Snyder v. Hedges

• Decision Date: 31 July 1964
• Docket Number: No. 8260,8260
• Citation: 381 S.W.2d 376
• Parties: Ruby SNYDER, Plaintiff-Respondent, v. Walter HEDGES, Defendant-Appellant, and Kenneth Evans Light, Jr., Defendant.
• Court: Missouri Court of Appeals

Page 376

381 S.W.2d 376

Ruby SNYDER, Plaintiff-Respondent, v. Walter HEDGES, Defendant-Appellant, and Kenneth Evans Light, Jr., Defendant.

No. 8260.

Springfield Court of Appeals, Missouri.

July 31, 1964.

Tweedie Fisher, Jefferson City, for defendant-appellant, Walter hedges.

Donnelly & Donnelly, Lebanon, Hugh Phillips, Camdenton, for defendant, Kenneth Evans Light, Jr.

J. W. Grossenheider, Lebanon, Fred Foster, Jr., Camdenton, for plaintiff-respondent.

STONE, Judge.

This is an action for damages on account of personal injuries alleged to have been sustained by plaintiff Ruby Snyder, while riding as a passenger in the front seat of a 1962 Chevrolet ambulance driven by defendant Walter Hedges, when the Hedges ambulance collided with a 1951 Chevrolet coach driven by defendant Kenneth Evans Light, Jr., on U. S. Highway 54 in the resort community known as Lake Ozark, Miller County, Missouri, about 9:10 P. M. on Tuesday, March 27, 1962. The jury returned a verdict for $4,500 against both defendants. From the judgment entered thereon, only defendant Hedges appeals.

At and near the point of accident, Highway 54 has a two-lane concrete roadway, 21 feet in width, and is treated as running east and west. Numerous establishments, catering primarily to the tourist trade, are located on each side of Highway 54 as it passes through Lake Ozark; and, on each side of the highway, there is an area, wholly paved with blacktop, between the two-lane concrete roadway and the east-and-west sidewalk in front of the business buildings. At the point of accident, the blacktop area on the north side of Highway 54 extends approximately 28'9"' from the north edge of the two-lane concrete roadway to the curb in front of the Casablanca Club, and the blacktop area on the south side of the highway extends approximately 50'7"' from the south edge of the concrete roadway to the curb in front of the Dam Club and Adams Market.

At the time of accident, defendant Hedges was eastbound on Highway 54, en route from the home of Mrs. Lillie Hart west of Macks Creek, Camden County, Missouri, to the Still Osteopathic Hospital in Jefferson City, Missouri. Mrs. Hart, then 'seriously ill' although not 'an emergency case,' was being transported to the hospital by direction of Kenneth Ridgeway, D. O., her attending physician. The patient, Mrs. Hart, was lying on a cot in the rear of the ambulance, a daughter was seated beside the cot, and plaintiff, a stepdaughter, was riding on the right side of the front seat. As the ambulance proceeded on its mission, a revolving and blinking dome light flashed a red beam from the top of the vehicle and two red lights on the front of the vehicle blinked alternately. The weather was clear and the pavement was dry.

Defendant Light had parked his Chevrolet automobile on the north side of Highway 54 in front of the Casablanca Club, headed north and thus at right angles to the highway. Accompanied by a female companion, Light entered his Chevrolet with the intention of backing from his parking place and then proceeding toward the west on Highway 54. Regardless of whether or not his view to the west (the direction from which the Hedges ambulance was approaching) was obstructed or limited by another parked automobile (as to which different inferences might be drawn from his pretrial deposition and from his testimony upon trial), Light readily admitted that he did not look to his left or to the west after he 'commenced to move' his automobile backward, that his attention then was directed to a 'buddy' in front of the Casablanca Club, and that he never saw the eastbound ambulance prior to the collision. He described his backing, preparatory to traveling west on the highway, in this language: 'I backed out into the highway with my back end going east. I was backing from north to east, this way.' (All emphasis herein is ours.) In his trial testimony, Light thought that, at the time of collision, the left rear portion of his automobile was six to eight inches across the center line of the concrete roadway of Highway 54, i.e., on the south side thereof. In reporting to Sergeant Seeley, the investigating officer, shortly after the accident, Light had said 'that I backed out in front of the ambulance.' Without undertaking to fix the point of impact more precisely, the clear import of the testimony as a whole is that the collision occurred on the south side of the center line of the highway and that, at the time of accident, the eastbound Hedges ambulance was wholly in its right-hand (the south) lane of the two-lane concrete roadway.

