Robertson v. Grotheer

Decision Date10 March 1975
Docket NumberNo. 9353,9353
PartiesDarrell ROBERTSON et al., Plaintiffs-Respondents, v. Charles Herman GROTHEER and Willard Sikes, Defendants, and Earl Ray Carriger, Defendant-Appellant.
CourtMissouri Court of Appeals

John R. Martin, Joplin, for defendant-appellant.

Karl W. Blanchard, Blanchard, Van Fleet, Robertson & Dermott, Joplin, John Markham, Parsons, Kan., for plaintiffs-respondents.

HOGAN, Judge.

This is an action for the wrongful death of Ruth Robertson, wife of plaintiff Darrell Robertson and mother of minor plaintiffs Pamela, Tony and Drew Robertson. The casualty out of which the suit arose involved four vehicles; the plaintiffs joined three of the drivers as defendants. Verdict and judgment were in favor of the plaintiffs and against defendants Grotheer and Carriger in the sum of $50,000, but in favor of defendant Sikes. Defendant Carriger has appealed, alleging error in the giving of plaintiffs' verdict-directing instruction and in the refusal of several instructions tendered by him. Consisting as it does of 28 exhibits of varying degrees of relevance and the testimony of 22 witnesses examined and cross-examined at length concerning the details of three collisions involving four vehicles, four drivers and eight passengers, the record is predictably diffuse, repetitive and in some respects obscure. The appellant's printed 'summary' of the evidence comprises 58 pages of the 84-page brief he has filed here. Nevertheless space will be conserved and we shall confine ourselves to a summary of those facts and a consideration of those issues essential to an orderly disposition of the appeal. Bloomfield Reorg. School Dist. No. R--14 v. Stites, 336 S.W.2d 95, 97 (Mo.1960); Logsdon v. Duncan, 293 S.W.2d 944, 946(1) (Mo.1956).

The events with which we are concerned occurred on Highway 66 in Jasper County. The date was January 26, 1968, the time about 1:15 a.m. Highway 66 at the place here involved is a blacktop road running generally east and west. In is 24 feet wide with an eight-foot shoulder on the north side. North of the shoulder there is a ditch 18 inches deep and two feet wide. The north shoulder of the highway drops off abruptly into the ditch, and an embankment north of the ditch rises sharply to the north.

The series of accidents which ultimately resulted in Mrs. Robertson's death happened in and near the right-angled intersection of Highway 66 and another blacktop road referred to here as Central City Road. A westbound motorist approaching this intersection proceeds along a gradually descending slope and curve to the left; photographs and measurements received in evidence indicate that this downgrade commences, or the road 'drops off', as appellant put it, about 500 feet east of the intersection. Both sides of the right-of-way have been cleared. Ninetyfive feet west of the intersection, approximately 620 feet west of the 'drop off' there is a metal highway sign in the ditch north of the shoulder. Mrs. Robertson was standing near this sign when she was struck by the appellant's car.

Before the appellant came on the scene, so to speak, a Pontiac (Mattos) had struck a Falcon (Grotheer) as the Falcon was turning left onto Central City Road. Almost immediately the Pontiac was struck from the rear by a Ford (Sikes). As a result of the first collision the Falcon went in the ditch at the northwest corner of the intersection; the Pontiac was in the north lane of Highway 66 about 50 feet west of the intersection. The impact of the second collision moved the Pontiac another 150 feet to the west; the Ford stopped 100 feet west of the intersection, also in the north or westbound lane. The first collision caused no serious personal injuries, but Mrs. Sikes, a passenger in the Ford, sustained severe facial lacerations as a result of the second. After the second collision the occupants of the Pontiac got out of the car and moved about, some on the highway, others on the north shoulder. Mrs. Robertson stood near the highway sign attempting to help Mrs. Sikes.

When these first two collisions occurred the appellant was still some distance east of the intersection. The witnesses gave widely differing accounts of the events which occurred and the conditions which existed as the appellant's vehicle approached the intersection, but there was evidence indicating that before the appellant arrived several westbound automobiles and at least one eastbound automobile drove around the wrecked vehicles, that other automobiles stopped near the intersection, and that the people driving or riding in those automobiles got out and moved around on the highway. Some testimony was received indicating that the area around the Pontiac and the Ford was illuminated to some degree, but there was also evidence that the intersection and the stalled vehicles were wholly unlighted and indiscernible to an approaching motorist. Although the appellant testified that he saw the Ford stopped in the road as he came over the 'drop off' and quickly realized a dangerous situation lay ahead, he was unable to stop or pass to the left. Rather, the appellant turned his vehicle to the right, went in the ditch on the north side of Highway 66, ran into the highway sign, struck Mrs. Robertson and moved an additional 60 to 100 feet west before coming to a stop. Mrs. Robertson was dragged under the appellant's vehicle and died of the injuries she received.

