Wehrkamp v. Watkins Motor Lines, Inc.

• Decision Date: 13 January 1969
• Docket Number: No. 1,No. 53124,53124,1
• Citation: Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698 (Mo. 1969)
• Parties: Amanda WEHRKAMP, Appellant, v. WATKINS MOTOR LINES, INC., a Corporation and Hazel K. Judkins, Administratrix of the Estate of James Albert Judkins, Deceased, Respondents
• Court: Missouri Supreme Court

Page 698

436 S.W.2d 698

Amanda WEHRKAMP, Appellant, v. WATKINS MOTOR LINES, INC., a Corporation and Hazel K Judkins, Administratrix of the Estate of James Albert Judkins, Deceased, Respondents.

No. 53124.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1969.

Motion for Rehearing or to Transfer to Court En Ganc Denied

Feb. 10, 1969.

Strop, Watkins, Roberts & Hale, by Dan Hale, St. Joseph, for appellant.

Brown, Douglas & Brown, by R. A. Brown, Jr., St. Joseph, for respondent.

Shoemaker, Reital & Colley, by Robert D. Colley, St. Joseph, for respondent Judkins.

JOHN C. CASEY, Special Judge.

Plaintiff brought this action in the sum of $25,000 for the wrongful death of her minor son Raymond Hughes who died instantly as a result of injuries sustained in a highway collision between a northbound Chevrolet two door sedan in which Raymond was riding as a passenger and an eastbound tractor trailer truck owned and operated by defendant Watkins Motor Lines, Inc., hereinafter referred to as Watkins.

Plaintiff's petition stated certain acts of negligence in driving at a high, fast and dangerous rate of speed at the time, failure to keep a careful and proper lookout, and failure to yield the right of way on the part of James Albert Judkins alleged by plaintiff to have been the driver of the Chevrolet in which her minor son, Raymond Hughes, was riding as a passenger. Both Raymond Hughes and James Albert Judkins were killed instantly in the collision and this action was prosecuted against Hazel K. Judkins, Administratrix of the estate of James Albert Judkins, deceased. The petition also alleged certain acts of negligence on the part of defendant Watkins.

At the close of plaintiff's case the trial court sustained the motion of defendant Hazel Judkins, Administratrix, for a directed verdict '* * * on the grounds that there was no evidence of negligence as alleged in plaintiff's petition on the part of James Albert Judkins, deceased, and therefore, a directed verdict will be entered on behalf of that defendant.'

Defendant Watkins' motion for a directed verdict was overruled and said defendant thereafter adduced evidence. Plaintiff offered rebuttal testimony and the case was submitted to the jury against defendant Watkins. The jury returned its verdict in favor of defendant Watkins. After plaintiff's unavailing motion for a new trial as to each of the defendants was overruled, the case was duly appealed to this court which has jurisdiction because of the $25,000 amount in controversy.

Plaintiff's first point is that 'The Trial Court erred in sustaining a motion for directed verdict in favor of defendant Judkins at the close of the plaintiff's case in chief because a jury question had been made as to the identity of the driver of the Chevrolet and the carelessness of that driver, James A. Judkins.' We will adopt the general format used in plaintiff's brief by first stating the facts pertaining to the collision as shown by the evidence at the time the trial court sustained the Judkins' motion.

We deem it expedient at this point to restate the rule that in passing upon the propriety of the trial court's action in sustaining a motion for a directed verdict, the evidence must be considered in the light most favorable to the plaintiff and the defendant's evidence must be disregarded except insofar as it may tend to aid plaintiff's case, Moore v. Eden, Mo., 405 S.W.2d 910, 914, wherein this court also said:

"(T)he granting of a motion for directed verdict is a drastic action by a trial court, and that it should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ.' (Italics added.) Justice v. East St. Louis City Lines, Inc., Mo.Sup., 375 S.W.2d 150, 155.'

The collision occurred at about 8:20 p.m. on January 8, 1965, on a highway running north from St. Joseph, Missouri, toward Savannah, Missouri. That highway, then carrying both numbers U.S. 59 and U.S. 71, is referred to in the pleadings and in much of the evidence as Highway 71 and we will so refer to it in this opinion. The point of impact was near the intersection of Highway 71 with Interstate Highway 29, hereafter designated I--29, about three miles north of St. Joseph, Missouri. Highway 71 was a four lane concrete divided road running in a general north-south direction with two 13 foot lanes constituting a 26 foot concrete roadway for northbound traffic separated by a median strip from a similar 26 foot roadway for southbound traffic. At the time of the collision, I--29, then under construction, ran in a general northwestsoutheast direction and was proposed to run under the dual bridges of Highway 71, a short distance north of the point of collision. However, the pavement of I--29 was not completed north of the entrance and exit ramps to and from the northbound lane of Highway 71, so that for practical purposes I--29 terminated and was blockaded some 1,500 feet southeast of Highway 71, except for the I--29 exit and entrance ramps on the east side of U.S. 71.

