See v. Kelly

• Decision Date: 01 October 1962
• Docket Number: No. 23507,23507
• Citation: 363 S.W.2d 213
• Parties: Cyrus SEE, Jur., Respondent, v. Loren KELLY, Appellant.
• Court: Missouri Court of Appeals

Page 213

363 S.W.2d 213

Cyrus SEE, Jur., Respondent, v. Loren KELLY, Appellant.

No. 23507.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1962.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 3, 1962.

Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for appellant.

Clifford Jarrett, Walter A. Raymond, Kansas City (Raymond, West & Cochran, Kansas City, of counsel), for respondent.

MAUGHMER, Commissioner.

This case arose out of two automobile collisions which involved three vehicles. Plaintiff Cyrus See, Jr., driver of one car, sought damages from the other two drivers for personal injuries which he allegedly sustained. The verdict and judgment was for plaintiff in the sum of $7500 against the defendant Loren Kelly, but for the defendant William Audsley. The only appeal is by Loren Kelly.

One of appellant's main contentions on appeal is that his motion for directed verdict should have been sustained because the only issue of negligence submitted was 'failure to keep a constant and careful lookout', and there was no evidence to authorize such submission. The rule for appellate determination of this point was stated in Daniels v. Smith, Mo., 323 S.W.2d 705, 706:

'In order to determine whether the court erred in ruling the motion presented at the close of all the evidence a review of the evidence favorable to plaintiff is required. We shall state the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences arising therefrom and disregard defendant's evidence unless it aids the plaintiff's case. Mincielli v. Sloan's Moving & Storage Co., Mo.Sup., 303 S.W.2d 17, 19; Wattels v. Marre, Mo.Sup., 303 S.W. 9, 10 .'

We shall therefore summarize the evidence from the viewpoint of plaintiff. The accident occurred at about 5:00 p. m., November 27, 1958, within the city limits of Liberty, Clay County, Missouri. The plaintiff Cyrus See, Jr., 32 years of age, resident of Kansas City, Missouri, and employed as a foreman by Benson Manufacturing Company, was driving his Mercury automobile from Richmond, Missouri, to his home in Kansas City. His wife was sitting in the front seat and his 14 year old daughter in the back seat. When they left Richmond the weather was cloudy but there was no precipitation. As they neared Excelsior Springs, snow began to fall. This snowfall increased in intensity as they reached the vicinity of the Flamingo Motel on Highway 69 near Kansas City. The highway at this place runs generally north and south and has two lanes of pavement each way with shoulders and a median strip in the center. At the time of the accident snow had accumulated and the highway was slippery. Plaintiff said he had been driving about 25 miles per hour, but had slowed somewhat; that his brakes and windshield wipers were functioning properly and he had his lights on. Plaintiff testified that as he reached a point near the Flamingo Motel he noticed 'three or four people out flagging'. He saw them 'about 300 feet away'. He slowed down, saw 'cars stalled across the highway' and pulled left off the pavement and stopped. They sat there--talked a little and he was about to get out when his daughter shouted: 'Oh, daddy, we're going to get hit'. He glanced in his mirror and saw headlights approaching from the rear and 'something hit me'. It was his testimony that his car was struck on the right rear by the green Chevrolet driven by the defendant Kelly. Plaintiff said the blow drove his car onto the highway, headed southeast, and that 'around a minute or something like that later', it was struck on the left rear quarter panel by a 1958 blue Chevrolet driven by the original codefendant William Audsley. Mrs. See and the daughter Judy gave substantially similar testimony.

Plaintiff called as a witness police officer John Kerr, who had arrived on the scene at 6:15 p. m. It was then 'snowing real hard and it was awfully slick'. Officer Kerr said he was told by defendant Kelly that Audsley's car hit Kelly's car and then Kelly's car hit plaintiff's vehicle. He also stated that Audsley told him the same thing. At the trial Audsley testified that he hit the plaintiff's car, but did not strike Kelly's, and denied that he had told Officer Kerr that he had hit the Kelly car. It was defendant Kelly's testimony that when he was two or three car lengths to the rear of plaintiff's Mercury, he was struck in the rear by Audsley and thereby propelled into plaintiff's automobile.

Appellant contends that plaintiff is bound by Officer Kerr's testimony and says that is Kelly was driven into See by Audsley, then there is no evidence authorizing either a finding or a submission that Kelly negligently failed to keep a lookout or that he negligently caused the collision and plaintiff's resultant injuries.

We note but do not rule upon the admissibility of Kerr's testimony as to (a) what defendant Kelly told him at the scene and (b) what he was there told by defendant Audsley. However, we do rule that plaintiff is not conclusively bound by such testimony and the jury might, if it chose (and it did so choose) accept the other version of what transpired; that is, that Kelly's car hit plaintiff, and that Audsley's car later also struck plaintiff's car. We agree with the following statement found in 32 C.J.S. Evidence Sec. 1040, p. 1106:

'Accordingly, a party calling a witness is not necessarily or absolutely bound by his testimony; he is not bound where the testimony is contradicted, either expressly or by inference, by other evidence or circumstances, as where the circumstances or the evidence of other witnesses would warrant the trier of facts in disregarding the testimony or drawing a contrary inference.'

See also, Giambelluca v. Missouri Pacific R. Co., Mo., 320 S.W.2d 457, 474, 475.

We believe that the evidence of plaintiff, his wife and his daughter and Mr. Audsley is amply sufficient to support a finding that Kelly's car struck plaintiff's car without having first been struck in the rear by Audsley. We hold that defendant's motion for a directed verdict was properly denied.

Appellant says there is no evidence that Kelly failed to keep a lookout, and therefore it was error to submit by Instruction #1 defendant's alleged 'failure to keep a constant and careful lookout'. Kelly says that he was watching and that he saw plaintiff's car. Kelly's trial defense seems to have been that he struck plaintiff because he was first hit by defendant Audsley. The jury refused to accept this version. Plaintiff testified that he saw the flagman and the cars involved in the other accident about 300 feet away. Whether or not a driver is actually alert and looking is usually not susceptible of ready affirmative proof but in a proper case it may be inferred from the attending surroundings and circumstances We believe the law was correctly declared in Rohmann v. City of Richmond Heights et al., Mo.App., 135 S.W.2d 378, 383:

'It is the duty of a motorist to keep a lookout on the highway in the direction the car is going. He is not only required to look but to look in such an observant manner as to enable him to see the conditions which a person in the exercise of due care and caution for his own safety and the safety of others would have seen under like or similar circumstances, and it is as much negligence to fail to see that which can be observed by due care as it is negligence not to look at all. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. Not to see what is plainly visible when there is a duty to look constitutes negligence. Alexander v. St. Louis-San Francisco R. Co., 327 Mo. 1012, 38 S.W.2d 1023; Woods v. Moore, Mo.App., 48 S.W.2d 202.'

Plaintiff was entitled in his instruction to hypothesize his own version of the evidence and his theory of defendant's liability providing it was actually based on the evidence and presented a sound theory as to liability. We rule the instruction to be good, sufficient and proper under the evidence. We have examined the cases submitted by appellant on this point and we are not persuaded differently. In Levin v. Caldwell et al., Mo., 285 S.W.2d 655, cited by appellant, which involved a lookout instruction in an intersection collision case, all the...