Vaeth v. Gegg

• Decision Date: 20 November 1972
• Docket Number: No. 1,No. 55884,55884,1
• Citation: 486 S.W.2d 625
• Parties: Gary W. VAETH, a minor, by his next friend, Anthony Vaeth, Plaintiff-Appellant, v. Wilfred GEGG, Defendant-Respondent
• Court: Missouri Supreme Court

Page 625

486 S.W.2d 625

Gary W. VAETH, a minor, by his next friend, Anthony VaethPlaintiff-Appellant, v.Wilfred GEGG, Defendant-Respondent.

No. 55884.

Supreme Court of Missouri, Division No. 1.

Nov. 20, 1972.

Roberts & Roberts, Clinton B. Roberts, Farmington, for appellant, Gary M. Vaeth.

Samuel Richeson, Nicholas G. Gasaway, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for respondent, Wilford Gegg.

BRUCE NORMILE, Special Judge.

Defendant-respondent obtained a judgment upon his cross claim against plaintiff-appellant in the amount of $50,450 for personal injuries and property damage.

Plaintiff-appellant raises two points on this appeal.The first asserts that the submission of appellant's excessive speed as an item of negligence was not supported by the evidence.The second point relates to various trial errors claimed by the appellant and detailed hereinafter.

SUBMISSION OF EXCESSIVE SPEED:

The head-on collision from which this suit arose occurred on a winding hilly blacktop country road in Ste. Genevieve County, Missouri.The road was 18 feet wide and did not have a center line or shoulders.Appellant did not recall the collision nor remember seeing respondent's car.There were no other witnesses to the collision.Respondent testified that he was proceeding north in his station wagon at a speed of between 35 and 40 m.p.h. when he saw appellant's car 'for a split second or so' as it was going down in the main part of a dip coming off the hill immediately beyond the hill before respondent.Respondent testified that the appellant's car was right in the middle of the highway and going between 70 and 70 m.p.h. Respondent testified that when appellant's car came out of the dip it was about 70 feet north of respondent.At this time respondent was on 'my outer edge of the road.'Respondent also stated that he then tried to move to his side but there wasn't time because appellant was 'coming so fast.'After the accident both drivers were pinned inside their cars and required assistance to be extracted from them.The vehicles were jammed together so badly that they had to be pulled apart by trucks.There was also testimony that the distance from the point where the cars were stuck together to the top of the first hill rise to the north was a distance of 67 feet.

The above evidence would be sufficient to allow the submission of the issue of excessive speed to the jury, if it could all be considered.Estimates of speed as well as damage to the automobiles, the force of the impact and other physical facts, are proper for the jury to consider and are sufficient to submit the issue of excessive speed.Hamilton v. Slover Mo., 440 S.W.2d 947, 956.Excessive speed is a relative matter and whether speed is excessive ordinarily depends on the condition of the highway and the surrounding circumstances.Wolfe v. Harms, Mo., 413 S.W.2d 204, 210.Even the brevity of respondent's observation of appellant's car prior to the collision would not destroy the credibility of his evidence as to appellant's speed but would only go to its weight and value.Shepard v. Harris, Mo.,329 S.W.2d 1, 11;Johnson v. Cox, Mo., 262 S.W.2d 13, 15;Schneider v. Dannegger, Mo.App., 435 S.W.2d 413, 415;Zeigenbein v. Thornsberry, Mo., 401 S.W.2d 389.

It is critical to the above submission, however, that the respondent's estimate of appellant's speed be considered.The evidence in this case as to impact, auto damage, and road conditions does not suggest which vehicle might have been traveling at an excessive speed.A finding of excessive speed based on the evidence alone might have to be the result of reliance on mere speculation, conjecture, or surmise, which would not amount to the substantial testimony required for submission.Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356.

However, it is appellant's contention that respondent may not rely upon his estimate of appellant's excessive speed because respondent is bound by other contradictory testimony which makes his testimony as to speed physically impossible and in conflict with well-established physical facts so that his testimony in this respect does not constitute evidence and must be disregarded.Bauer v. Wood, supra.