Traffic moving northwest on I--29 exited up a ramp that ran to the north off of the northwest bound lanes of I--29 onto the northbound lane of Highway 71 north of the bridge. Near the junction of this ramp there was a temporary type cross-over which permitted vehicles going northwest off I--29 to proceed west crossing the median strip of U.S. 71 and turn left to travel south on the southbound dual lanes thereof. Similarly, south of the bridge carrying southbound traffic over the incomplete I--29 there was a 'south cross-over which permitted southbound Highway 71 traffic to turn left or east to cross the median strip and the northbound lanes of that highway and enter the ramp which ran to the eastbound lanes of I--29 then open to such traffic. The collision here involved occurred at the junction of that eastbound crossover with the northbound Highway 71 roadway.

For all purposes concerned in this case, this southern crossover was a one-way eastbound public roadway controlled by a stop sign which appeared from the photographs in evidence to be located about six feet west of the west edge of the northbound roadway. Thus motor vehicles going south on Highway 71 and turning east into such crossover were required to stop before crossing the northbound dual lanes of U.S. 71 and proceeding down the ramp to I--29.

There was substantial evidence that from the junction of that eastbound crossover with the northbound lanes of Highway 71, the topography of that highway was such that for at least three-tenths of a mile (1584 feet) south of such junction there was no valley, dip or anything else to obscure the vision of the crossover by a driver of a vehicle proceeding north on Highway 71. The atmospheric conditions on the night of the collision were such that the sky was cloudy and visibility clear. There was no evidence of any snow, rain, or dampness on the ground or vehicles.

As previously indicated both plaintiff's son and James A. Judkins were killed in the collision. Thomas D. Chastain, driver of the Watkins truck, did not testify. Plaintiff produced no eye witnesses to the collision.

Plaintiff's witness, R. D. Matthews, the investigating state highway patrol trooper, testified that while he was driving a patrol car south on U.S. 71, a few miles north of its junction with I--29, he received a call about this wreck and immediately proceeded to the scene.

The major part of the evidence in plaintiff's case relating to the facts of the collision came from the testimony of trooper Matthews, some twenty-seven photographs received in evidence and a rough sketch drawn by the trooper and frequently used in the course of his testimony and lodged with this court.

Since defendant Administratrix adopted a substantial portion of the 'Statement of Facts' set forth in plaintiff's brief, we believe it would aid in understanding the conceded facts to substitute Highway '71' for the number '59' where it appears and to quote the following from such adopted statement, as amended by using '71' as the designation for such highway.

'It was at this particular junction, that is with the southern crossover and the northbound lanes of 71 that this collision occurred (126).

'Prior to the collision the course of travel of the two vehicles was as to the Chevrolet, northbound on Highway 71 on the easternmost lane (138). The Watkins truck, southbound on 71, turning to the east onto the southern crossover (162).

'When the Trooper arrived at the scene about 8:52 p.m. on the evening of January 8, 1965 (131), he found a 1962 White tractor hooked to a semi-trailer extending across the northbound lanes of Highway 71 with the tractor facing in a northerly direction and the trailer in an east-west direction (132). Just immediately north and east of the front of the tractor was a '58 Chevrolet extensively damaged (132). The tractor was damaged on the right front corner. The damage included a portion of the front bumper and door on the right side of the tractor (132).

'The Trooper found Leonard Judkins on the ground at the north edge of the Chevrolet. He was alive and in need of medical attention (132); James A. Judkins and Raymond Hughes inside the Chevrolet, pinned in the wreckage and dead (133, 134).

'The Trooper ascertained who the driver of the Chevrolet was from what others told him and also from the position of the bodies in the car (135). The Chevrolet was partially upside down, facing west, and up against a large upright steel highway post, which was northeast of the intersection. The deceased, identified as Raymond Hughes, the plaintiff's decedent, was on the passenger side of the right front seat (137) and the deceased person, identified as James A. Judkins, was on the left side of the front seat closest to the steering wheel (135). Both of these bodies were still in the front seat (135). These two men were...