Scott v. Nash
| Decision Date | 22 March 1962 |
| Docket Number | No. 7985,7985 |
| Citation | 355 S.W.2d 626 |
| Parties | Hazel L. SCOTT, Plaintiff-Respondent, v. Jerry V. NASH and Geraidine Nash, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Breuer, Northern & Crow, Ralph M. Crow, Eugene E. Northern, Rolla, Dorman L. Steelman, Salem, for defendants-appellants.
Routh & Decker, Dewey Routh, Rolla, for plaintiff-respondent.
This is another near-head-on collision in which each party contends the other was on the wrong side of the road. The jury found against plaintiff Scott on her petition and in favor of defendant Geraldine Nash on her counterclaim. Thereafter the court sustained plaintiff's motion for new trial, and defendants have appealed.
The collision occurred south of Rolla on a straight (north and south) farm-to-market gravel road. At the scene of the collision the road, going south, climbs up out of a valley on a long, steep hill. Once over the crest of the hill, the grade, coming from the south, is not so steep. The collision point was on the steeper north slope, some 175-185 feet (this is only approximate) down north of the crest of the hill. Along parts of this road were 'tracks' or places approximately 18 inches wide made by the wheels of various cars. One of these tracks was on the east side of the road, one on the west, and one down the approximate center. There is evidence that, in or near the immediate vicinity of the collision and north of it, on the west side of the road the gravel had washed out, leaving rocks, and that the road there was rough. Both plaintiff and defendants appear to have been familiar with the road.
Mrs. Scott, the plaintiff, was driving her Dodge south, up the hill, at a speed she said was less than 25 mph (defendant Geraldine Nash said 30-35 mph). According to plaintiff's contention, she was on her own (west) side of the road. She says that the defendants' automobile came (from the south) over the crest of the hill at a speed from 50 to 60 mph, partly on her (west) side of the road, veering to its left; that defendants' car was 'sort of bounding,' leaping, or jumping; that she took her foot off the accelerator and was almost stopped; and that the Nash car continued its course until almost upon her, when it turned sharply farther to the left.
The Nash car was a Mercury. Defendants' version is that this Nash Mercury belonged to the defendant Geraldine but was being driven by her husband, Jerry. They were going (north) to work in Rolla. As they came over the crest of the hill, the Mercury had its right wheels in the extreme east (right-hand) track and its left wheel in or near the center track. The Mercury was traveling (by Jerry) 40-50 mph or (by Geraldine) 40-45 mph. Defendants say that plaintiff Scott was on their (or east) side of the road. Defendant Jerry said he waited, thinking plaintiff would move over, and as the cars neared he turned his wheels to the left (there was a ditch and culvert on the right). Defendant Geraldine said that as they came over the crest of the hill she screamed 'Jerry.' He swerved to the left and slammed on his brakes sufficiently to throw her against the windshield.
The cars collided somewhere near the center of the road. The majority of the debris was a little west of the center of the road. Damage to the cars indicated that the force of initial impact was taken by the right side of the front of both cars.
Plaintiff's instruction 1 hypothesized her own highest degree of care and Geraldine's ownership of and presence in the Mercury automobile, and submitted on negligence (in the conjunctive) of Jerry in (a) excessive speed, (b) failing to drive on the right half of the road, and (c) failing to have his automobile under control.
Plaintiff's instruction 2 made the same hypothesization and submitted on the fact that Jerry failed to drive on the right half and while so driving failed to swerve or turn the Mercury away from plaintiff's automobile and thus avoid collision.
Plaintiff's instruction 8 told the jury that if the Mercury was owned by defendant Geraldine and she was riding in and had control of the car, any negligence of her husband was imputable to her, and directed a verdict on the counterclaim.
