Smith v. Siercks
| Citation | 277 S.W.2d 521 |
| Decision Date | 11 April 1955 |
| Docket Number | No. 1,No. 44475,44475,1 |
| Parties | George W. SMITH, Appellant, v. Robert A. SIERCKS, Respondent |
| Court | United States State Supreme Court of Missouri |
Don G. Stubbs, James L. Williams, Stubbs, McKenzie, Williams, Merrick & Gibson, Kansas City, Vance Julian, Clinton, for appellant.
Kelso Journey, Clinton, for respondent.
On the 29th day of August, 1953, plaintiff, George W. Smith, while operating his automobile northward on State Highway 13 near Clinton, Missouri, overtook and passed a northbound automobile operated by defendant, Robert A. Siercks, and thereupon collided with a southbound automobile operated by one Mary Lou Murphy, whereby plaintiff sustained personal injuries and damage to his automobile. By this action, he sought to recover damages in the sum of $25,400 from both defendant Siercks and Mary Lou Murphy. The petition alleged that as he undertook to drive around and pass the Siercks automobile, Siercks negligently and deliberately increased the speed of his automobile and swerved it to the left, thereby denying plaintiff the right of way and delaying plaintiff's passage and prompt return to the right side of the highway; that Mary Lou Murphy, at the same time, saw plaintiff in a position of imminent peril of collision with her oncoming automobile and negligently failed to slow her speed or swerve to her right and avoid a collision of plaintiff's automobile with hers; and that the negligence of each of the defendants was a proximate cause of the collision.
Defendant Siercks is a minor. Prior to the trial, his mother, Carmyle Siercks, was duly appointed his guardian ad litem and thereafter, as such, answered and defended the suit. Plaintiff effected a settlement for the sum of $2,000 with Mary Lou Murphy and dismissed the action as to her when the case was called for trial. At the close of all the evidence, the trial court directed a verdict in favor of instant defendant and upon return thereof accordingly entered judgment, from which plaintiff appealed.
The theory of the trial court in directing a verdict for defendant, as he declared in an oral statement to the jury, was that
The collision occurred south of the city limits of Clinton. At that point Highway 13 extends north and south and is downgrade to the south. It is paved with 'blacktop' macadam, 20 feet, 9 inches, in width. The collision occurred at 11:15 p.m. The weather was warm and clear, the pavement dry.
Wayne Allman, State Highway Patrolman for the past seven and one-half years, testified in behalf of plaintiff: He is stationed at Clinton and arrived at the scene of the collision at 11:35 p.m. He came upon plaintiff's car first. It was in the ditch on the east side of the highway. South thereof he came upon the Murphy and Siercks cars. They were locked together, head-on, in the east traffic lane. There had been two collisions. First, the Murphy car, headed south, and the plaintiff's car, headed north, had sideswiped each other; and, second, the Murphy car had continued on southward for a distance of 159 feet from the point of its collision with plaintiff's car and there had collided head-on with defendant's car. There was glass and debris at the points of both collisions. There was a freshly 'dug-out' spot, a 'gouged-out' spot, in the blacktop portion of the highway, evidencing, the witness said, the point of collision of plaintiff's car and the Murphy car. The dug-out spot was 4 to 6 inches to the west of the center line of the pavement. There was debris at the dug-out spot 'in the vicinity of the center' of the highway, but 'more in the west lane'. At the point of the collision between the Murphy and defendant Siercks cars, the witness found a skid mark leading from the right rear wheel of defendant's car back southwestwardly a distance of 15 feet to the exact center line of the highway at an angle of 45 degrees, showing, the witness said, that the defendant's car was on the 'wrong' (west) side of the highway 'before [defendant] started braking down'. It was the type of a mark that 'would have been laid down by the motorist applying his brakes and sliding his wheels to come to a stop'. Plaintiff had been taken to the hospital before the patrolman arrived. The patrolman talked with defendant at the scene of the collision. Defendant there made a statement to him that 'he (Smith) had just passed me (defendant) and was in the middle of the road when he hit the other (Murphy) car.'
Plaintiff testified: On the night of the collision he drove from Deepwater toward Clinton at a speed of 40 to 50 miles per hour. He heard the patrolman (Allman) testify and his testimony 'placed the accident about where it occurred'. As he came up to the defendant's car, it was not going fast, 30 to 35 miles an hour, and was upon its right side of the highway. Plaintiff attempted to pass defendant's car. When he was even with defendant's car or a half car length in front of it, defendant 'speeded up on me', 'equal to my speed (of 40 to 50 miles per hour) or faster'. Both cars stayed relatively abreast for a matter of seconds. There was no car in sight when plaintiff attempted to pass defendant, but plaintiff got a glimpse of car lights in the air 'coming out of the city limits'. These lights (from the Murphy car) were a quarter of a mile away when he first saw them. Plaintiff then 'legged back to get behind the (defendant's) car', and guessed that defendant saw the reflection of lights about the time he did, as he (defendant) lagged back too. Plaintiff speeded up and went arount defendant and came into collision with the Murphy car, which, as it approached the point of collision, was weaving back and forth across the center line of the highway. Plaintiff sustained severe injuries, was in great pain, and was immediately taken to a hospital by a motorist that had been following his car. He did not see the gouged-out spot on the pavement that night and did not return to the scene of the collision until 14 weeks thereafter.
Plaintiff further testified:
'
On cross-examination, plaintiff was interrogated vigorously and at great length as to the position of his car upon the highway when it came into collision with the Murphy car. Space will not permit a detailed statement of his answers to these many questions. Several times he answered unqualifiedly that he had completely passed defendant's car and had returned to his side of the highway before the collision. Again he would state that to the best of his judgment he had returned to his side. He admitted that during testimony then recently given by him in the case of Murphy v. Siercks, arising out of the instant collisions, he had several times stated he had returned to his side before the collision occurred. On redirect examination, he undertook to explain these conflicting answers by stating, in effect, that due to the darkness of the night and his preoccupation with the act of passing defendant's car, he was not certain of his position; that he had believed he had fully returned to his side of the highway before the collision until Mr. Allman, the highway patrolman, exhibited certain pictures to him which showed the gouged-out spot on the highway to be west of the center line; and that these pictures had convinced him he had been mistaken in his conclusion that he had gotten back to his side before the collision occurred.
Mary Lou Murphy testified: She drove south out of Clinton at 25 to 30 miles per hour and first saw plaintiff's car when it began to pass defendant's car. At that time both cars 'seemed to speed up and slow down and speed up and slow down'. She slowed her car to a speed of 20 to 30 miles per hour. Plaintiff's car came ahead with a burst of speed and sideswiped her car. Her car was at that time on the west side of the highway. On cross-examination, she said plaintiff's car was 'on the wrong (west) side of the highway' when it collided with her car.
Defendant's version of the...
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