Welch v. Hyatt
| Decision Date | 13 March 1979 |
| Docket Number | No. 60727,60727 |
| Citation | 578 S.W.2d 905 |
| Parties | James Edward WELCH and Charlotte A. Welch, Plaintiffs-Appellants, v. Myron Edward HYATT, Defendant-Respondent. |
| Court | Missouri Supreme Court |
W. Raleigh Gough, Butler, George T. Sweitzer, Jr., Harrisonville, Edward J. Murphy, Butler, for plaintiffs-appellants.
Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for defendant-respondent.
This is an appeal by the plaintiffs-appellants James and Charlotte Welch from a judgment entered on April 3, 1975, upon a jury verdict by the circuit court of Cass County in favor of the defendant-respondent, Myron Edward Hyatt on the plaintiffs' claim for damages for personal injuries and loss of services arising out of an automobile collision. The Court of Appeals, Western District affirmed the judgment. Upon motion 1 filed by plaintiffs we granted transfer to this court and now decide the case as an original appeal, under the provisions of Art. V, § 10, Mo.Const. We adopt portions of the court of appeals opinion without quotation marks.
This cause arises from an automobile collision between a 1949 Chevrolet "pickup" truck driven by plaintiff James Welch and a 1969 Chevrolet driven by Myron Hyatt. Trial began April 1, 1975. The collision occurred on October 30, 1971 on Highway M-2 in Cass County .6 of a mile east of Route J and six to eight miles west of Harrisonville, Mo. The collision occurred when the eastbound Welch pickup truck was struck from the rear by the Hyatt Chevrolet. At the scene of the collision Highway M-2 runs "in a general easterly and westerly direction" or "basically east and west" and at the scene the highway is fairly level and straight but there is a curve in the road approximately 600 feet west of the point of collision. The highway is 21 feet wide with 12 foot shoulders. At the scene of the collision a "farm driveway" proceeds north from the highway to a trailer house on the north side of the highway where some junk pickup trucks rested. The trailer house was occupied by "Jack" who was known to Mr. Welch. The collision occurred near the driveway.
The essential question is whether at the time of the collision, Welch was in the process of a left-hand turn onto the driveway and, if so, whether his failure to signal that movement was contributorily negligent.
While the evidence is contradictory, the jury could reasonably find the following.
On October 30, 1971, Mr. Welch was driving an old one-half ton pickup truck which he had borrowed from his brother two or three weeks before. "[T]he body wasn't the best in the world." The truck had "two cracked door glasses." "They were busted up pretty bad." There were no electric signals on the truck and only one brake light (the right) operated. On that date shortly before noon, Welch decided to drive to Bob's Salvage Yard near Harrisonville to "try to replace [the] two door glasses." In the truck with him were his two-year old son and his fifteen-year old brother-in-law. Mr. Welch testified that he was driving on the side of the road in a straight line and "never turned to the left or to the right" nor did he increase or decrease his speed.
"Well, I was driving down the east toward Harrisonville on Number 2, on my side of the road, and my little boy was standing up so my brother-in-law reached to get him, you know, took him back around and set him on his lap and driving along there and all of a sudden I just got rammed."
He admitted that the collision occurred near the farm driveway and that he knew that "Jack" lived there and had some junk vehicles, that he had been to the trailer house before but denied that he was going to the trailer house to see him. Hence, he indicated he had no intention to turn "Well, where you going to go to that trailer house to see that man [Jack] about some parts for your pickup at the time of the accident? . . . No, I wasn't." Welch testified that at the time he was struck his truck was "probably about a foot from the center line or so" on the south side of the highway. After the accident, Welch, while not unconscious, could not remember anything until he was in the doctor's office some time later. 2 He received injuries which are not the subject of dispute in this proceeding.
