Schaetty v. Kimberlin, 49740

• Decision Date: 13 January 1964
• Docket Number: No. 2,No. 49740,49740,2
• Parties: Emily SCHAETTY and Otto Schaetty, Appellants, v. Mickey Dale KIMBERLIN, Respondent
• Court: Missouri Supreme Court

Page 70

374 S.W.2d 70

Emily SCHAETTY and Otto Schaetty, Appellants, v. Mickey Dale KIMBERLIN, Respondent.

No. 49740.

Supreme Court of Missouri, Division No. 2.

Jan. 13, 1964.

Blackwell & Blackwell, James A. Blackwell, Hillsboro, for plaintiffs-appellants.

Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for defendant-respondent.

PRITCHARD, Commissioner.

Plaintiffs, husband and wife, jointly brought their actions against defendant for personal injuries arising out of a rear end collision which occurred on February 18, 1961, on U. S. Highway 61-67 at its intersection with Highway C (old highway 61) which leads to the U. S. Highway 61-67 in Jefferson County, Missouri. Plaintiffs' prayers for damages are respectively $7,500 and $17,500. From the judgment upon verdict against them, both plaintiffs prosecute this appeal.

U. S. Highway 61-67 is a modern, concrete surfaced, four-lane divided highway, running generally in a north-south direction, two lanes going northward twenty-four feet wide, and two lanes going southward, also twenty-four feet wide, these four lanes being separated by a dirt divider. Highway C also runs generally north and south and parallel to U. S. Highway 61-67, but near its point of intersection therewith, it makes a rather sharp turn to the east and leads up to the new highway. Upon highway C, on the south side just at the intersection is a stop sign. Farther over, on the divider between the north and south lanes, and on the south part of the intersection is a yield sign facing westerly. The concrete crossover of Highway C at this point is fifteen feet wide. To the south, U. S. Highway 61-67 ascends and then curves to the east, there being a crest of a hill in that direction approximately 300 to 500 feet in distance. To the north from the intersection, U. S. Highway 61-67 continues to descend in a gradual slope.

According to the version of Otto Schaetty of the facts and circumstances of the collision, he was driving his Ford Falcon Ranchero, his wife, Emily, sitting beside him, northwardly on Highway C at a speed of 35 to 40 miles per hour. As he neared the stop sign on the west side of U. S. Highway 61-67, he slowed and stopped to allow southbound traffic to clear the intersection, then proceeded across the southbound lanes to the crossover area and there again stopped. He then looked to the south for northbound traffic, saw none coming for a distance of 300 feet and he then proceeded north on U. S. Highway 61-67, and after proceeding approximately 150 feet north in the outside northbound lane, and while going approximately 25 miles per hour, the Ranchero was struck directly in the center of its back by defendant's vehicle, which had approached the intersection at between 50 and 55 miles per hour. The testimony of Emily, Otto's wife, substantially corroborated the foregoing, but she said that Otto came almost to a dead stop at the yield right of way signs where she looked south and did not see any other cars, and she said to Otto, 'OK, Shad, there's no machine coming,' and he pulled onto the right of the highway and started to go straight.

Defendant testified that before he got to the intersection he had passed a car and was in the process of going back to the right-hand lane. As he approached the intersection he was operating his car at a speed between 50 and 55 miles an hour. He noticed Otto's Ranchero coming down the hill at about 30 or 35 miles an hour. Defendant turned his attention back to the road, and just as he got to the intersection he noticed Otto just crossing the divider line, the crossover, at which Otto did not stop, and defendant applied his brakes, making rubber skid marks 70 feet long. Defendant lost traction and slid up to the other vehicle, colliding with it in the rear right side with the left front side of defendant's vehicle. Defendant's left front tire blew out and the left front dropped down immediately, causing scars on the concrete highway up to the point of contact. Defendant said the point of impact was a foot and a half to the left side of the painted center divided strip and at the north end of the concrete crossover. As Otto came through the yield sign without stopping he was going at least 20 miles an hour, and the rear of his Falcon slid around slightly as he turned north to his left.

J. K. Wondell testified by deposition (at the time of trial he was in the U. S. Army stationed at Fort Benning, Georgia) that he was employed as a patrolman with the Missouri State Highway Patrol on February 18, 1961, at which time he investigated the accident. He arrived there at 4:10 P.M. after the accident had happened at about 3:30 P.M. He found Otto's Ranchero pickup on the east shoulder of the highway headed north approximately 300 to 350 feet north of the crossover. The defendant's vehicle was approximately 150 feet north of the crossover, off the highway and down a slight embankment which was northeast of the intersection. He observed tire marks starting in the northbound lane close to the divider strip on the island, then going over to the outside lane, the lane closer to the east shoulder of the highway, and off the shoulder down the embankment to the 1957 Chevrolet (defendant's vehicle), the total distance of these tire marks was 180 feet. The first 70 feet of the tire marks led to scratch marks in the surface of the pavement (concrete had been gouged from the pavement leaving an impression) at the north end of the crossover, approximately about the center of the two lanes. From the scratch marks on the surface of the pavement, the tire marks led up to defendant's vehicle (which was about 75 feet down the embankment) for the additional distance of 110 feet.

For defendant, Mary Ann Kertz testified that she was going south on U. S. Highway 61-67 to Farmington, on the day of the automobile collision, and that she witnessed it. She was driving in the righthand lane of the two southbound lanes, and saw Mr. Schaetty's vehicle coming down the side road at a speed, when she first saw him, of about 40 miles per hour, then he seemed to make an effort to slow down to about 30. She said Otto did not stop at the stop sign or the yield sign, and as he got to the yield sign she saw him look to the south and accelerate his automobile at which time he slid on the loose gravel in the middle and his car swerved out in front of defendant's car. Mrs. Kertz saw the actual impact which was just a short way up from the intersection.

Plaintiffs urge as error the action of the trial court in giving on behalf of defendant three instructions numbered D-5, D-6 and D-7.

Plaintiffs submitted their cases upon the primary negligence of defendant in allowing his vehicle to collide with the rear end of their Falcon Ranchero.

Instruction D-5, directed toward Emily's case, submits as the sole cause of the occurrence the acts of Otto.

We do not set out any of these instructions in full, but mention is made only of those parts toward which plaintiffs' attack is levelled. Instruction D-5 requires the jury to find that there was a stop sign at the west side of U. S. Highway 61-67, that there was a 'yield right of way' sign facing drivers coming from the west on the crossover strip between the traffic lanes. The jury is required further to find that Otto drove his motor vehicle in which the plaintiff, Emily, was riding across the southbound lanes of said highway, the crossover strip, and into the northbound lanes of the highway at said intersection without stopping or yielding the right of way at a time when the automobile operated by defendant was approaching so closely as to constitute an immediate hazard. The instruction then leaves it to the jury to find that the failure to do said hypothesized acts was negligence which was the sole cause of Emily's injuries, and that the same was not due to any negligence of defendant as submitted in other instructions. Then upon a finding of all submitted items a verdict is directed...