Turner v. Cowart

• Decision Date: 10 November 1969
• Docket Number: No. 54118,No. 1,54118,1
• Citation: Turner v. Cowart, 450 S.W.2d 441 (Mo. 1969)
• Parties: Ruth TURNER, Respondent, v. Bobby Lee COWART, Appellant
• Court: Missouri Supreme Court

Page 441

450 S.W.2d 441

Ruth TURNER, Respondent, v.Bobby Lee COWART, Appellant.

No. 54118.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1969.

Joslyn & Joslyn, L. D. Joslyn, T. B. Russell, Charleston, for respondent.

Harold D. Jones, Bock & Jones, New Madrid, for appellant(defendant)Bobby Lee Cowart.

PER CURIAM.

A trial jury returned a verdict in favor of Ruth Turner for $25,000 damages for personal injuries sustained in a collision between an automobile in which she was riding as a passenger and an automobile driven by the defendantBobby Lee Cowart.Cowart has appealed from the ensuing judgment.

A northbound passenger automobile driven by defendant on Highway 53 in Butler County collided with a southbound automobile in which plaintiff was a passenger.The roadway at this point was straight and fairly level.It was a 20-foot bituminous pavement.It was dark.The weather was clear and the roadway dry.The two vehicles collided in the southbound lane.There were skid marks starting in the northbound lane of traffic, extending across the center line into the southbound lane, where a quantity of debris and a deep gouge mark were found.After the collision the two automobiles were found parked side by side, ten feet apart, both headed west, one half of each vehicle on the shoulder and one half on the road.The front end of the southbound automobile was 'extremely' damaged.The right front of the nothbound automobile was 'extensively damaged.'

Plaintiff's testimony: She was a passenger in a car driven south at 'medium speed' by a man with whom she worked.He was killed in the collision.The car was traveling south, on its own right side of the road at all times, and never on its left side of the road.The only evidence on behalf of plaintiff relating to the facts of the collision was plaintiff's own testimony, as follows: 'Q.Justtell the jury when you were looking south just before this wreck occurred what you first saw if you saw a car.A.When I first seen this car-- Q.Where was it?A.It was meeting me on my side and a little before it got a certain distance it switched across back on the left side, on his side going north, and then it switched back in on my side and that is when it hit me.Q.Which side of the road did the cars come together on?A.It came together--it had went back on the north side first and then come back into me and hit me on the south side.* * * Q. Whose side of the road were (the cars) on after the wreck, your side or their side?A.On my side.'(Cross-examination): 'Now, when the accident occurred you say your car was in the southbound lane?A.Yes, sir.Q.Your right-hand lane and that both vehicles after the accident were turned pointed to the west on the edge of the highway there?A.Yes, sir.'

Defendant's testimony: The investigating state highway patrolman found 75 feet of 'heavily laid skid marks,' beginning at the edge of the northbound lane, on the east side of the highway, extending straight down the highway due north in the northbound traffic lane, then beginning to turn, crossing the center line, 'skidding across the road into the southbound traffic lane' and going on 96 feet farther, ending just north of one of the vehicles, in the southbound lane.There debris, dirt, oil, blood and broken glass and the deep gouge mark in the pavement were found, immediately north of the automobile in which plaintiff had been riding.No skid marks or tire marks were found north of the cars.

Defendant testified that he was heading north; that the other car was approaching him; that he paid no attention to it at first and until it 'got right up on' him; that it was in his lane; that he applied the brakes, locked all four wheels, and 'swerved' to the left to get out of 'his way'; that he was in the southbound lane when the collision occurred.He gave these answers to these questions: 'Q.Did your car go 171 feet down the highway skidding its tires?* * * A. I guess it did.Q.Did you kind of twist as you went along or-- A.No, sir.* * * Q.Were its brakes sliding * * *?A.Yes, sir.'John Blanchard, a passenger in defendant's car, testified that when the brakes were applied he looked up and the oncoming car was approaching in the northbound lane.

