Robinson v. Gerber, 33499

• Decision Date: 26 May 1970
• Docket Number: No. 33499,33499
• Parties: Margaret O. ROBINSON, Plaintiff-Respondent, v. Donald Bryson GERBER and Mittelberg-Gerber, a Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 933

454 S.W.2d 933

Margaret O. ROBINSON, Plaintiff-Respondent, v. Donald Bryson GERBER and Mittelberg-Gerber, a Corporation,

Defendants-Appellants.

No. 33499.

St. Louis Court of Appeals, Missouri.

May 26, 1970.

Marvin G. Marshall, Burton H. Shostak, Henry Menghini, Evans & Dixon, St. Louis, for plaintiff-respondent.

Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.

CLEMENS, Commissioner.

Factually this case is about a head-on collision between a thunderbird automobile and a Buick ambulance. Legally the appeal presents a head-on conflict between two statutes, the right-half-of-the-road statute and the emergency-vehicle statute §§ 304.015 and 304.022. ¹

Plaintiff Margaret O. Robinson owned and was riding in the Thunderbird driven by her son, Raymond Owens. Defendant Donald Gerber drove the ambulance, owned by the corporate defendant. They collided head on at the crest of a hill in St. Louis County on U.S. Highway 66, Lindbergh Boulevard, while the ambulance was on its way to another collision nearby and was on the 'wrong side of the road' in plaintiff's lane of travel.

Plaintiff got a $7,500 verdict and judgment and defendants appeal. They claim 1) plaintiff was contributorily negligent as a matter of law, 2) error in refusing defendants' right-of-way instruction that omitted the prescribed clause limiting right-of-way to 'a very careful person', 3) error in giving plaintiff's verdict director submitting that defendants drove on the 'wrong side of the road' since that ignored defendants' status as a statutory emergency vehicle and 4) error in the trial judge's comment on the right-of-way instruction. These in turn.

Defendants contend plaintiff's driver was contributorily negligent as a matter of law by failing to yield the right-of-way to defendants' 'emergency vehicle', by failing to reduce speed, by failing to keep a careful lookout, and by failing to take corrective action after danger of collision became apparent.

Two principles of review guide us in determining plaintiff's contributory negligence as a matter of law. First, we must consider the evidence most favorable to plaintiff, must accord her the benefit of supporting inferences reasonably deducible from the evidence, and must disregard defendants' evidence except insofar as it aids the plaintiff, Burk v. Missouri Power & Light Company, Mo., 420 S.W.2d 274(5); and, we may not hold plaintiff contributorily negligent unless the favorable evidence is so strong against her there is no room for reasonable minds to differ. Justice v. East St. Louis City Lines, Inc., Mo., 375 S.W.2d 150(5); Baumle v. Smith, Mo., 420 S.W.2d 341(3). Second, we must judge the conduct of plaintiff and her driver in the light of circumstances reasonably apparent to them just before the collision, not upon circumstances which may have existed but were then unknown to them. Moore v. Middlewest Freightways, Inc., Mo., 266 S.W.2d 578(3).

On the issue of contributory negligence, the jury could have found: The cars collided about 7:00 o'clock on a cold, foggy morning when Lindbergh Boulevard was heavily traveled. Lindbergh has four lanes, two southbound and two northbound. The plaintiff's Thunderbird was going south in the inner southbound lane and the defendants' ambulance was coming north in that same lane. They met at the sharp crest of a hill that limited each driver's forward visibility. During the previous half hour a series of three collisions involving seven cars had occurred at the crest, all in the northbound lanes, blocking northbound traffic. ² At 7:00 o'clock three police officers were 'working' these collisions. Their cars were parked off the pavement near the crest, with lights flashing; they had set out flares, six on each side of the highway and six on each side of the crest. Behind the cars involved in the three previous collisions other halted northbound cars were lined up bumper-to-bumper for about 1700 feet down the hill south of the crest.

The police had radioed for an ambulance and defendant Gerber was responding to their 'Code 3--Expedite' call. Gerber had been driving north on Lindbergh in his own right-hand northbound lanes. As he came up behind the halted cars that blocked both northbound lanes, in order to reach the scene of the previous collisions he swung to his left into the inner southbound lane and drove up the hill at a decelerating speed of 40 to 25 miles per hour. Thus the ambulance was moving north in the same lane in which plaintiff was moving south on the other side of the crest.

