Sewell v. MFA Mut. Ins. Co.

• Decision Date: 02 April 1980
• Docket Number: 10810,Nos. 10809,s. 10809
• Citation: 597 S.W.2d 284
• Parties: Desiree J. SEWELL, Avery E. Sewell, and Anita Sewell, Plaintiffs-Respondents-Appellants, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellant-Respondent.
• Court: Missouri Court of Appeals

Page 284

597 S.W.2d 284

Desiree J. SEWELL, Avery E. Sewell, and Anita Sewell Plaintiffs-Respondents-Appellants, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellant-Respondent.

Nos. 10809, 10810.

Missouri Court of Appeals, Southern District, Division Four.

April 2, 1980.

John Z. Williams, Williams & Smallwood, Rolla, for defendant-appellant-respondent.

W. H. Thomas, Jr., Routh, Thomas, Birdsong & Hutton, Rolla, for plaintiffs-respondents-appellants.

FLANIGAN, Chief Judge.

A vehicle driven by plaintiff Desiree Sewell, 19, collided with a vehicle driven by Joe Hale, an uninsured motorist. As a result of the collision Desiree sustained serious personal injuries and her parents sustained a derivative loss. Defendant MFA Insurance Company insured the Sewell vehicle. This action was brought by Desiree and her parents under the uninsured motorist's provisions of the MFA policy. The jury awarded the three plaintiffs a total of $20,000. From the judgment entered on the verdict both sides appeal.

Hale himself was not a party to the action but the two verdict-directing instructions offered by the plaintiffs required the jury to find that Hale failed to keep a careful lookout, was thereby negligent, and as a direct result of such negligence the respective plaintiffs were damaged. The issue of Desiree's contributory negligence was submitted to the jury in defense instructions. The jury resolved that issue in favor of plaintiffs and defendant MFA does not claim that Desiree was guilty of contributory negligence as a matter of law.

On its appeal defendant MFA presents three points, the first of which is that the trial court erred in denying defendant's motion for a directed verdict at the close of plaintiffs' evidence, which was the only evidence in the case, for the reason that the evidence was insufficient, in three specified respects, to support the finding of the jury that the collision was caused by the negligence of Hale in failing to keep a careful lookout.

In Bunch v. McMillian, 568 S.W.2d 809, 811 (Mo.App.1978) this court set forth the general principles to be followed in determining whether the evidence is sufficient to support a "lookout" submission. Those principles apply here but they need not be restated.

The collision occurred at approximately 10 p. m., May 17, 1974, at the intersection of Highway 28 and Stringtown Road in Belle, Missouri. Stringtown Road runs generally east and west. As it approaches, intersects, and crosses Stringtown Road, Highway 28 runs generally northeast-southwest. Prior to the collision Hale was driving his 1967 Chevrolet two-door sedan northeastwardly on Highway 28 and Desiree was driving her 1962 Chevrolet four-door sedan westwardly on Stringtown Road.

Highway 28 is 22 feet wide and has two lanes. Stringtown Road is 21 feet wide and has two lanes. A stop sign, located northeast of the intersection, confronted Desiree as she proceeded west toward the intersection. The front of the Sewell car, when it was due south of the stop sign, was 41 feet 6 inches from the east edge of the pavement of Highway 28. Prior to and at the time of the impact the Sewell car was in the righthand, or westbound, lane of Stringtown Road and the Hale car was in the righthand, or northeastbound, lane of Highway 28.

The driver of a vehicle proceeding, as Hale was, northeastwardly on Highway 28 encounters a "dip," the bottom of which is approximately 350 feet from the center of Stringtown Road. Proceeding northeastwardly from the dip, the motorist is on an incline at least until he reaches a point approximately 20 feet from the edge of the intersection, at which point, the evidence may indicate, Highway 28 becomes level.

It is the position of defendant that the evidence adduced by plaintiffs was deficient in the following respects: (a) there was no evidence as to the position of the Sewell car prior to the time the Hale car was "at the crest of the incline," "right at the intersection," or "20 feet from the intersection"; (b) there was no evidence that the Sewell car was visible to Hale when the Hale car "was half way up the incline"; and (c) there was no evidence that, at the time the Sewell car became visible to him, Hale had sufficient time and distance thereafter to take effective action to avoid the collision. Review of defendant's first point is limited to determining the soundness of the three imperfections assigned.

