Sundermeyer v. Lentz, 50346

• Decision Date: 14 December 1964
• Docket Number: No. 50346,50346
• Citation: 386 S.W.2d 16
• Parties: Robert SUNDERMEYER, Respondent, v. Raymond LENTZ and Armour Agricultural Chemical Company, Appellants
• Court: Missouri Supreme Court

Page 16

386 S.W.2d 16

Robert SUNDERMEYER, Respondent, v. Raymond LENTZ and Armour Agricultural Chemical Company, Appellants.

No. 50346.

Supreme Court of Missouri,

Dec. 14, 1964.

Motion for Rehearing or for Transfer to Court En Banc Denied

Jan. 11, 1965.

John L. Rooney, Rooney, Webbe & Davidson, William L. Mason, Jr., St. Louis, for respondent.

Gerald D. Morris, St. Louis, for appellants.

PRITCHARD, Commissioner.

The automobile of plaintiff was struck in the rear by the truck of defendant Armour Agricultural Chemical Company, being operated by defendant, Lentz. Plaintiff recovered a $16,000 verdict. Defendants appeal from the judgment entered in accordance with the verdict against them.

Defendants first say that plaintiff failed to make a submissible case against them. We shall, therefore, in following established procedure, set forth the facts in their light most favorable to plaintiff. We disregard defendants' evidence except to the extent that it aids plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 312. The following facts, which the jury reasonably could have found, bear upon plaintiff's submitted hypothesis of his case in his Instruction No. 4 that Armour's truck, being driven by Lentz, was following plaintiff more closely than was reasonably safe and prudent under the circumstances.

On October 5, 1960, a clear day, between 8:30 and 8:45 a.m., plaintiff was driving west on Highway 66 to his work. Prior to the collision plaintiff had been moving continuously at a speed of about 40 miles per hour. When he was 300 to 400 feet east of the point of impact by the truck with the rear of his automobile, and while he was going upgrade to the crest of the hill before he reached the downslope where the collision occurred, plaintiff saw a school bus coming toward him. The school bus had at its top two dark amber lights which were flashing back and forth. He continued to watch the bus; there was no traffic in front of him within the last 300 feet before the impact took place; and he was not then aware of any traffic behind him. Plaintiff was then traveling in the north lane of Highway 66, which was a dry concrete pavement of two lanes. There was a shoulder on plaintiff's right about 10 feet wide. At the time plaintiff observed the bus it was 50 to 100 feet west of the point of impact. Plaintiff then took his foot off the accelerator of his automobile. Thereafter the school bus came to a stop on the pavement. Plaintiff's speed then was 15 to 20 miles per hour and he was 50 to 100 feet from the point of impact. There were three children (of witnness, Mrs. Faller) standing by a driveway on the south side of the highway where the bus stopped to permit them to board it. Plaintiff saw a 'stop' signal facing him on the left side of the bus, at the level of the driver. Plaintiff applied his brakes when the school bus stopped and glanced in his rear-view mirror and saw some type of vehicle. He did not know what kind of vehicle it was or how far it was behind him.

Plaintiff brought his vehicle to a gradual halt and stopped opposite a driveway which was on the south side of the highway, or just a little east of it. Plaintiff sat there about 5 seconds and then received a terrific jolt from the rear. The jolt moved plaintiff forward 15 to 20 feet toward the center of the bus, but parallel to it. At the time of the collision, plaintiff had his foot on the brake. After the impact the driver of the truck which struck plaintiff's vehicle came to the door thereof and identified himself as defendant, Raymond Lentz.

Interrogatories addressed to Armour were answered that Raymond B. Lentz was in its employ on October 5, 1960. Lentz was making a delivery in Armour's truck to one of its customers when the collision occurred. The truck Lentz was driving was a 1957 GMC, equipped with four-wheel hydraulic brakes in good condition.

Defendant Raymond Lentz testified at the trial that he was involved in a collision of a Chevrolet truck he was driving with the 1958 Chevrolet automobile of plaintiff on October 5, 1960. He first saw the Chevrolet automobile ahead of him about two miles from the place of impact. Lentz remained behind plaintiff about 3 car lengths, 45 to 50 feet, for a majority of the time, at a highest speed of 40 to 45 miles per hour. The school bus was seen by Lentz near the scene of the collision when it was still moving and Lentz was 200 to 250 feet away from it. At that time 3 car lengths still separated the truck and plaintiff's autmobile, and Lentz was then moving at 30 miles per hour. According to Lentz, plaintiff was then going at about the same speed. Thereafter, Lentz noticed the stop lights on the school bus blinking on and off. He also saw some children standing alongside the road on the south side. He saw the lights of plaintiff's automobile suddenly going on and its back end went upward. Plaintiff stopped before the school bus stopped, and when Lentz first saw plaintiff's brake lights go on, he 'slammed' on his truck brakes. Lentz was still 3 car lengths behind at a speed of 25 miles per hour. Lentz came into contact with plaintiff's automobile at about 5 miles per hour, and moved plaintiff forward 5 or 6 feet. The truck bed was three fourths loaded with sacks of fertilizer. At 30 miles per hour Lentz could have stopped between 80 and 85 feet; 75 feet separated Lentz from the point of impact at the time he saw plaintiff's lights go on. Plaintiff could have been stopped for 2 or 3 seconds before the impact.

