Thayer v. Sommer, 48961

• Decision Date: 09 April 1962
• Docket Number: No. 1,No. 48961,48961,1
• Citation: 356 S.W.2d 72
• Parties: Zelma THAYER and Elza Thayer, Plaintiffs-Appellants, v. Ralph C. SOMMER, Defendant-Respondent
• Court: Missouri Supreme Court

Page 72

356 S.W.2d 72

Zelma THAYER and Elza Thayer, Plaintiffs-Appellants, v. Ralph C. SOMMER, Defendant-Respondent.

No. 48961.

Supreme Court of Missouri, Division No. 1.

April 9, 1962.

Thomas R. Dowd, St. Louis, for appellants.

Dearing, Richeson & Weier, by H. L. C. Weier, Hillsboro, for respondent.

DALTON, Presiding Judge.

Action for $15,000 damages for personal injuries alleged to have been sustained by plaintiff Zelma Thayer when the automobile, which she was operating, stalled in the northbound lane of U. S. Highway No. 61, as she was crossing to enter the southbound lane, and it was struck by defendant's northbound automobile. Zelma's husband Elza, who owned the car, joined in the action, in a second count, seeking to recover $3,000 for damage to his automobile, medical expenses incurred by reason of his wife's injuries and for loss of consortium.

The cause was submitted under the humanitarian doctrine on defendant's negligent failure to slacken speed, stop or swerve and thereby avoid striking the stalled automobile after imminent peril arose. Verdict and judgment were for defendant. Plaintiffs have appealed and here complain of the giving of the defendant's Instructions No. 2 and 4 and the exclusion of certain evidence.

Plaintiffs' evidence tended to show that the collision in question occurred in front of the Florian Zoellner residence, near where Zoellner's driveway enters the east side of U. S. Highway 61 in Perry County, Missouri. The driveway enters about 1500 feet north of what is referred to as Sunset Inn, north of Perryville, Missouri. The highway is straight and level and paved with concrete twenty feet in width, with the shoulders eight to ten feet in width on either side. There is no obstruction to view for one-half mile to the north or for some 2400 feet to the south, to the top of a hill beyond Sunset Inn. About 450 to 500 feet south of the place of collision there is a slight rise with a dip beyond so that only the upper portion of an approaching automobile beyond the rise would be in full view.

Plaintiffs resided in Jennings, Missouri, and on July 29, 1955, plaintiff Zelma, accompanied by her first cousin, Mrs. Brinkmeier, was proceeding from Jennings to Perryville to see Zelma's mother, who was hospitalized there. Before they reached Perryville they stopped at the mentioned Zoellner home on the east side of Highway 61 for a brief conference with Mr. Zoellner before proceeding further. It was then 8:30 to 8:45 p. m. (C.S.T.). The weather was clear, the pavement dry and there was no fog or other impediment to visibility.

When plaintiff left Zoellner's it was dusk or dark. Plaintiff had turned on the headlights, of her car at Ste. Genevieve, before reaching the Zoellner home. The automobile she was driving was a 1948 manualshift Chevrolet. As she left the Zoellner drive and reached the highway pavement, she stopped the car and looked both ways, but saw no automobile lights in either direction. She then shifted to low and entered on the pavement. She was in the act of turning south and across to the west side of the highway when her motor 'died' and the car stopped. At that time the right front wheel was across the center line of the highway and the left rear portion of the automobile was still on the east shoulder. The car stood at a 45-degree angle, apparently facing southwest. It fully occupied the northbound traffic lane; however, there was nothing in front of it and nothing behind and no southbound traffic was approaching.

Zelma testified: 'After I had pulled out there and my car died I saw these headlights from the south.' They were on the other side of Sunset Inn. 'I tried to start my motor and it wouldn't start and I kept watching the car, the lights, and I was out there in the highway trying to start the car and this car kept coming my way.' She tried to start it a second time and saw that the approaching car was getting closer, so she started to blow the horn. She was never able to get the car started although she made two or three efforts, with some interval or moments of time between each effort. To attract attention, she had started blowing the horn when the approaching automobile was 'down by that white gate, which I imagine is about 500 feet or a little closer to the Zoellner driveway. * * * I was sitting there and trying to start the car and all the time watching these lights and they were getting closer each time I looked and I was helpless. I couldn't get the car started.' Even then no cars were approaching from the north. The horn continued to blow from the time the approaching car reached the rise in the highway until the collision occurred and the headlights of the car remained on. Plaintiff Zelma was sure that her car was stalled on the highway for more than a minute, a minute or two, and the mentioned rise had not obstructed her view of the headlights of the approaching car.