Defendants submitted and had given verdict-directing instructions 4 and 5, which are as follows:
'The Court instructs the Jury that if you find and believe from the evidence that on the occasion mentioned in evidence Defendant Geraldine Nash was a passenger in the motor vehicle driven by Defendant Jerry Nash and that at all times herein mentioned she was exercising the highest degree of care for her own safety and the safety of others, if you find she was; and if you further find that the motor vehicle in which she was riding was being driven North and on the East side of the roadway mentioned in evidence; and if you further find and believe from the evidence that when the motor vehicle in which Defendant Geraldine Nash was riding had reached the crest of the hill mentioned in evidence, the driver of said motor vehicle immediately saw the motor vehicle driven by Plaintiff Hazel Scott approaching on the East side or Plaintiff Hazel Scott's left hand side of said roadway, if you find the facts so to be; and if you further find and believe from the evidence that it then reasonably appeared to Defendant Jerry Nash, who was on the proper side of the road, that there would be a collision unless he turned to the left, and acting upon such appearance, he swerved the car he was driving to the left, and in doing so did what a person exercising the highest degree of care would have done under similar circumstances, if you find all these facts so to be; and if you further find that said collision was directly caused by the failure of Plaintiff Hazel Scott in driving her motor vehicle to drive the same on her right hand side of the roadway, and that such failure on her part, if any, was negligence; and if you further find that the negligence of Plaintiff Hazel Scott, if you find she was negligent, directly and proximately caused Defendant Geraldine Nash's injury or injuries, if you find she was injured; and if you further find that Defendant Geraldine Nash was not negligent in any manner as set forth in other instruction(s) herein; then if you find all the facts so to be you will find the issues for Defendant Geraldine Nash on the counterclaim of Defendant Geraldine Nash and against Plaintiff Hazel Scott on Plaintiff's petition.
'The Court instructs the jury that it is the duty of the operator of a motor vehicle upon the highways of this state to drive upon the right half of the roadway. But the Jury are further instructed that an operator of a motor vehicle meeting an automobile coming from the opposite direction may be justified, under some circumstances, in turning out to the left instead of to the right to avoid a collision.
'And in this connection you are further instructed that if you find and believe from the evidence that at the time and place of the collision mentioned in the evidence Defendant Jerry Nash was operating his vehicle upon the right half of the roadway, if you so find, and immediately before the collision saw the automobile driven by Plaintiff Hazel Scott being operated on the same side or Plaintiff's left side of the roadway, if you so find, and if you further find and believe that it reasonably appeared to Defendant Jerry Nash that there would be a collision unless Defendant Jerry Nash turned to the left, and, acting upon such appearance, Defendant Jerry Nash turned the automobile he was driving in that direction, if you so find, and in doing so did what a person exercising the highest degree of care would have done under similar circumstances, then Defendant Jerry Nash did not violate the law of the road and was not guilty of negligence, and you will find the issues for Defendants.'
Since the trial court assigned no reasons in granting the new trial, the respondent has the procedural burden. Supreme Court Rule 83.06(b), V.A.M.R.; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627. And the sole grounds asserted in defense of the ruling appealed from are errors in the giving of the two foregoing instructions 4 and 5.
It will be noted that these are both verdict-directing instructions on plaintiff's petition and defendants' counterclaim; that instruction 4 hypothesizes highest degree of care of Geraldine as a passenger; and that instruction 5 hypothesizes the highest degree of care of Jerry after it appeared there would be a collision. It does not mention Geraldine.
Respondent contends that instruction 5 submits an emergency without hypothesizing any freedom from negligence which contributed to cause the emergency; that both instructions absolve appellants from all negligence if Jerry Nash turned to the left immediately before the collision, and thus ignored negligence of Jerry in driving at an excessive speed and in failing to keep defendants' automobile under control; that the two instructions conflict as to when the hazard arose; and that both instructions omitted a requirement for the finding of essential facts, either as to the affirmative defense to plaintiff's petition or as to defendants' counterclaim.
Appellants argue that instruction 4 submitted all the essential elements necessary for a recovery by Geraldine, and if plaintiff deemed it inadequate she should have offered a clarifying instruction; that instruction 5 was simply a converse of plaintiff's instructions 1 and 2; that since plaintiff submitted in the conjunctive, defendants were entitled to converse any one of plaintiff's specifications and submit a verdict-directing instruction on that ground alone; that it was not necessary to hypothesize facts dealing with the creation of the emergency because 'it may reasonably be inferred' that defendants did not create it; that all the...
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...the doctrine is that the emergency shall not have been caused or contributed to by the one who asserts the emergency. * * *' Scott v. Nash, supra, 355 S.W.2d at 630. While we find no case which holds in direct, precise and unequivocal terms that a plaintiff is always entitled to a counter o......
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