Portions of Lentz' deposition were offered by plaintiff and received in evidence as admissions against interest. Upon motion the trial court ruled that the offered portions of the deposition were admissions against defendant Lentz' interest only, and so instructed the jury. See Davis v. Sedalia Yellow Cab Company, Mo.App., 280 S.W.2d 869, 871. The pertinent parts of the deposition are that Lentz was driving a delivery truck, the bed of which was 14 feet long. He left Armour's plant around 7:00 o'clock in the morning on October 5, 1960, with a truckload of fertilizer, described by him as a heavy load, being normal size 100 pound bags piled about 4 feet high and covering three fourths of the truck floor. Under the circumstances existing at the scene, Lentz could stop his truck in about 50 feet at his speed of 30 miles per hour. Plaintiff was stopped in a matter of seconds--10 seconds--and plaintiff's light went on for that 10 seconds when he came ot a stop. Lentz knew that plaintiff stopped because the school bus was there, and while he was applying the brakes on the truck he hit the rear of plaintiff's automobile.

Mrs. Shirley Faller lived in a house adjoining the scene of the collision. She saw the truck and plaintiff's automobile going along the highway at 40 miles per hour and with 3 car lengths between them. There was no change in the distance between the two vehicles at the time plaintiff started to slow down. Both the school bus and the automobile came to a stop at about the same spot. Mrs. Faller heard the screeching f tires or brakes, and witnessed the truck contacting the rear end of the automobile. She could see the driver of the truck starting to apply his brakes at a time when the vehicles were still 3 car lengths apart, and both vehicles were then traveling at a speed between 30 and 40 miles per hour; and plaintiff appeared to be not going to stop, but then he came to a sudden stop.

Defendants' argument under their Point I by which they challenge the submissibility of plaintiff's case is that plaintiff's evidence was that he was stopped for 5 seconds before his automobile was struck by the truck; that this time establishes that Lentz, at his speed of 30 miles per hour, was 225 feet to the rear of plaintiff's vehicle; that such distance (claimed to be conclusively established by plaintiff's testimony) would not support the charge that Lentz followed plaintiff's automobile more closely than was reasonably safe and prudent under the circumstances existing at the time; that plaintiff cannot take advantage of other evidnece that Lentz was following 3 car lengths or 45 to 50 feet because that evidence is at war with his own testimony that he was stopped for 5 seconds; and that therefore plaintiff has not established the proximate cause of the collision as being that which was submitted in his verdict directing Instruction No. 4.

The rule is, as defendants contend, that a plaintiff may not have the benefit of evidence which contradicts or is at war with his own theory of the case. See Fisher v. Gunn, Mo., 270 S.W.2d 869, 874[3-5]; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 604; and Elliott v. Wescoat, Mo., 336 S.W.2d 649, 651[1, 2]. No such situation, however, exists in this case. Plaintiff's testimony that he was stopped about 5 seconds is an estimate only. He is not bound by such estimate of time. McDonough v. St. Louis Public Service Company, Mo., 350 S.W.2d 739, 744. The jury could reject such estimate in view of what Lentz definitely testified to, and what Mrs. Faller corroborated, that he was 3 car lengths (45 to 50 feet) behind plaintiff at a speed of 30 miles per hour, it thus being inconceivable that Lentz at his speed would consume 5 seconds in traveling the distance, 75 feet, which separate Lentz from the point of impact at the time he saw plaintiff's lights go on. At 30 miles per hour, Lentz was traveling at 44 feet per second. His testimony was that plaintiff was stopped 2 or 3 seconds before the impact. It would take Lentz 80 to 85 feet to stop the truck at his speed under the circumstances; but only 75 feet separated him from the point of impact.

The duty upon drivers of following vehicles is imposed by our statute, Sec. 304.017, RSMo 1959, V.A.M.S., the relevant portion of which is: 'The driver of a vehicle other than those designated in section 304.044 shall not follow another vehicle more closely than is...