Both drivers saw that traffic had stopped in the northbound lanes at the crest of the hill, but neither noticed the police cars' flashing lights or the flares staked out along the highway shoulders. As said, neither driver could see the other's car as each came uphill toward the crest. Evidence of the distance of mutual visibility is not precise. ³ Plaintiff's driver first saw the ambulance when it was four car lengths away, squarely in front of him in his own lane. Defendant driver did not see the Thunderbird until it was a hundred feet away. As plaintiff's car approached the crest at 30 to 40 miles an hour neither she nor her driver heard defendants' siren, nor did the driver of another car also moving south in the lane to plaintiff's right. When plaintiff's driver did see the ambulance he 'jammed on his brakes' but hit it almost immediately.

The plaintiff's duty to take evasive action arose only when it became actually or constructively apparent there was danger of collision with defendants' ambulance. Allan v. Read, Mo.App., 433 S.W.2d 58(2); Lemonds v. Holmes, 241 Mo.App. 463, 236 S.W.2d 56(4); Stakelback v. Neff, Mo.App., 13 S.W.2d 575(1). True, there were previous visible signs of some danger on the highway; the stalled traffic, the flashing lights on the police cars and the flares should have alerted plaintiff's driver. But we cannot accept defendants' argument that these signs gave plaintiff and her driver notice that the ambulance was then approaching unseen in their own lane of traffic.

Thus, according to the favorable evidence the two vehicles were approaching each other at a closing speed of 60 miles an hour, about 90 feet a second. The ambulance was visible to plaintiff's driver for less than 100 feet in distance and barely over one second in time. His stopping distance was more than 100 feet and there were other cars to his left and right. We cannot say as a matter of law that plaintiff was contributorily negligent in failing to yield the right-of-way to defendants' ambulance by taking evasive action. Facts necessarily differ in cases involving meeting vehicles and driving on the wrong side of the road, but our conclusion here finds support in the cases of Burks v. Leap, Mo., 413 S.W.2d 258; Nydegger v. Mason, Mo., 315 S.W.2d 816; and Moore v. Middlewest Freightways, Inc., supra.

We have not overlooked defendants further contentions that plaintiff was contributorily negligent as a matter of law by 'failing to slow down and failing to see what was plainly visible.' In this we must consider the element of proximate cause. In the landmark case of Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144(2) the court said: 'The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing, and efficient cause of the casualty, and absent which the casualty would not have happened.'

The evidence here does not compel a conclusion that plaintiff's speed of 30 to 40 miles an hour was excessive, or that a slower speed would have avoided the collision. Nor does the evidence show that plaintiff's driver could have seen the ambulance sooner than he did or that the collision would not have occurred had he kept a more careful lookout. At best, speed and lookout were issues for the jury. Compare Hutson v. Highley, Mo.App., 384 S.W.2d 278(1--8).

We conclude plaintiff was not guilty of contributory negligence as a matter of law, and move on to the challenged instructions.

Plaintiff pleaded that defendants had negligently driven their ambulance on the wrong side of the road; defendants answered affirmatively that plaintiff was contributorily negligent, particularly in failing to yield the right-of-way to their ambulance, an emergency vehicle. They now claim error in the refusal of their Instruction A, a modified MAI 14.01 defining an emergency vehicle's right-of-way in terms of § 304.022 and concluding: 'Such emergency vehicle, while so operating, may disregard regulations governing direction of movement.' The trial court refused Instruction A because it omitted the concluding bracketed clause of MAI 14.02 'provided a very careful person would so proceed under the same or similar circumstances.' After the court refused Instruction A the defendants offered and the court gave defendants' Instruction No. 8. This was the same as Instruction A but added the very-careful-person clause. This addition accorded with the proposition that right-of-way is a qualified privilege. See cases cited at MAI 14.01 and Notes on Use, MAIs 14.02--14.07.

The defendants' only objection to the very-careful-person clause is that those words placed on them a duty to use the highest degree of care. This, say the defendants, 'is contrary to the intent and purpose of V.A.M.S., § 304.022 which makes allowance for such operator of an emergency vehicle to disregard numerous regulations ordinarily associated with operations conforming to the highest degree of care.' We disagree. Several earlier cases give support, albeit weakly, to defendants' contention. But the contention has...