Shelton v. Bruner, 8895

Citation449 S.W.2d 673
Decision Date30 December 1969
Docket NumberNo. 8895,8895
PartiesWallace Byron SHELTON and Lydia J. Shelton, Plaintiffs-Respondents, v. Mark James BRUNER, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Farrington, Curtis & Strong, E. C. Curtis, Springfield, for defendant-appellant.

Daniel, Clampett, Ellis, Rittershouse & Dalton, William A. R. Dalton, Springfield, for plaintiffs-respondents.

STONE, Judge.

In this jury-tried action at law arising out of a vehicular collision, plaintiff Wallace B. Shelton was awarded $3,500 for personal injuries and $500 for property damage and plaintiff Lydia J. Shelton was awarded $250 for loss of consortium. Defendant Mark James Bruner appeals.

The accident under consideration occurred about 3 P.M. on Sunday, September 24, 1967, a clear, sunny day, on Route M some five miles west of Highway 160 in Greene County, Missouri. At and near the point of accident, Route M 'is straight but hilly' and has an asphalt roadway approximately 22 feet in width with an interrupted white center line. No-passing zones are marked with solid yellow lines. The north shoulder of the road is about six feet in width, the south shoulder about four feet.

Plaintiff Wallace (referred to as plaintiff), then 56 years of age, alone in his 1951 Chevrolet sedan, and westbound on Route M en route to his farm home 16 miles southwest of Springfield, was traveling 'uphill' in the north or westbound traffic lane at a speed of about 40 miles per hour. Defendant Bruner, then a high school junior 1 at Republic, accompanied by schoolmate James Michael Beshears, and eastbound on Route M en route to the farm of Beshears' grandparents to 'to hunting,' was driving (with prior parental permission) a 1963 Studebaker sedan owned by defendant's father.

Plaintiffs' evidence. Plaintiff testified that, as he was proceeding westward uphill, he first saw an approaching eastbound automobile (identified by defendant's witness Beshears, and hereinafter referred to, as a blue Ford), when it was 'about six car lengths' distant--an intervening space immediately translated by plaintiffs' counsel into 'approximately a hundred feet.' Returning to plaintiff's testimonial account, 'the next thing I knew this other car (defendant's eastbound Studebaker) . . . whipped out to pass'; it was in plaintiff's lane of travel when he first saw it. He 'immediately' applied his brakes and 'pulled towards the right' so that, at the time of accident, plaintiff's Chevrolet was angling in a northwesterly direction with both front wheels and the right rear wheel on the right-hand or north shoulder of the road. Plaintiff essayed no estimate of the speed of defendant's automobile. According to plaintiff, 'he (defendant) slammed on his brakes, I suppose, to get back in line and he couldn't do it; it (the Studebaker) went out of control and he slid sideways over on my side.' The impact was between the right side of defendant's skidding or sliding Studebaker and the front end of plaintiff's Chevrolet. Plaintiffs' witness Williams, the investigating trooper of the Missouri State Highway Patrol, found a set of skidmarks, 22 feet in length, leading to plaintiff's Chevrolet and another set, 90 feet in length, leading to defendant's Studebaker. Photographs introduced as plaintiffs' exhibits show that one of the skidmarks leading to defendant's Studebaker began at a point near to, but south of, the interrupted white center line of the blacktop roadway while the parallel skidmark in that set began at a point several feet north of the center line, and that this set of skidmarks curved to the north, running off the north edge of the blacktop just west of the point of impact. In our view of the case, it becomes unnecessary to digest plaintiffs' evidence pertaining to alleged personal injuries and property damage.

Defendant's evidence. After defendant turned from Highway 60 onto Route M, he drove at a speed of about 55 miles per hour until he overtook another eastbound automobile, the blue Ford. Both eastbound vehicles were then in a no-passing zone marked with a solid yellow line on the south side of the interrupted white center line. Defendant followed 'right behind' the blue Ford--'about a car length behind it' until he passed the east end of the yellow line in the south or eastbound lane, at which time and place he accelerated the speed of the Studebaker, 'pulled out' to see if he could pass around the blue Ford, and then first sighted plaintiff's approaching westbound Chevrolet. Defendant insisted that, from his position behind the blue Ford, he could not see the Chevrolet before he 'pulled out.' When asked to describe his 'first reaction' upon discovery of the Chevrolet defendant said 'I slammed on my brakes and tried to get back in my lane' but 'the (blue Ford) beside me in some way had slowed down or did something--anyway he was where I couldn't get right back in my lane.' Plaintiff's Chevrolet was 'still coming at me,' so defendant turned to his left and, with the brakes on the Studebaker continuously applied, headed for the north shoulder as 'the only possible was I could see to avoid the accident.' He 'guessed' that, when the front wheels of the Studebaker went onto the shoulder, the automobile 'started sliding sideways.' With plaintiff likewise heading for the north shoulder, the hereinbefore-recorded result was an impact between the right side of the skidding or sliding Studebaker and the front end of plaintiff's Chevrolet.

