Estes v. Estes

• Citation: 127 S.W.2d 78
• Decision Date: 03 April 1939
• Docket Number: No. 19485.,19485.
• Parties: ESTES v. ESTES et al.
• Court: Missouri Court of Appeals

127 S.W.2d 78

ESTES v. ESTES et al.

No. 19485.

Kansas City Court of Appeals. Missouri.

April 3, 1939.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Action by Francis Estes, by next friend, Carl Estes, against Leo Estes and others, for injuries sustained in an automobile collision. Verdict and judgment in favor of the plaintiff for $7,000 was reduced by remittitur to $4,000, and the defendant Leo Estes appeals.

Reversed and remanded.

Brown, Douglas & Brown, of St. Joseph, for appellant.

Strop & Strop, of St. Joseph, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $7,000, which was reduced by remittitur to $4,000, and the defendant Leo Estes has appealed.

Plaintiff was injured by reason of a head-on collision of two motor cars, in one of which he was riding. The collision occurred on Belt Highway near the outskirts of St. Joseph. Belt Highway extends a distance of 5.1 miles between the northern and the southern limits of United States Highways numbered 71 and 169 in Buchanan County. It runs in a generally northerly and southerly direction. It consists of two 10-foot concrete slabs, between which there is a pavement 20 feet in width termed "blacktop". A single white line marks the center of the 40-foot pavement. Mitchell Avenue extends in a easterly and westerly direction and intersects Belt Highway at right angles. Commencing immediately south of the intersection of the Highway and Mitchell Avenue, the former rises slightly and gently to a crest situated from 300 to 500 feet south of Mitchell Avenue. At the top of the rise there is a slight, very easy, curve to the southeast.

Plaintiff and appellant are brothers. The car in which they were riding at the time of the collision belonged to their father. The collision occurred shortly after midnight. Plaintiff, appellant and Miss Helen Bingham had been to a public dance some distance east of Belt Highway and were returning home. Appellant sat in the front seat, alone, driving the car, and plaintiff and Miss Bingham were seated in the rear seat, talking.

After leaving the dance appellant drove the car west on Highway No. 36 to Belt Highway, thence south on Belt Highway a distance of 2½ miles, to the place of the collision, at a speed of 30 miles per hour. The car collided with another being driven by defendant Homer Ivan Martin, who, with a party of friends, was traveling in a northerly direction on Belt Highway. Martin had been racing with another automobile and the two cars passed a third car (Martin's car being to the west of the other cars) about 200 feet south of the point of the collision, Martin driving to the west of the center line of the highway at a rate of speed from 40 to 50 miles per hour. At the time of the collision the east side of the Estes car was 3 or 4 feet west of the center line of the highway. The Martin car was also west of the center line of the highway.

Appellant, shortly after the collision, stated to one of plaintiff's witnesses that he was passing, or had passed, a car just before the accident occurred. Plaintiff testified that defendant drove upon the west side of the highway at a rate of speed of about 30 miles per hour. There were signs along the highway warning drivers that they were approaching a congested district and that they should slow down to a speed of 30 to 35 miles per hour. Neither plaintiff nor Miss Bingham, who were talking, saw the cars collide, and did not know, except by the position of the cars after the collision, on which side of the center line of the highway the collision occurred; nor did they know whether the appellant had passed a car (going in the same direction) shortly before the collision. Neither plaintiff nor Miss Bingham saw the Martin car before the collision. The weather was clear at the time.

The collision occurred about 40 or 50 feet south of the top of the small slope on Belt Highway mentioned above. Plaintiff's witness, Butler, whose car was passed by the two racing cars, stated that he saw but one southbound car, to-wit, the Estes car and that this car was not passing any other car; that he saw no headlights behind the southbound Estes car. The defendant Martin corroborated this statement of the witness, Butler.

The petition alleges general negligence. The answer of appellant consists of a general denial. At the close of plaintiff's evidence appellant offered an instruction in the nature of a demurrer to the evidence. This was overruled and he offered no evidence.

The case was submitted to the jury by the plaintiff on an res ipsa loquitur instruction. Appellant complains of the giving of this instruction, contending that the facts disclosed by the evidence do not disclose a situation such as to justify a submission on such a theory. We think that this contention of appellant is well taken. In State ex rel. v. Trimble, 322 Mo. 318, 18 S.W.2d 4, loc. cit. 5, the Supreme Court stated:

"The evidence for plaintiff tended to show the collision resulted from negligence of either the defendant Brancato or the defendant Interstate Stage Lines Company. We ruled in the McGrath case [McGrath v. St. Louis T. Co.] (loc. cit. 104 of 197 Mo. [97] ) as follows: `Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident, and to purge himself of the imputed or inferential negligence.'

"In the Hartman case [Hartman v. Chicago, B. & Q. R. Co.], [261 Mo. 279, 168 S.W. 1143], we followed the McGrath case on the question.

"A standard text states the rule, as follows: `The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. If from the nature of the event causing the injury an inquiry naturally arises which one of two or more persons, acting independently, is responsible; or, if it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms.' 1 Sherman & Redfield on the Law of Negligence par. 58b (6d) p. 131.

"Respondents direct attention to Price v. Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am.St.Rep. 588, and Stauffer v. R. R., 243 Mo. 305, 147 S.W. 1032. Those are passenger and carrier cases. The carriers contracted to safely carry the plaintiffs, and the collisions and injuries made available to them a presumption of negligence. In the instant case defendant, Brancato, was not a common carrier. The plaintiff was only a guest. For that reason she is not aided by a presumption of negligence. The collision in the instant case may bespeak negligence, but it does not locate the negligence."

"Where there are two or more persons or causes which might have produced the injury, some, but not all, of which were under the control of defendant or for which he was legally responsible, plaintiff, in order to invoke the...