Stigers v. Harlow

• Decision Date: 09 October 1967
• Docket Number: No. 52336,No. 1,52336,1
• Citation: 419 S.W.2d 41
• Parties: Sam STIGERS and Lila Stigers, Appellants, v. Richard M. HARLOW, Respondent
• Court: Missouri Supreme Court

Page 41

419 S.W.2d 41

Sam STIGERS and Lila Stigers, Appellants, v. Richard M. HARLOW, Respondent.

No. 52336.

Supreme Court of Missouri, Division No. 1.

Oct. 9, 1967.

C. Dudley Brandom, Gallatin, Stephen J. Millett, Kingston, for appellants.

Somerville, Cleaveland & Macoubrie, Ronald L. Somerville, David P. Macoubrie, Chillicothe, for respondent.

SEILER, Judge.

Plaintiffs sued defendant for the wrongful death of their seventeen-year-old son, struck by defendant's automobile. From a verdict and judgment in favor of defendant, plaintiffs appeal. At the outset we are met with respondent's motion to dismiss the appeal on the ground that appellants have failed to file the transcript on appeal within the time allowed by rules 82.18 and 82.19, that in obtaining a ninety-day extension from the trial court on the eighty-sixth day after filing the notice of appeal, appellants failed to show they had complied with rule 82.19 by ordering the transcript in writing from the court reporter within thiry days after filing the notice of appeal and filing a duplicate copy of the order in the case within fifteen days thereafter. Absent compliance with such conditions, the trial court has no authority to make such extension, rule 82.19; Gaddy v. State Board of Registration for Healing Arts, (Mo.App.) 397 S.W.2d 347, 349.

At the oral argument, counsel for appellant offered to introduce a carbon copy of a timely letter to the court reporter, ordering a transcript, and stated that a carbon copy had been sent to the circuit clerk. Counsel for respondent stated this was the first knowledge he had that such a letter ever existed. Being reluctant to dismiss the appeal in the face of the assertion that appellants did comply with rule 82.19, we have obtained a supplemental transcript from the circuit clerk and court reporter on the point involved and on the strength thereof overrule the motion to dismiss the appeal.

However, we caution counsel that it is their duty and responsibility where an extension of time in which to file the transcript has been granted by the trial court under rule 82.19, to see that the transcript on appeal shows affirmatively the trial court had authority to act. Counsel cannot rely on us to do this for them. The safest procedure would be for counsel to see that the trial court's order extending the time recites the date on which the transcript was ordered from the reporter and the date on which the copy of the order was filed in the case.

The fatal accident happened at night on highway 13 between Gallatin and Hamilton, around ten o'clock. The highway runs north and south and has a blacktop surface 21 feet wide. The son's automobile, a 1958 Chevrolet four-door sedan, was stopped on the right-hand or east side of the highway, headed north. Some of the witnesses testified most of the car was on the east shoulder; others that it was half on the blacktop and half on the shoulder. The sheriff testified the flat surface of the shoulder was about 3 feet wide and it then sloped off about 3 feet into the ditch. The youth apparently was changing the left rear tire. The left rear corner of the car had been raised with a bumper jack, which left an indentation on the blacktop surface, 18 to 24 inches west of the east edge thereof. Three of the nuts on the bolts on the left rear wheel were fairly well tightened and three barely started on the threads. There was a wheel wrench near the rear wheel. A flat tire was lying on the east shoulder, south of the car. Witnesses found part of a flashlight on the edge of the blacktop, between the jack and the flat tire. Snow was falling, some describing it as ordinary medium snow, others as a heavy wet snow. The blacktop surface was wet and slick. There was a dispute as to what lights, if any, were burning on the stopped car. Plaintiffs' witnesses testified that when they passed the scene, driving south, a few minutes before the accident, the headlights were on and one said as they passed she saw the reflection of the taillights. Defendant, called as a witness by plaintiffs, testified there were no lights burning on the car, front or rear, as did his wife. The first witnesses to arrive on the scene afterwards testified there were no lights burning on the stopped car.

Those who passed the car shortly before the accident testified the trunk lid was up. One said the car was jacked up with the left rear wheel off. They noticed a young man standing closely behind the back end of the car. One witness observed a lighted flashlight in his hand; others did not.

The only eyewitnesses were defendant and wife. Defendant testified he was driving 45 to 50 miles per hour, on the east half of the road, looking straight ahead, windshield wipers operating, headlights on bright; that it was snowing, that he did not at any time see the decedent, that the first thing he saw ahead was what 'seemed like a blur', right in front of him, 25 to 30 feet ahead, that this turned out to be the youth's car. He swerved to his left or west to miss the car and as he swerved he felt an impact. As to visibility, he testified on direct examination he could only see ahead 25, 30 or 40 feet because of the snow. On cross-examination he first said the snow did not affect the visibility, but then said it did interfere with his ability to see ahead.

Mrs. Harlow testified visibility was poor, because of the falling snow, that they could see around 40 feet ahead, that they missed the car about three feet, that when the two cars were 'approximately even' there was an impact and what must have been the body struck the right-hand side of the windshield. Defendant then started to stop, pumping his brakes.

The sheriff testified, without objection, that defendant told him he met a car, had his lights on low beam, and when he raised the lights to high beam, there was the car. Another witness said defendant said the son 'just raised right up in front of my lights' and 'I hit him.'

The damage on the defendant's vehicle was a broken right front headlight, right front fender dented, rear view fender mirror on the right knocked off and windshield broken in the lower right-hand corner. There was no damage to the decedent's vehicle, except the sheriff observed a slight dent at the left rear, not otherwise elaborated upon. The sheriff testified further he saw nothing at the scene or on either car indicating any contact between the two vehicles.

The body of the deceased was found on the east shoulder, about 30 feet in front or north of his car. There was no testimony as to the color of the clothing, except the jeans might be blue. The injuries were not described with particularity, except there was a 'good sized indenture in the back of the head'.

The witnesses who were travelling south before the accident testified they observed the lighted headlights on the stopped car from a distance of a half to quarter of a mile away. There was testimony that the road to the south from the location of the stopped car was straight and slightly down grade with no...