Plaintiff's witness Sandfort, a 'good friend' of defendant Light, testified that in his 1961 Chevrolet pickup he had followed the eastbound Hedges ambulance for some three miles before it reached Lake Ozark, with Sandfort maintaining a distance of 'about four car lengths' or '70 feet' between the two vehicles; that the ambulance traveled at a speed of '59 to 61 miles an hour * * * on the average 60 miles an hour'; and that, prior to the accident, the stop lights on the ambulance did not come on and the ambulance did not slacken speed or swerve. Sandfort said that, as for himself, 'I slowed down when I seen [sic] Mr. Light go out in the middle of the road and the ambulance not slowing down,' and that the ambulance then 'was about one-half of one-tenth of a mile' from the Light automobile. When asked by Light's counsel whether that distance would have been 'about 260 feet,' Sandfort grunted an 'uh huh.' Sergeant Seeley, also called as a witness for plaintiff, found skidmarks, 60 feet in length, made by the ambulance in the eastbound (south) traffic lane. These marks 'angled toward the south edge of the [concrete] pavement' and terminated in 'the area of the debris.'

The initial vehicular contact was between the left front corner of the eastbound ambulance and the rear 18 inches of the left rear fender of the Light automobile, the front end of which must have been pointed in a northwesterly direction with the rear end toward the southeast. The entire left side of the eastbound ambulance was damaged as it sideswiped the left rear corner of the Light automobile and came to a stop on the concrete roadway about 'one car length' (so Light said) east of the point of collision. Neither Hedges nor Light was asked specifically, and it is not clear from the record (or of importance here), whether, at the moment of impact, Light had brought his backing automobile to a complete stop. Prior to the collision, Hedges did not sound either the horn or the siren on the ambulance.

Defendant Hedges' description of the accident was: 'It [the Light automobile] zoomed out of the parking area there where it was parked into my pathway and it was just a split-second timing--I mean the boy was there and I was there, and I put my brakes on just immediately and we were together. There just wasn't any time element to it. * * * There wasn't time to do anything. I mean he just came out there and I applied the brakes, turned my car off of the right-hand side as much as I could, and that was about all the time there was.' When asked to estimate his speed 'within the last 150 or 200 feet before the collision,' Hedges answered 'between 35 and 40 miles an hour.' After agreeing that she had not complained at any time concerning speed, plaintiff estimated the speed of the ambulance at 'possibly 40 miles an hour' as it drove through Lake Ozark. Her counsel offered in evidence four kodak pictures (of the admission of which defendant Hedges then and now complains) showing 'School Crossing,' 'Speed Zone--30 Miles' and 'Congested District Ahead' signs on the south shoulder of the highway which eastbound vehicles pass near the west edge of Lake Ozark. Sergeant Seeley, the only witness who testified on this subject, stated that 'there wasn't any [traffic] congestion in the area' on the evening of the accident under consideration.

Defendant Hedges' primary complaint on this appeal is that the trial court erred in giving plaintiff's verdict-directing instruction 1 by which the case was submitted as to Hedges (so he insists) upon general negligence, whereas plaintiff's petition charged him with specific negligence. The petition contained four assignments of alleged negligence on the part of defendant Hedges, each of which was stated in a separate subparagraph. Three of these assignments were conventional charges of specific negligence, namely, (1) operation of the ambulance at a high, dangerous and excessive rate of speed, (2) failure to keep a proper lookout, and (3) failure to slacken speed, stop or swerve. The fourth assignment (hereinafter referred to as the quoted assignment) was that Hedges negligently 'caused or permitted his ambulance to drive into the rear of the automobile driven by defendant Kenneth Evans Light, Jr., when by the exercise of the highest degree of care he could have avoided said collision.' Instruction 1 hypothesized certain undisputed facts, i.e., (a) that plaintiff was a passenger in the Hedges ambulance eastbound on Highway 54 in Lake Ozark, (b) that Hedges was in exclusive control of the ambulance, and (c) that the Light automobile 'had been parked east of the Chevrolet ambulance and was backing in a southerly direction from the north shoulder of said highway onto said highway and into the eastbound lane of traffic,' and then directed a verdict for plaintiff upon the findings 'that defendant Walter Hedges failed to exercise the highest degree of care in the operation of his Chevrolet ambulance and negligently and carelessly caused, allowed and permitted his Chevrolet ambulance to collide with the rear of the automobile driven by defendant Kenneth Evans Light, Jr.' and that plaintiff was injured as a direct and proximate result thereof. Obviously, the submission as to defendant Hedges was on the quoted assignment in the petition.

It undoubtedly is true that where, as here, the petition includes assignments of...