Plaintiff's main verdict-directing instruction follows:

'INSTRUCTIONNO. 2

'Your verdict must be for plaintiff if you believe:

'First, defendant drove on the wrong side of the road, and

'Second, defendant was thereby negligent, and,

'Third, as a direct result of such negligence plaintiff sustained damage.'

Appellant makes the point that the court erred in giving No. 2 because 'the undisputed physical facts and evidence' show that defendant's automobile skidded 75 feet in his own proper lane, and then crossed the center line and continued to skid another 96 feet in the southbound lane of traffic; that InstructionNo. 2 ignores the sudden emergency with which defendant claimed he was confronted, and ignores the skidding, requiring only a finding that defendant'drove' on the wrong side of the road although the 'undisputed evidence' is that he was skidding and not 'driving,' thus excluding the possibility of nonnegligent skidding as the proximate cause.Appellant cites Jokisch v. Life &Cas. Ins. Co. of Tenn., Mo.App., 424 S.W.2d 111, 117(9, 10);Davis v. Werremeyer, Mo.Sup., 377 S.W.2d 319, 323(2);Evans v. Colombo, Mo.Sup. (Banc), 319 S.W.2d 549, 551(1, 2);Wray v. King, Mo.App., 385 S.W.2d 831, 835(10);Painter v. Knaus Truck Lines, Inc., Mo.Sup., 375 S.W.2d 19, 25(6), to which may be added Strickland v. Barker, Mo.Sup., 436 S.W.2d 37, andMcIntyre v. Whited, Mo.Sup., 440 S.W.2d 449, 451(4).

The difficulty with appellant's point is that all of the evidence that defendant skidded across the center line onto the wrong side of the road came from defendant and his witnesses, and not from plaintiff.¹Where the evidence of skidding is confined to the defendant's case, and does not get into the record as a part of plaintiff's own case, it is not necessary for plaintiff's verdict-directing instruction to refer to the subject of skidding, because 'plaintiff is under no duty to hypothesize or otherwise notice defensive or exculpatory evidence introduced by his adversary * * *.'Wray v. King, supra, 385 S.W.2d, l.c. 833(3).'A plaintiff's verdict directing instruction properly hypothesizing his affirmative facts and theory of recovery is not erroneous in omitting reference to or ignoring the defendant's evidence which merely tends to disprove the plaintiff's affirmative allegations and evidence.Merrick v. Bridgeways, 362 Mo. 476, 241 S.W.2d 1015, 1021;Gately v. St. Louis-S.F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54, 63.Defendant did not plead skidding as a defense and did not offer an instruction submitting any theory of defense based on his evidence that his car slid or skidded.The evidence of skidding was offered under the general denial in defendant's answer.Assuming that such evidence of skidding was a defense, it would be in the nature of a sole cause situation which is not an affirmative defense.McVey v. St. Louis Public Service Co., supra, (Mo.Sup., 336 S.W.2d 524).In this type of situation, plaintiff is not required to hypothesize for recovery any facts which go beyond plaintiff's own theory of recovery.(citing cases) * * *.'Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 410(5).

In his Points and Authorities appellant sought to raise the question whether InstructionNo. 2 erroneously ignored defendant's 'duty' to avoid plaintiff's southbound vehicle in view of defendant's evidence that it was in defendant's northbound lane of traffic.This point was abandoned because it was not supported by the citation of authorities on the question and was not developed in the Argument portion of appellant's brief.Terry v. Boss Hotels, Inc., Mo.Sup., 376 S.W.2d 239, 248(21);Lansford v. Southwest Lime Co., Mo.Sup., 266 S.W.2d 564.

The next question is whether the court erred in permitting the impeachment of the witness John Blanchard, called as a witness by the defendant, by the use of a petition for damages filed by Blanchard against this same defendant in another lawsuit.Blanchard and his wife were passengers in defendant's automobile at the time of the collision with plaintiff's automobile.Mrs. Blanchard died as a result of injuries received in the collision.John Blanchard brought suit against defendant for damages arising out of her death, charging defendant with negligently failing to drive and operate his automobile upon the right half of the roadway, failing to keep a...