The defendant-Hyatt's version of the collision was in marked contrast to that of Mr. Welch. Hyatt was driving the Chevrolet and his wife Marie was sitting in the passenger seat reading a book. It was his testimony that he was attempting to go to a farm "[t]o look for a bull." He proceeded west on highway 2, went past the farm, asked directions, turned around and proceeded east. He was driving about 55-60 m. p. h. After he made the curve, he became conscious of the pickup truck ahead. He continued to observe the truck. The truck was traveling at about 45 m. p. h. and as the "truck was headed down the highway to the east, it had a light that come on and went off, come on and went off, and I apparently thought that he was probably going to pull off to pick up his mail or pull to the right so I pulled to the passing [north] lane of the highway." The right rear light went on and off "[p]ossibly three times." As Hyatt got closer to the truck he noticed that "it was beginning to come from the right part of the side of the highway toward the center line with the front wheels like it was going to turn to the left." Hyatt began to apply the brakes. Welch "continued to be in motion going to the left of the highway." Hyatt put on the brakes and the car began to slide. Hyatt "could see" that Welch was The cars kept getting closer and "I thought if there was any way possible to get around behind why that is what I wanted to do to miss it completely." But the cars collided Hyatt's left fender and bumper "contacted" the bumper of the pickup. At the time of the impact, Hyatt testified that the front of the pickup was "[a]cross the center line." At the time of the impact the truck was traveling 7-10 miles per hour and Hyatt had slowed to ten miles per hour. Although he left skidmarks of 75 or 80 feet, he did not avoid the impact. The impact was referred to as a glancing blow. Hyatt's auto came to rest east of a "mailbox" headed east and the Welch truck came to rest in the "driveway" headed in the opposite direction (west). Mrs. Hyatt went to the trailer house and called the police.
On cross-examination, plaintiffs' counsel sought to show that Welch did not intend to turn left, and that Hyatt never sounded a horn at any time before he started to pass.
When asked on cross-examination "Now isn't it true that at no time, up to the moment that the two vehicles came together, isn't it true that no part of that pickup truck ever crossed the center line of the highway with the possible exception of the bumper, front bumper," Hyatt answered "I don't agree." Hyatt was unsure as to how much of the truck crossed the center line "because I was trying to . . . control my car." Hyatt was also confronted with his earlier deposition in which he stated that the pickup, prior to the collision, did not cross the center line.
When asked at what angle the pickup was at the moment of impact, Hyatt stated "It would have been sitting with the front portion of it to the left of the highway, of the centerline, with the rear part to the right." Due to the width of the highway and the width of the Welch pickup, counsel sought to show that the pickup moved "perhaps two feet" which indicated that Welch was going to turn left. He indicated the impact occurred "just about opposite" the driveway.
On cross-examination, of Hyatt, plaintiff's counsel asked:
He did indicate, however, that the left front of the pickup was up to the driveway.
On redirect, Hyatt testified that at the time he saw the wheels of the pickup turn to the left, he was in the passing lane. He further testified that at the time of the occurrence, the pickup truck was headed "toward the driveway."
A highway patrolman, who came to the scene following the collision, testified. He described the road, the shoulders, the topography of the highway and the farm driveway. He testified as to the location of the vehicles after they came to rest after the collision. The Hyatt vehicle was parked on the south shoulder facing east and the Welch pickup was facing back to the west. There were two skidmarks beginning north of the centerline in the west bound traffic lane of approximately 87 feet. The skidmarks curved back to the south into the east bound lane and ended close to the south edge of the pavement "(j)ust directly south of the driveway." The officer found debris near the centerline of the highway "at the same point where what would have been the left wheel skidding came across the centerline." The debris was just a few feet to the west edge of the driveway. Debris was found in the eastbound as well as the westbound lane. He checked the Welch vehicle, found no turn signaling devices but found it had only one brake light on the right rear the left was not working.
After the evidence was closed and motions for directed verdicts on behalf of both parties were overruled, the court instructed the jury. The verdict directors for the plaintiffs were premised on the rear-end collision theory which authorized recovery unless the jury...
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