Trautmann v. Hamel, 49050

• Decision Date: 11 June 1962
• Docket Number: No. 49050,No. 1,49050,1
• Citation: 358 S.W.2d 803
• Parties: Mary E. TRAUTMANN, Appellant, v. Gail Rae HAMEL, Respondent
• Court: Missouri Supreme Court

Page 803

358 S.W.2d 803

Mary E. TRAUTMANN, Appellant, v. Gail Rae HAMEL, Respondent.

No. 49050.

Supreme Court of Missouri, Division No. 1.

June 11, 1962.

Motion for Rehearing or for Transfer to Court En Banc Denied

July 16, 1962.

Rufus Burrus, Independence, and Wesner & Wesner, Sedalia, for appellant.

Hale Houts, Alvin C. Randall, Houts, James, Randall, Hogsett & McCanse, Kansas City, for respondent.

HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $25,000 for the alleged wrongful death of her husband resulting from an automobile collision. A trial resulted in a verdict for defendant. Plaintiff has duly appealed and here contends that she is entitled to a new trial because of the alleged errors of the trial court (1) in sustaining defendant's objection to the admission in evidence of the deposition of Hazel Luetgen, and (2) in giving Instructions 3 and 4 at the request of defendant. While defendant contends on this appeal that there were no prejudicial trial errors, her first contention is that any such errors would be immaterial because plaintiff failed to make a submissible case on the evidence submitted, and would not have been aided by the deposition of Mrs. Luetgen.

The collision in question occurred in Sweet Springs, Missouri, at the intersection of east-west Highway 40 and north-south Highway 127. Plaintiff's decedent was driving a Chevrolet pickup truck northwardly on Highway 127 and at collision time was crossing Highway 40. Defendant was driving a Ford Convertible west on Highway 40. The left front of the Ford struck the right front of the pickup truck. The impact occurred in the north half of Highway 40. Plaintiff's case was submitted under the humanitarian doctrine and hypothesized defendant's negligence in the operation of her car (in addition to the usual requirements of such an instruction) in failing 'to have slackened its speed and changed its course in a manner so as to have avoided colliding with the pickup truck being operated by plaintiff's husband.'

The casualty in question occurred on October 3, 1958, at about 4 p. m. The day was clear and the highways dry. At the intersection Highway 40 was 24 feet wide and Highway 127 was 21 feet wide on the north side and 25 feet wide on the south side of Highway 40. There were stop signs for traffic entering the intersection from Highway 127. An overhead 'blinker' light flashed red for traffic on Highway 127 and amber for traffic on Highway 40. East of the intersection for traffic approaching on Highway 40 was a 'Slow' sign at 300 feet and a 'Junction Ahead' sign at about 1,000 feet. A driver approaching from the east could see the intersection for at least 300 feet. The highways at this point are more or less level, although the approach from the east on Highway 40 is very slightly downgrade.

In the opinion of the highway patrolman, the impact occurred near the north edge of Highway 40. However, two other witnesses gave testimony indicating that the front wheels of the truck were about two feet north of the north edge of the pavement. No witness heard defendant sound her horn or heard the squeal of her tires nor saw any tire marks on the pavement. The patrolman stated that the truck was 16 or 17 feet long. After the collision the truck was on the north half of Highway 40, but defendant's car continued in a northwesterly direction for 150 feet before coming to rest on a vacant lot. Plaintiff's husband was badly injured in the collision and died five months later without having regained consciousness.

William Driver testified that he operated the service station on the southwest corner of the intersection; that he did not see either car before the collision but was working about 70 feet away when he heard 'an explosion'; that he looked up and saw Mr. Trautmann come out of the truck 'like he had been shot out of a cannon.' The witness immediately went to the scene of the collision and, in his testimony, described the location of the vehicles after the collision and other facts which have been heretofore stated in a general way.

Glen LaRue was also at the Driver Service Station. He testified that Mr. Trautmann stopped his truck at the service station and talked with him for a time before proceeding across the highway; that decedent's appearance was normal and that he appeared to be sober. This witness did not actually see the collision and the remainder of his testimony is substantially the same as that of Mr. Driver.

An eyewitness to the collision was Earl Fain who was sitting in his car which was parked facing north on the west side of the driveway going into Dooley's Cafe (north of Highway 40) about 100 feet east of the east edge of Highway 127. He testified that he saw Mr. Trautmann stop at the service station and then move his truck up to Highway 40 and stop; that he then put his truck in gear, 'he didn't launch out there, he just let it barely start off'; that he then saw defendant's convertible approaching the intersection about 50 feet east of his car; he then looked toward the Trautmann truck and saw the two vehicles collide; that in crossing the intersection Mr. Trautmann was in the 'center land' and 'was not driving fast.' Upon cross-examination admissions were obtained from this witness which tended to weaken or impeach his testimony but since, in determining whether plaintiff made a submissible case we view the evidence in the light most favorable to her (and the matters of impeachment were not such as would wholly destroy the testimony), we will not extend this opinion by including those matters of impeachment.

Defendant did not testify but plaintiff read portions of her deposition as admissions. In such testimony defendant stated that she was driving from Columbia to Kansas City; that as she entered Sweet Springs she was traveling about 45 m. p. h., but at the time of the impact she guessed she 'was going 35 to 40 m. p. h.'; that the brakes and steering mechanism on her car were in good condition; that from the time she became aware that the truck was crossing the highway it was a couple of seconds before the impact occurred; that she saw the truck when the front wheels went onto the highway; that the truck was moving 'slow but even'; she didn't believe it was increasing speed; that when whe saw the truck coming across she put her foot on the brake immediately and pulled to the right of the road so that her right front wheel was on the...