Toburen v. Carter

• Decision Date: 13 December 1954
• Docket Number: No. 1,No. 44034,44034,1
• Citation: 273 S.W.2d 161
• Parties: Elsa TOBUREN, Appellant, v. Robert L. CARTER, Respondent
• Court: Missouri Supreme Court

Page 161

273 S.W.2d 161

Elsa TOBUREN, Appellant, v. Robert L. CARTER, Respondent.

No. 44034.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1954.

Dwight Roberts and Walter A. Raymond, Kansas City, for appellant.

Roy F. Carter and Sprinkle, Knowles & Carter, Kansas City, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff sued to recover damages in the sum of $85,000 for personal injuries sustained on the night of July 30, 1950, when an automobile owned and operated by her husband southward on Main Street in Kansas City, Missouri, in which she was riding as a guest, collided with the rear end of an automobile operated by defendant southward on said street. The petition pleaded that defendant negligently operated his automobile without lights and that he negligently and suddenly stopped the same without warning. Defendant denied the negligence charged and pleaded that plaintiff's husband then and there drove his automobile at a high and dangerous rate of speed and that plaintiff was contributorily negligent in failing to timely warn her husband of the danger of collision and that the negligence of plaintiff's husband was the sole cause of the collision.

The jury returned a verdict for defendant and judgment was accordingly entered. Plaintiff appealed, assigning error in certain instructions given in behalf of defendant.

Plaintiff's evidence was that about midnight, on said date, plaintiff, her husband and their two children, rode southward on Main Street at a speed of about twenty miles per hour in an automobile owned and operated by her husband. Plaintiff sat to the right of her husband on the front seat. The children were in the rear seat. Plaintiff and her husband intended to make a left turn at 38th Street and, in order to do so, the husband moved his car from the right southbound lane to the center southbound lane at either Armour (35th) or 36th Street. There were cars proceeding southward to the right of them, to the rear of them, and there had been cars in front of them. Cars were also coming from the opposite direction, which tended to blind them. Main Street was lighted by overhanging street lights, so that if one's vision was unobstructed by oncoming automobile lights, one could see 'pretty far' southward.

Plaintiff had seen a car in front of them as they moved southward, which may have been the defendant's car, but it first came to her attention when it was stopping, drawing to a stop, about midway between 36th and 37th Streets. It was then about ten feet in front of them. It loomed up 'black' in front of them; there were no lights on its rear. Plaintiff then and there told her husband to 'watch that'. He said, 'I see it.' She 'felt' the brakes applied and her husband attempted to swing to the left, but oncoming traffic prevented clearance and their car collided with the rear of defendant's car. Defendant gave no arm signal of any kind. Plaintiff was injured by the force of the collision. She did not suppose she had been looking forward all the time after passing 36th Street. Probably she would have seen the defendant's car sooner had she been looking forward. She is an experienced driver and 'usually watches' when she rides with some one else. Plaintiff testified that her husband was a good driver and that she had full confidence in him, but that testimony was stricken as not responsive to the question propounded.

Defendant's evidence was that he was operating his car southward in the inside southbound lane on Main Street behind some other cars. The second car ahead signalled a left turn to go into a 'drivein' in the middle of the block and stopped for traffic to clear. The car immediately ahead of defendant signalled and stopped and defendant put his left arm straight out the window, moved it up and down, and came to a stop. At that time no car was in sight to the rear of his car. His car had been stopped a minute or a minute and a half to two minutes when the car in which plaintiff was riding ran into the back of it. There was a double row of cars coming north and there were cars in the right hand lane going south at the time. The traffic was heavy.

Defendant also introduced in evidence a photograph of a night view of the portions of Main Street extending north and south of the point of collision. It shows an unlighted automobile that has been placed at the approximate point and position of defendant's car at the time of the collision. Defendant's evidence was that the camera was placed about 125 feet north of the automobile. The rear of the automobile placed as aforesaid is clearly revealed in the picture. The picture, however, further reveals that when it was taken there were no automobiles approaching from the south, as the evidence of both parties showed to be the situation at the time of the collision. The picture was a two or three second exposure.

Plaintiff contends that Instruction V, given at the request of defendant, was prejudicially erroneous for several reasons. Said instruction hypothesized a finding 'that plaintiff rode in her husband's automobile south on Main Street and from 36th Street up to the point of accident that the automobile in which the plaintiff was seated was travelling about ten feet behind defendant's automobile, * * *, and * * * that the plaintiff could have seen and known of the position of the automobile in which she was seated as aforesaid and thereafter could have warned her husband to slow up his automobile and increase the distance between the two cars so that if the car ahead stopped that there would be sufficient distance for plaintiff's husband to stop his automobile, * * *, and thereby a collision could have been avoided, * * *, and * * * that plaintiff negligently failed so to do but permitted her husband to drive his automobile without warning in the manner aforesaid up until the defendant's automobile was stopped, and * * * that plaintiff's conduct as aforesaid constituted negligence and that negligence, if any, directly contributed to cause the collision * * *, then * * * plaintiff cannot recover * * *.'

Plaintiff insists first that there is no evidence upon which to base a finding of plaintiff's contributory negligence. In Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 24, we accepted as correct and applicable to a guest passenger the rule expounded in Berry on the Law of Automobiles (6th Ed.) Vol. I, Sec. 665, as follows: "When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to conduct or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury,...