Generally speaking, defendant's passenger Beshears confirmed defendant Bruner's testimony. We note specifically that Beshears first saw plaintiff's approaching Chevrolet when defendant 'speeded up' and 'pulled over' into the left-hand or north lane to pass around the blue Ford; and that, when asked how far distant plaintiff's Chevrolet was when he first saw it, Beshears responded 'I wouldn't know . . . it happened too fast' and agreed with cross-examining counsel when he snapped his fingers, 'yes, about like that.'

In their verdict-directing instructions, plaintiffs submitted in the disjunctive, as our present practice requires (MAI 1.02), two improper acts, to wit, failure to keep a careful lookout or driving on the wrong side of the road. Unless there was sufficient evidence to support submission of both acts, the giving of those instructions constituted error. 2 Defendant frankly concedes submissibility on the act of defendant's driving on the wrong side of the road but vigorously insists that failure to keep a careful lookout was not submissible on the evidence adduced. In our appellate inquiry as to submissibility of that assignment, we consider the evidence in the light most favorable to plaintiffs and accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, tempered only by the wise, judicious limitation that this rule calls for consideration of all, not merely an isolated part or parts, of the facts shown by plaintiffs and does not require or authorize the court to supply missing evidence, or to give plaintiffs the benefit of forced or unreasonable inferences, or to disregard the dictates of common reason and accept that which, on the whole record, obviously is not true. 3

Instant defendant contends that failure to keep a careful lookout was not submissible because there was no competent and substantial evidence to permit and support a finding (a) that defendant could have seen plaintiff's Chevrolet sooner than he did or (b) that defendant saw, or in the exercise of the highest degree of care could and should have seen, that automobile in time thereafter to have avoided the accident.

Of (a). It will be recollected that the only evidence concerning the relative positions of defendant's eastbound Studebaker and the blue Ford before the Studebacker 'whipped out' or 'pulled out' across the center line and into the westbound lane of travel was the testimony of defendant himself who said that he had been following 'right behind' the blue Ford--'about a car length behind it' until he had passed the east end of the yellow line denoting a no-passing zone for eastbound vehicles. Defendant said that he could not see plaintiff's Chevrolet before he 'pulled out'; and plaintiff stated that he did not see defendant's Studebaker until 'after it whipped out to pass' and 'supposed' that defendant could not have seen him sooner--a supposition seemingly not unreasonable in the stated circumstances. Cf. Johnson v. Bush, Mo.App., 418 S.W.2d 601, 606. Upon trial, defendant testified that he saw plaintiff's Chevrolet 'immediately' when he 'pulled out' to pass around the blue Ford, and that this initial view was had when 'I nosed (the Studebaker) out to see if I could pass' and before it was 'completely' in the north or westbound lane--a statement consonant with and supported by the physical fact that the right-hand skidmark made by the Studebaker started on the south side of the interrupted white center line of the blacktop roadway.

Plaintiff's trial reckoning was that he did not see the eastbound blue Ford until it was 'about six car lengths' or 'approximately a hundred feet' distant, so the intervening distance between his Chevrolet and defendant's Studebaker when the latter vehicle 'whipped out to pass' (that being 'the next thing I knew') and was initially sighted by plaintiff would have been even less. However, the physical facts not only serve to illustrate the frailty and fallibility of such testimonial estimates but also demonstrate that the intervening distance between plaintiff's and defendant's automobiles when each driver initially sighted the other and perceived impending danger must have been considerably more than six car lengths or one hundred feet. For plaintiff at 40 miles per hour would have traveled about 44 feet during his reaction time of 3/4 second 4 and thereafter 22 feet, the measured length of the Chevrolet's skidmarks, or a total of some 66 feet to the point of...

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