Plaintiffs' case against the appellant was submitted on Instruction No. 7, which reads:

'Your verdict must be for plaintiffs and against defendant Carriger if you believe:

First, plaintiffs were the surviving spouse and minor children of Ruth Robertson, and

Second, defendant Carriger drove at a speed which made it impossible for him to stop within the range of his visibility, and

Third, defendant Carriger was thereby negligent, and

Fourth, such negligence either directly caused the death of Ruth Robertson or combined with the acts of defendant Grotheer and defendant Sikes to directly cause Ruth Robertson's death.'

In this court, the appellant assigns error to the giving of Instruction No. 7 on two grounds. His first complaint is that MAI No. 17.19, which is incorporated in Instruction No. 7, represents a change in the substantive law. He directs our attention to the committee's comment 1 on MAI No. 17.19, the rulings cited by the committee, 2 and concludes that in formulating MAI No. 17.19 the Committee on Jury Instructions adopted a rule of law which had been rejected by our courts, thus exceeding its powers. This argument overlooks the fact that it is the Supreme Court, not its Committee on Jury Instructions, which adopts and promulgates approved jury instructions. In legal effect, the appellant's point is that the Supreme Court exceeded its rule-making power in adopting MAI No. 17.19.

The point is not properly preserved for review. If it had been, we doubt this court's competence to decide it. We have no jurisdiction of appels which require construction of the constitution of this state, Mo.Const. Art. V, § 3, as amended 1970, V.A.M.S., and objections to approved jury instructions on the grounds asserted here have been treated as raising constitutional issues in the appellate jurisdictional sense. Stemme v. Siedhoff, 427 S.W.2d 461, 465 (Mo.1968). We need not pursue the jurisdictional question; even if no 'construction' of the constitution is required, no parallel or similar claim of error was ever presented to the trial court, and the point is not before us. Bower v. Hog Builders, Inc., 461 S.W.2d 784, 798 (Mo.1970); McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 301(17) (Mo.1968); Lands v. Boyster, 417 S.W.2d 942, 945(3) (Mo.1967).

The appellant further contends that Instruction No. 7 was not supported by the evidence; this point is in part tied to his vigorous assertion that the 'assured clear distance rule' is not the law in this state. We may note preliminarily that it is no part of the function of the Court of Appeals to decide whether or not a particular principle should be included in the MAI formulary; that decision rests wholly and exclusively with the Supreme Court by virtue of the provisions of Mo.Const. Art. V, § 5. MAI No. 17.19 was not included in the original MAI; it was adopted by order of the Supreme Court dated February 10, 1969, and if Missouri did not have the 'assured clear distance' or 'range of visibility' rule before that, it has it now. In point of fact, our courts have recognized the range of visibility rule in one form or another since 1916. In Solomon v. Duncan, 194 Mo.App. 517, 523, 185 S.W. 1141, 1143(2) (1916), the St. Louis Court of Appeals was of the opinion that violation of the range of visibility rule was negligence per se. The following year in Roper v. Greenspon, 192 S.W. 149, 157(7) (Mo.App.1917), a majority of the court was of the same opinion but there was a dissent and the appeal was certified to the Supreme Court. The Supreme Court, at least as we read its opinion, rejected the range of visibility rule as an absolute, fixed standard by which to measure negligence or contributory negligence, but gave no indication that it intended to reject the principle altogether. Roper v. Greenspon, 272 Mo. 288, 303--304, 198 S.W. 1107, 1111(7), 1918D, L.R.A. 126, 132 (banc 1917). 3 Modest independent research discloses at least 15 reported cases (there are others) in which our courts have clearly applied or considered the range of visibility rule in reaching their decision. 4 Our conclusion is, quite contrary to appellant's argument, that our courts have since 1917 recognized the range of visibility principle as a flexible standard of conduct by which negligence or contributory neglgience may be measured. As is true in almost all other jurisdictions, our courts have rejected the range of visibility rule to the extent that it fixes an absolute standard of conduct, and a number of exceptions have been recognized. Johnson v....

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