Seeley v. Hutchison
| Decision Date | 14 July 1958 |
| Docket Number | No. 46306,No. 2,46306,2 |
| Citation | 315 S.W.2d 821 |
| Parties | Laverta M. SEELEY, Respondent, v. Marion D. HUTCHISON, Appellant, Alexander Hall, Defendant |
| Court | Missouri Supreme Court |
Chapman & Chapman and Thomas W. Chapman, St. Louis, for appellant, Marion D. Hutchison.
Correnti & Godfrey, Michael F. Godfrey, St. Louis, for respondent.
BOHLING, Commissioner.
Laverta M. Seeley sued Alexander Hall and Marion D. Hutchison for $45,000 damages for personal injuries sustained in an automobile collision. The jury returned a verdict in favor of plaintiff and against defendant Hall for $6,000 and against plaintiff and in favor of defendant Hutchison. Plaintiff filed a motion for new trial on the whole case. Defendant Hall filed a motion for new trial on the issue of his liability alone. The court overruled defendant Hall's motion, sustained plaintiff's motion for error in giving defendant Hutchison's instruction No. 13, and entered its order that the verdict and judgment 'be set aside, vacated and for naught held'. The two defendants appealed. Defendant Hall dismissed his appeal subsequent to the filing of the transcript here and prior to submission of the case in this court. See 42 V.A.M.S. Supreme Court Rules, rule 1.17. Defendant Hutchison contends plaintiff failed to make a submissible case against him and that said instruction was not erroneous. (Unless otherwise indicated 'defendant' as used herein refers to defendant Hutchison.)
This three westbound in-line automobile collision occurred in St. Charles County about one-half mile west of the Daniel Boone Bridge over the Missouri River on Highway No. 40 about 11:15 a. m. Saturday, November 26, 1955. It was a clear day and the pavement was dry. Highway No. 40 is a two-lane 20 feet wide, with a center line, heavily traveled concrete highway. The shoulders are wide enough for automobiles to park. Testimony established the normal speed on the highway to be 60 m. p. h.
Proceeding west from the bridge Highway No. 40 has a small 'dip,' followed by a gradual incline to the crest of a hill. The highway is then downgrade to a drain, where the grade is much less, and then upgrade, with a curve, to the crest of the hill to the west. About .2 of a mile west of the bridge, and near the crest of the first hill, is a gravel road, referred to as road 1. About .2 of a mile west of road 1 is another road or wagon trail, referred to as road 2. The collision occurred at road 2, which is in a 'no passing' zone. Road 2 is a short distance west of the drain.
Mr. and Mrs. George Wright were taking plaintiff and her son to Vandalia, Missouri, plaintiff's home, following their visit with the Wrights in St. Louis over Thanksgiving. Defendant and Mrs. Hall accompanied them.
Defendant Hutchison and a lady were in his 1955 'Ford-Automatic.' Mr. Wright was driving his 1949 Hudson sedan. Mr. Hall was driving his 1952 Ford Ranch Wagon. For convenience we sometimes designate these automobiles as car 1 (the lead car), car 2 (the middle car), and car 3 (the rear car), respectively. All three men were experienced drivers. Plaintiff, next to Mr. Wright, and the youngest Wright boy were on the front seat of car 2, and other members of the Wright party were on the rear seat of car 2 or in car 3.
Defendant Hutchison testified he was trying to locate the Schroeder farm. He started into road 1, almost immediately realized it was not the Schroeder farm, returned to the highway and continued westwardly.
Mr. Wright, driving car 2, came over the crest of the hill at a speed estimated at 35 to 40 m. p. h. He saw car 1 about 150 feet ahead of him, traveling about 25 to 30 m. p. h. He took his foot off the gas pedal and that tended to check his speed. Car 1 kept slowing down and when Wright was something like 50 feet from car 1 it was turned all at once into road 2 without any signal. Just as the front wheels of car 1 got off the highway the brake light came on and it 'stopped right there.' Wright 'jammed on' his brakes and managed to stop just as the right front of the bumper of car 2 touched the right rear of car 1 very lightly. At that time both rear wheels of car 1 were still on the pavement. Car 1 then 'rolled on off the highway' onto road 2 and sotpped 8 or 10 feet from the pavement.