Mrs. Brinkmeier heard the squealing of the brakes of the approaching car when it was some 75 feet away and it skidded down directly into the automobile in which the ladies were seated. The collision swung the front of the plaintiffs' car around at a 45-degree angle, so that it faced northwest, with its headlights still burning after the collision. Defendant's automobile stopped in its own traffic lane against the stalled automobile.

Mrs. Brinkmeier thought defendant's car approached at 55 to 60 miles per hour, and so fast that defendant couldn't stop. The front portion of the defendant's car struck into the left front fender and door of the stalled automobile.

Patrolman John H. Little arrived about twenty minutes after the collision and observed 69 feet of skid marks on the pavement, extending that distance south from the damaged vehicles. These skid marks were paralled to the east side of the pavement and the nearest skid mark was about three and a half feet from the east edge of the pavement. The skid marks did not swerve either way, but extended in a straight line. He asked plaintiff Zelma what happened and her answer was: 'All I can say is I pulled out there and I was making a left to go to Perryville. I'm not going to say how fast he was going, but he was going a pretty good clip. I blowed my horn when I saw him coming but he didn't stop.' She further indicated that she was not hurt in the collision. He asked defendant Sommer what had happened and he answered: 'I was just riding along and all of a sudden Babs said 'look out' and that's the first time that I saw them. I couldn't go either way and that't just about it. They just pulled out in front of me and I couldn't stop.' ('Babs' was Barbara Hereforth, now Mrs. Walter.)

On cross-examination plaintiff Zelma said she remembered making a statement that, 'All I can say is I pulled out there and I was making a left to go to Perryville * * *.' She didn't tell the patrolman that her 'motor had died,' because her brother-in-law had said to her: 'Don't say your car was stalled, not on the highway,' and she thought he was trying to help her and she felt he knew more about the law than she did. She further admitted having made and signed a written statement, as follows: 'I drove to the highway and stopped. I was in low gear when I started up. I saw Ralph Sommers to my left but I thought sure I had plenty of time and I went on out onto the highway.' She also said: 'I didn't put in that (statement) my motor was stalled.' She didn't read the statement before signing it, although above her signature the document read: 'I have read the above and find it true to the best of my knowledge and belief.' The written document contained a further statement: 'When I saw he was coming faster than I expected I moved my arm.' She further admitted that she had said, in answer to a question as to how long she sat on the highway with her engine 'dead' before the collision occurred, 'Well, I guess a couple of seconds.' She then testified that she was wrong when she made that answer because she 'meant a couple of minutes. A minute or so.' In view of the issues presented on appeal we omit the testimony concerning the extent of plaintiff's injuries.

Plaintiff Elza testified that he owned the Chevrolet in question which he had given his wife permission to drive. He said the car had a value of $450 before the collision and its value after the collision was $65. We need not review his further testimony. The wreck occurred on July 29, 1955. The wife's suit was instituted on June 28, 1960, and her husband joined in her suit, as an additional plaintiff on October 13, 1960, when (in count two) he sought recovery for damage to the car and other damages, as mentioned. Defendant, by answer, pleaded as a defense to count two of the amended petition the statute of limitation, to wit: Sections 516.100 and 516.120 RSMo 1959, V.A.M.S., and, as respondent here, insists that plaintiff Elza made no case for the jury.

Defendant's evidence tended to show that, on the date in question, he was unmarried and was driving north on U. S. Highway 61 from Perryville, with one Barbara Hereforth, to attend a drive-in theater located north of the Zoellner farm; that he was driving at 40 to 45 miles per hour; that he saw two headlights coming toward him from the north; that he could not say whether there was one or two lights but that he did see headlights ahead; that he was driving in his right-hand, northbound lane when he first saw the Thayer car ahead across his traffic lane; that he could not then judge its distance from him; that he immediately applied his brakes and slowed his car, but, nevertheless, collied with the side of the Thayer automobile. He further testified that his automobile was in good working order, as far as he knew, with good brakes, tires and headlights; that there was no obstruction to vision through his windshield; that he had only seen lights, apparently approaching, before seeing the Thayer car; that he didn't know how long it had been in his traffic...