At the time of the accident the weather was "good," the "moon was shining," and the area was well illuminated by street lights. Desiree, who was grievously injured in the accident, had no memory of it. Hale, called as a witness for plaintiffs, remembered very little of the incident. He said that his speed was 25 or 30 miles per hour as he approached the intersection and his headlights were on. He also said that his vehicle was in good operating condition. Hale admitted that he had consumed five or six bottles of beer earlier that day.

Faye White and her husband W. L. White were witnesses to the accident. Faye was driving her automobile, in which her husband was riding, northeastwardly on Highway 28, following the Hale car. The relative movements of the Hale car and the Sewell car are described in the testimony of Faye White and her husband. Although some variances exist in the estimates of speeds and distances contained in the testimony of those two witnesses, MFA does not contend that the variances are extreme enough to deprive their testimony of probative value.

Deficiency (a), claimed by defendant, is factually unsound. Although the testimony of Faye White was somewhat disjointed, she did say that she saw the Sewell car when she "started up the incline." At that time the Hale car was "half way up the incline" which would place the Hale car 175 feet from the center of Stringtown Road (or, if the "incline" be considered as ending "20 feet from the edge of the intersection," a somewhat greater distance from the center of Stringtown Road). At the same time the Sewell car "was at the stop sign and was moving forward into Highway 28."

Deficiency (b), claimed by defendant, is factually unsound. Faye White saw the Sewell car when Faye "started up the incline." At that time the Sewell car "was at the stop sign and was moving forward into Highway 28." The testimony of Trooper Mattison, the investigating officer, was that the view of a driver, proceeding northeastwardly on highway 28 up the incline, with respect to traffic proceeding west on Stringtown Road approaching the intersection, improves as the motorist ascends the incline. Trooper Mattison's testimony, coupled with that of Faye White, constitutes evidence that the Sewell car was visible to Hale when the Hale car "was half way up the incline" and thereafter.

Deficiency (c), claimed by defendant, is factually unsound. Although neither Faye White nor her husband estimated the speed of the Sewell car in miles per hour, each testified that the Sewell car "was moving slowly" and it remained in motion until the impact. "It was obvious the Sewell car was going to go on Highway 28." When the Hale car, as discussed under deficiency (a), was 175 feet from the approximate point of impact, the Sewell car "was at the stop sign and was moving forward into Highway 28." In view of the respective distances traveled by the two vehicles prior to their collision, the jury could have concluded that the speed of the Sewell car was approximately one-fourth that of the Hale car. The speed of the Hale car was variously estimated to be "15 or 20," and "25 or 30." The testimony of Faye White was that she heard no sound of brakes being applied and she did not recall seeing the brake indicator lights "come on" on the Hale car. Hale made no effort to turn his vehicle into the left hand lane, which was free of oncoming traffic, nor did he turn into the driveway of a filling station which was on his right. Although Faye's speed exceeded that of Hale, she turned her vehicle into the filling station driveway and "gradually" stopped it prior to the collision. Without objection Faye testified that she did not "see anything at all that indicated to her that Hale was trying to avoid this collision." The steering equipment and brakes on the Hale car were in good condition. Trooper Mattison testified that a vehicle going 20 miles per hour, under the conditions which confronted Hale, could be brought to a stop within 50 feet, an estimate which included the driver's reaction time.

Deficiency (c) is to the effect that Hale did not have sufficient time and distance in which to have avoided the accident after "the time the Sewell car became visible " to Hale. The Sewell car became visible to him when Hale was at least 175 feet from the point of impact. The evidence is not deficient in any of the respects claimed by defendant.

The duty to keep a careful lookout and the concomitant duty to take "effective precautionary action" do not arise at precisely the same moment. Hawkins v. Whittenberg, 587 S.W.2d 358, 362(8) (Mo.App.1979). The duty to act does not necessarily arise at the exact time there is a duty to see. Thomas v. Wade, 361 S.W.2d 671, 674 (Mo. banc 1962). In view of the relative movements and speeds of the Hale car and the Sewell car prior to the impact, the jury could properly have found that Hale's duty to take effective precautionary action arose prior to the time the front of his vehicle reached a point at least 50 feet from the path of the Sewell car. The testimony supported a finding that Hale could have stopped his vehicle within 50 feet.

Defendant's first point has no merit.

Defendant's second point is that the trial court erred in admitting evidence, over defendant's objection, that Hale had consumed intoxicants prior to the accident and was, in the opinion of Trooper Corl, intoxicated. This evidence, argues defendant, was inadmissible for the reason "that there was no evidence of erratic driving or other circumstances showing impaired...