Snyder v. Jensen

• Decision Date: 11 July 1955
• Docket Number: No. 44678,No. 1,44678,1
• Citation: 281 S.W.2d 802
• Parties: Ray SNYDER, Respondent, v. Dr. Leland JENSEN and Oral H.McCubbin, Administrator of the Estate of Edward Pace, Deceased, Appellants
• Court: Missouri Supreme Court

Page 802

281 S.W.2d 802

Ray SNYDER, Respondent, v. Dr. Leland JENSEN and Oral H.McCubbin, Administrator of the Estate of Edward Pace, Deceased, Appellants.

No. 44678.

Supreme Court of Missouri, Division No. 1.

July 11, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

and Opinion Modified on Courts Own Motion Sept. 12, 1955.

Charles F. Hamilton, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant, Dr. Leland Jensen.

Wilbur C. Schwartz, St. Louis, for appellant Oral H. McCubbin, Administrator of the Estate of Edward Pace, Deceased, Joseph Nessenfeld, St. Louis, of counsel.

Barnhart, Wood & Bransford, Cleo V. Barnhart, St. Louis, for plaintiff-respondent, Ray Snyder.

COIL, Commissioner.

On February 8, 1953, at about 9:30 a. m., two automobiles and a truck were involved in an accident on east-west Highway 166 (22'-wide black-top on which was a white center line, with red clay and rock hardpacked 10' shoulders on each side) between Joplin and Springfield. Respondent Ray Snyder (herein called plaintiff) was a passenger in appellant's (Dr. Leland Jensen's) Chrysler automobile proceeding eastwardly. Mr. and Mrs. Edward Pace were proceeding eastwardly in their Cadillac automobile which struck the left rear of a milk truck as it proceeded eastwardly under the circumstances to be related. Both Mr. and Mrs. Pace were killed. Mr. Pace's estate is an appellant through Oral H. McCubbin, its administrator. At the time of the events herein described, the highway was dry, the weather clear, and there was no other involved traffic.

Plaintiff sustained injuries and had a $40,000 judgment therefor against both appellants who, either or both, contend: that plaintiff failed to make a submissible case; that the trial court erred in giving instructions and in admitting evidence; and that the verdict was excessive and so excessive as to indicate the jury's passion and prejudice.

The evidence, viewed from a standpoint favorable to plaintiff, justified the jury in finding the facts to be as they appear in this statement. The Cadillac-truck collision point was about 10 feet west of the west edge of a farm entrance or driveway which ran northwardly from the north edge of the pavement. The west edge of this driveway was 600 feet east of the crest of a hill. As Jensen drove east in the south right lane at 70 to 100 miles per hour, the Pace Cadillac preceded him by 75 feet. When the Cadillac was about 100 feet west of the hilltop, it crossed the center line into the north or westbound traffic lane and proceeded eastwardly. Jensen continued in the south or eastbound lane at a speed which maintained a 100' interval between his and the Pace car. When the Chrysler was about 90 feet west of the hilltop, Jensen saw the milk truck 690 feet to the east (about 90 feet west of the driveway) with its left wheels to the left of the center line, angling northeastwardly in a left turn into the driveway. At that time, Jensen 'realized that there was a probability of a collision between the Cadillac and the milk truck' and removed his foot from the accelerator, placed it at the brake pedal, but did not apply the brakes until the Cadillac 'brake lights' flashed on at a place 290 feet west of the collision point. The Cadillac left skid marks in the westbound traffic lane parallel with the center line for a distance of 45 feet; then careened or skidded in a sideway position (its front facing south and slightly east and its rear north and slightly west) for a distance of 160 feet into collision with the left rear of the milk truck. As the Cadillac skidded, and for a short distance prior to the collision, its front extended into the eastbound lane 4 or 5 feet. The driver of the milk truck (a 2 1/2-ton G. M. C. equipped with a 2,400-pound 'milk bed' and loaded with 8,700 pounds of cans and milk) saw the two automobiles approaching from his rear as they came over the crest of the hill. At that time the milk truck was 3 or 4 feet into the north lane, 40 feet west of the driveway, and 30 feet west of the collision point. Prior to the collision, the milk truck changed course from northeast to southeast in an attempt to get back into the eastbound traffic lane. At the time the Cadillac struck the truck, the truck's left rear dual wheel was 3 or 4 feet north of the center line and the truck body extended 2 or 3 feet beyond the rear wheels. The left front side of the Cadillac went under the rear of the truck body, striking the inside of the left dual wheel, causing the Cadillac to be whipped around in a complete circle to the west so that it came to a stop on the north shoulder about 75 feet east of the impact point, with its front end about 10 feet north of the north edge of the pavement. After the impact, Kennedy drove the milk truck onto the south shoulder and stopped about 300 feet east of the collision point.