Meanwhile, defendant Hall was approaching in car 3. He was traveling about 60 m. p. h. as he came over the crest of the hill. He saw two cars ahead of him about half way or farther down the hill. He took his foot off the gas pedal but was not making a stop. The 'drag' of the motor tended to slacken his speed.' When he was at or a little past the drain he saw an eastbound car coming around the west crest of the hill and he applied his brakes lightly. He was then about 4 or 5 car lengths back of car 2, which was moving slower than he. Car 1 started turning into road 2. When he was a little more than a car length back of car 2 he saw its brake lights suddenly come on. Wright testified he did not have time to give any other signal. Hall applied his brakes hard and skidded his wheels. The testimony was that a hard application of the brakes tends to force the front end of a car down and the rear end up. In a second or two the front end of Hall's car, which was down, went under the rear of car 2, which had just stopped but 'hadn't settled still,' striking car 2 violently before Wright had taken his foot from the brake pedal, knocking it forward and injuring plaintiff. Car 3 left skidmarks 15 feet long. Hall estimated his speed at 25 to 30 m. p. h. when he forcibly applied his brakes. State Trooper Schacher, who arrived at the scene about ten minutes after the collision, estimated, from his observations and investigation, Hall's speed at approximately 40 m. p. h. when the brakes were applied.
Of defendant Hutchison's evidence. Road 1 was approximately 90 feet west of the crest of the first hill. The drain was approximately 550 feet west of road 1. Road 2 was approximately 186 feet west of the drain and about 12 feet wide.
Defendant Hutchison wanted to make arrangements at the Schroeder farm to go squirrel hunting. His speed down the hill was estimated at 20 to 30 m. p. h. He saw road 2 when he was near the drain, 'couldn't see what was up in there,' and slackened speed, he thought, to less than 20 m. p. h. when a little past the drain to turn onto the shoulder. He looked in his rear view mirror, could see 30 to 50 feet back of his car, and neither saw nor heard any approaching automobile. He gave the signal for his turn with his directional light and, without stopping, drove onto road 2 and, with the front of his car 'about 12, 15 or 18 feet' off the pavement, stopped because of an erosion at the side of road 2, but could have driven up road 2. He also stated the rear of his car was 6 to 8 feet off the pavement when he stopped. He then heard the crash of glass on the pavement, turned around, looked through the rear window, and saw car 2 and car 3 'jammed together' on the pavement. He got out of his car, and, among other things, saw the skidmarks made by car 3. Asked how much time elapsed after his car left the pavement before car i and car 3 collided, he answered: 'It seemed to be about, oh, oh, maybe ten seconds, fifteen or twenty seconds.' He testified that if he stated in his deposition that the elapsed time was two seconds or less he was mistaken and his testimony from the witness stand was correct.
Defendant claims plaintiff failed to make a submissible case against him and his motion for a directed verdict should have been sustained, citing Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 489, and Ford Motor Co. v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840, 845, 852, 164 A.L.R. 364, 370. A defendant's instruction does not prejudice a plaintiff who has no case. Graves v. Atchison, Texas & S. F. R. Co., 360 Mo. 167, 227 S.W.2d 660.
Under plaintiff's evidence Wright had not taken his foot off the brake pedal of car 2 and car 2 had not 'settled' from its violent stop brought on by Hutchison's stopping on the pavement when car 3 ran into the rear of car 2. A jury could find that in the attending circumstances a reasonable probability of some injury should have been anticipated by Hutchison. Hutchison's acts had not become passive but were still active and no break existed in the chain of events initiated by his starting to turn without warning and suddenly and unexpectedly stopping on the pavement ahead of car 2 and the consequences brought about by his said acts; i. e., car 3 running into the rear of car 2 a second or two thereafter and injuring plaintiff. A jury could find that absent Hutchison's acts the injury would not have occurred. Dickerson v. St. Louis Pub. Serv. Co., 365 Mo. 738, 286 S.W.2d 820, 824[3-5, 8-10] citing cases; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243, 249[11, 13]; Cox v. Wrinkle, Mo., 267 S.W.2d 648, 654; Floyd v. St. Louis Pub. Serv. Co., Mo., 280 S.W.2d 74, 78[8-10]; Bowman v. Moore, 237 Mo.App....
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