chevrolet concluded its run by turning over to its left onto the pavement and sliding along on its top. The pickup apparently did not give ground, did not stop, and continued serenely on its way; and while its driver appears to have been discovered by the highway patrolman, neither plaintiff nor defendant saw fit to call him as a witness. Both Alta and Dorothy say that they are unable to relate the events after the approach to the curve and the appearance of the pickup. On this occasion one Claude Evan Watts was visiting his brother-in-law, who lived on a hill immediately south and east of the curve. This home, like all proper Southern Missouri homesteads, included that useful structure perhaps not familiar to the present generation of city folk but which, if they do know it, is probably described by them as a rest room, whereas we who are more familiar with such things refer to this cabinet d'aisance as 'the back house.' But by whatever name it may be known, that is where Watts was headed when his preoccupations of the moment were interrupted by the squeal and scream of tires. He looked; the pickup was in the center of the road; the vehicles were 'close together' as they passed and he could not tell whether the automobile or truck was going faster. A cloud of dust swirled into the air. Through it he observed the automobile as it went up the ditch, swerving two or three times as it went. He saw it overturn and skitter along on its top; another accident had happened at White Oak bridge. And these are the facts as the jury had them.
Defendant, having dominance over the operation of the car, was approaching the curve, which he knew to be sharp, unbanked and dangerous. He knew the view was obstructed and foreshortened. He knew a vehicle coming off the bridge on the other side of the curve would for some distance necessarily be traveling in the center of the road. The highway marker was an additional warning. The speed of the automobile under his control is a matter of estimates ranging from 20 miles per hour upward. A patrolman testifying from his report, without objection, gave the speed of the Chevrolet at 40 miles per hour and the speed of the pickup at 20 miles per hour, although how he got this information is not shown. The scream of the tires as described by Watts and the distance the Chevrolet traveled prior to the time it came to rest, the fact it swerved from side to side in the course of its travel, even the resultant damage to the car ($1,200), all were factors which the jury could have considered in determining whether the speed of defendant's car was in excess of that which a person in the exercise of the highest degree of care would use. Whether a given miles per hour is excessive must be determined from the surrounding facts and circumstances. 1 Coupled with the question of speed was that of lack of proper control, which could apply both to the time immediately prior to the sighting of the pickup and the subsequent attempt to operate the car from an awkward position on the seat to the right of the wheel, also the applied method of operation in failing to press the brakes and in pulling still further to the right. Virgil said the truck was 75 feet away when he saw it. He estimated he could have stopped his car in 30 feet but did not apply the brake because he thought the truck would hit him. The truck was straddling what would have been the center line if there had been one, and even the remaining width of the road to the east of it was subject to a conclusion by the jury that defendant may have incorrectly calculated his open and available passing space and that he took to the ditch unnecessarily. Also there is the question of proper lookout. Defendant says that Alta, his alter ego, who was sitting to the left and nearer to the inside of the curve, saw the approaching pickup before he did. He said his delay in seeing was caused by the glare of the sun; but the jury may well have disbelieved his explanation. All these things, the speed, the question of proper lookout and proper control, were things to be considered in relation to each other (they were submitted in the conjunctive); for the failure or partial failure to exercise the proper care in respect to one necessarily increased the duty owed in respect to the others. We are of the opinion that the plaintiff made a submissible case and hold against appellant on...
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