In the meantime, Jensen had continued eastwardly in the eastbound traffic lane. His Chrysler left a 60'-long skid mark which began 75 feet west of the place where the truck and the Cadillac collided. When Jensen reached a place about 15 feet west of the collision point, he drove his car off the highway and traveled on the shoulder for 25 feet, then turned southeast into a shallow bar ditch and continued eastwardly for about 200 feet where his automobile struck a culvert and overturned. Jensen said he turned off the pavement to avoid collision with the Cadillac; that he went across the shoulder and into the bar ditch to be clear of an apprehended danger of the Cadillac and truck coming onto the shoulder as a result of their collision; that he continued on with the intention of stopping in the ditch at about the location of the culvert, but that just before he reached that point he, for the first time, saw the culvert and, in order to avoid striking it, turned back toward the pavement; that the angle between the shoulder and the bar ditch had become greater as he went eastwardly and, in his attempt to turn back onto the pavement, the Chrysler overturned.

Jensen also testified: that he was going 70 m. p. h. when he first saw the milk truck and realized the probability of a collision between it and the Cadillac; that he turned off the highway at a 45-degree angle at a speed between 40 and 55 m. p. h.; and that he could have stopped his Chrysler at 70 m. p. h., under the conditions there obtaining, within 300 feet. Other necessary evidence will appear in the ensuing discussion.

The case was submitted by plaintiff against Jensen by two separate verdict-directing instructions. One hypothesized excessive speed under the circumstances and the other Jensen's failure to stop on the pavement before reaching the place of collision between the truck and the Cadillac. Jensen contends in his brief that no submissible case was made on excessive speed. An examination of the argument, however, makes it apparent that the contention is, in reality, not that plaintiff failed to adduce evidence from which a jury reasonably could find that Jensen's excessive speed was a proximate cause of plaintiff's injury, but rather that speed as submitted in plaintiff's instruction 1 was not a negligent speed and, in any event, could not have been a proximate cause.

There can be no doubt that plaintiff's evidence was such that a jury reasonably could have found that Jensen's speed was excessive under the circumstances and was a substantial factor in causing Jensen to drive his automobile off the pavement and into subsequent collision with a culvert some 225 feet to the east. This conclusion is demonstrable by the fact that, although Jensen could have stopped in 300 feet, and although, under the evidence most favorable to plaintiff, Jensen had over 600 feet in which to stop after he realized the danger of a collision on the highway a short distance ahead of him, he not only failed to stop but decreased his speed only to 40-55 m. p. h. The fact that a jury reasonably could have found that Jensen was guilty of negligent acts and omissions other than excessive speed which may have also proximately contributed to cause plaintiff's injury, did not, under the facts here, prevent plaintiff from going to the jury on Jensen's negligent speed which contributed to cause his injury; and this, even though the injury would not have occurred but for the occurrence of other negligent acts or omissions. Horrell v. St. Louis Public Service Co., Mo., 277 S.W.2d 612. The jury reasonably could have found that Jensen's excessive speed contributed to the necessity for him to leave the pavement and that his turning off the pavement proximately contributed to cause plaintiff's injury.

Instruction 1, in pertinent part, required the jury to find that the milk truck 'was being operated in an eastwardly direction on Highway No. 166 and was approaching the farm entrance * * * with its left wheels to the north of the center line of the highway and in a gradual turn to the left toward said farm entrance and * * * that at said time the Cadillac automobile * * * was being operated in an eastwardly direction * * * approximately 600 feet to the west of said farm entrance and at or near the crest of the hill * * * on the north half of said highway * * * and * * * that at said time the Chrysler * * * was being operated eastwardly * * * on the south half of the pavement * * * within 100 feet [of the Cadillac] * * * and * * * that [both automobiles] were then being operated at a rate of speed of seventy (70) or more miles per hour, and if you find that the speed that said Chrysler automobile was being operated, under the aforesaid circumstances and conditions, was high, excessive and dangerous and * * * that * * * Jensen, in so operating said Chrysler * * * was thereby negligent * * *.' (Italics ours.) The remainder of the instruction hypothesized the movement of the Cadillac into the south half of the pavement and into collision with the milk truck, Jensen's...