Sander v. Callahan

• Decision Date: 13 November 1961
• Docket Number: No. 48614,No. 1,48614,1
• Parties: Homer G. SANDER, (Plaintiff) Respondent, v. Ralph Earl CALLAHAN and Hazel I. Lock, (Defendants) Appellants
• Court: Missouri Supreme Court

Page 691

351 S.W.2d 691

Homer G. SANDER, (Plaintiff) Respondent, v. Ralph Earl CALLAHAN and Hazel I. Lock, (Defendants) Appellants.

No. 48614.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1961.

Correnti & Godfrey, Michael F. Godfrey, St. Louis, for defendant-appellant.

Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for respondent.

HYDE, Judge.

Action for $15,400 for personal injuries and property damage sustained in a collision with car owned by defendant Lock and driven by her son, defendant Callahan. Defendant Lock filed counterclaim for damage to her car. The court directed a verdict for defendant Lock on plaintiff's claim at the close of plaintiff's case; and at the close of the entire case the jury found for defendant Callahan on plaintiff's claim and for plaintiff on defendant Lock's counterclaim. Thereafter, the court sustained plaintiff's motion for new trial against defendant Callahan and overruled defendant Lock's motion for a new trial on her counterclaim. Defendant Lock appealed from the judgment against her on her counterclaim but has dismissed her appeal. Defendant Callahan appealed from the order granting plaintiff a new trial against him and that is the only matter now before us. Therefore, we will hereinafter refer to defendant Callahan as defendant.

Defendant contends that plaintiff was negligent as a matter of law; therefore we consider the evidence most favorably to plaintiff and state the facts on that basis. The collision occurred on a clear morning in May, with pavement dry, about 7:30 A.M. Plaintiff was driving north, down hill, on the inside right lane (next to center line) of Lemay Ferry Road, Highway 61, a four-lane highway. At that time traffic was heavy on the northbound lanes but light on the southbound lanes. The highway speed limit was 50 miles per hour. Plaintiff intended to turn left on Green Park Road about one block north of the top of the hill. There was a blinker light, blinking yellow for highway traffic, suspended on cables over the pavement at Green Park Road which went to the west but ended at Highway 61 and did not continue east. South of the top of the hill there was another heavily traveled road coming in from the east. Traffic intending to continue west had to go north on Lemay Ferry Road and turn left at Green Park Road. The bottom of this hill was about a block north of Green Park Road; then to the north Lemay Ferry Road went up another hill at the top of which was a curve beginning about four blocks north of the top of the south hill and about three blocks north of Green Park Road. At that time in the morning there were always cars at the Green Park Road intersection to make a left turn.

As plaintiff driving his Ford approached Green Park Road, there were two cars and a truck ahead of him in the same lane. The driver of the truck gave a hand signal for a left turn and plaintiff also had his hand out for a left turn. The speed of the truck and plaintiff's speed from the top of the hill to Green Park Road was 'not faster than twenty-five miles an hour.' Plaintiff saw cars approaching from the north, the two closest being at a street one block north of Green Park Road (the low spot in the highway between the two hills). These two cars were in the outside lane and two more were about a block north of the two closer cars and still others about three and a half blocks away at the top of the north hill. (He could make no estimate of their speed.) At the top of the south hill, plaintiff's car was 'a car and a half or two car lengths' directly behind the truck; but as it reached Green Park Road the truck slowed to about 20 miles per hour so that he was then 'about a car length behind it.' Plaintiff said there was at least one car behind him to make a left turn and one car in front of the truck, turned left; that his 'vision was obstructed a little by the truck' so that he could not say just where the approaching cars were at that time. Plaintiff did not remember whether the truck stopped before turning but said he did not stop. However, plaintiff said that when the truck turned 'there was not any traffic close for him'; that 'as soon as he crossed the center line and made a left turn I also, being close behind him, followed him, made a left turn to follow him'; and that 'I tried to maintain the same distance and watch him so I didn't run into the back end of the truck.' He further stated: 'I had crossed the center lane; I was in the outside lane and the Ford was ready to enter Green Park Road. * * * I heard tires screaming, I looked to my right and there was this car coming at me. * * * At an angle, crossing from the inside lane into the outside lane. * * * He was far enough back that I could see the whole car and it looked to me as though his front bumper was just dragging on the cement--on the road.' No horn was sounded. Plaintiff was made unconscious and did not remember the impact. On cross-examination, plaintiff testified: 'Q. At no time before this impact occurred did you ever see the automobile driven by Ralph Callahan, isn't that correct? A. This specific car, No, I didn't see it. Q. You never did see that car before the accident occurred? A. It could have been a blue one or anything. I didn't see it.' (Defendant's car was red.)

Plaintiff's witness, Robert Faust, driving south saw the collision. He said defendant's car passed him near the top of the north hill, right after the curve, going 70 miles per hour, when he was going down hill at 50 miles per hour about 300 yards north of Green Park Road; and near the bottom of the hill defendant also passed a truck 60 or 70 yards in front of Faust. (Defendant admitted passing two cars but said he passed at 50 miles per hour.) Faust said that a few seconds after defendant passed him, a Ford convertible, about six car lengths behind defendant's car, passed him at the same speed. (It could have been inferred that these two cars were racing.) Faust said northbound traffic was heavy but southbound was fairly light; and that cars were lined up to make a left turn on Green Park Road, 'there were some turning and some still coming' and 'several passing on through (northbound) on the outside lane.' (Defendant's own testimony also verified plaintiff's statement that at least two cars made the left turn ahead of him.) Faust said defendant's car and the Ford had slowed to about 50 miles per hour when they got within 50 feet of the intersection; and that he 'slowed down quite a bit because it looked like something was going to happen.' He said defendant's car started 'changing lanes there like if he was going to pull to the outside lane there' and was still 'close to 45 or 50 miles an hour' starting through the intersection (defendant said 35 to 40 miles per hour) where 'there were several cars wanting to make a lefthand turn.' He said he believed the truck ahead of plaintiff stopped, then 'made a lefthand turn, swinging into Green Park Road, and the Oldsmobile (defendant's car) was starting to cut across the lanes.' He thought defendant's car 'was going to hit the truck, but the truck managed to make it through'; but that plaintiff 'started to follow the truck and started to cut a little bit early across the street to follow the truck * * * sort of a sweeping turn,' and was struck near the front. He said plaintiff's car was going about 10 miles per hour when he first saw it turning but accelerated to about 20 miles per hour. The Ford convertible following defendant's car got through and went on south.

Defendant argues that plaintiff's own testimony shows that he had seen approaching southbound cars and made the left turn without knowing where they were with relation to the intersection; that he had seen cars twice as far from the intersection as he was and knew they had not passed; that he blindly followed the truck ahead of him when his view was partially obstructed without looking for approaching cars; that he violated Sec. 304.021 RSMo 1959, V.A.M.S., by failing to yield the right of way to defendant's car approaching so close to the intersection as to constitute an immediate hazard; and that plaintiff's failure to see defendant's car so plainly visible shows failure to exercise the highest degree of care, citing Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540; Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626; Breshears v. Myers, Mo.Sup., 266 S.W.2d 638; Adkins v. Boss, Mo.Sup., 290 S.W.2d 139; Roux v. Pettus, Mo.App., 293 S.W.2d 144; James v. Berry, Mo.App., 301 S.W.2d 530; Douglas v. Whitledge Mo.App., 302 S.W.2d 294; and Major v. Davenport, Mo.App., 306 S.W.2d 626.

Plaintiff's own testimony is somewhat contradictory, vague and indefinite as to what the situation actually was. However, considered in connection...