Appellant constructs the contradiction in respondent's testimony in the following manner: On deposition, respondent stated that he first saw appellant when he came out of the dip 70 feet north of him.Appellant takes respondent's testimony at trial to be that the appellant's car was 70 feet away when first sighted as it went into the dip.Respondent also testified that he steered his car a foot or so the right before the collision and that he applied his brakes and slowed his car.Appellant then calculates appellant's speed of 70 m.p.h. and respondent's speed of 35 m.p.h. to make a combined speed of 153.9 feet per second.In the three-fourths second reaction time required for respondent to act after he first saw appellant 70 feet away, the two vehicles would travel a total distance in excess of 114 feet.Appellant then submits that the accident would thus have occurred before respondent could possibly habe begun to act to steer the car to the right or to apply his brakes and slow his car as he testified that he did.Appellant then concludes that if respondent did turn several feet to the right and brake and slow his car, his testimony as to speed becomes impossible and contrary to physical facts.

In making this contention, appellant recognizes the qualification of the 'physical facts' rule that a party is not conclusively bound by his own or by his witnesses' testimony of time, speed, or distance.McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739;Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795;Meier v. Moreland, Mo., 406 S.W.2d 97, 101;Vaccaro v. Moss., Mo.App., 410 S.W.2d 329;Schneider v. Dannegger, Mo.App., 435 S.W.2d 413, 416.

However, appellant submits that if only one party testifies as to speed and distance, he will be bound by his estimates and they will act as judicial admissions against him, cited Roux v. Pettus, Mo.App., 293 S.W.2d 144, 146(3).Actually, the judicial admission made in Roux was not an admission concerning speed or distance, although there was testimony by the plaintiff there as to both.Rather, the judicial admission plaintiff made in Roux was that he did not see the defendant's car until immediately prior to the collision.However, all the uncontradicted physical facts showed that the defendant's car was plainly visible.Among the physical facts which were established was that there was a totally unobstructed view of 320 feet in which plaintiff could have seen the defendant.Roux is distinguished in this respect by Baldwin v. Atchison, Topeka & Santa Fe Railway Co., Mo., 425 S.W.2d 905, 911, andHaymes v. Swan, Mo.App., 413 S.W.2d 319, 324.

In examining appellant's contention, we must recognize the courts are reluctant to say that declared facts are manifestly impossible or untrue and will not indulge in arbitrary declarations of physical laws and facts, except when they appear to be so clear and irrefutable that no room is left for entertainment by reasonable minds of any other conclusion.Garrison v. Ryno, Mo., 328 S.W.2d 557;DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628;Reed v. Shelly, Mo.App., 378 S.W.2d 291.In order for the contradictions or inconsistencies to preclude recovery as a matter of law, they must be diametrically opposed to one another with respect to some vital question in the case and must be so contradictory and without explanation as to preclude reliance thereon.Atley v. Williams, Mo.App., 472 S.W.2d 867, 869(1);Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361.The court must consider the testimony as a whole and it is required that the testimony relied on as admissions be clear, unqualified, and not the result of mistake, oversight, misunderstanding, or lack of definite recollection.Johnson v. Bush, Mo.App., 418 S.W.2d 601.It has been held that the 'physical facts' rule has no application where variable or doubtful estimates are made with respect to the facts.Anderson v. Orscheln Brothers Truck Lines, Inc., Mo., 393 S.W.2d 452, 460.Parties are not held as closely to their estimates of speed, distance, or time in emergency situations.Wood v. Ezell, Mo.App., 342 S.W.2d 503.Likewise , the jury has the right to believe a plaintiff is 'wrong' or 'confused' where there is inconsistent testimony.Haymes v. Swan, Mo.App., 413 S.W.2d 319, 325.And jury can rely upon other more favorable testimony not at war with plaintiff's theory of the case.Baldwin v. Atchison, Topeka & Santa Fe By. Co., Mo., 425 S.W.2d 905, 911.

In determining whether respondent made a case on excessive speed, we must consider all the evidence in a light most favorable to respondent and take his evidence as true if not entirely unreasonable or opposed to physical law, and must give him the benefit of all reasonable inferences arising from the evidence and must reject all unfavorable inferences.DeLay v. Ward, supra.In doing so, the jury could have found that respondent made his movement to the right and braked and slowed after he first saw appellant'a split second or so' before appellant reappeared 70 feet away.The additional time elapsed and distance covered by both cars in the additional 'split second or so' cannot be exactly computed, but it obviously added to respondent's ability to take the very limited evasive action to which he testified.It aldo substantially removes the contradiction that appellant urges.To the extent there were any inconsistencies in respondent's testimony by his estimates of speed or distances in this emergency situation, they were for the jury.The conflicts in testimony urged by appellant were not in fact the conflict of estimates with 'well-established physical facts' but rather only the conflict of one estimate with another.

Respondent is not bound by such...