Welch v. Sheley, 54070

• Decision Date: 14 July 1969
• Docket Number: No. 2,No. 54070,54070,2
• Parties: Philip Lantz WELCH, Appellant, v. Harriett E. SHELEY, Respondent. Philip Lantz WELCH, Respondent, v. Harriett E. SHELEY, Appellant
• Court: Missouri Supreme Court

Page 110

443 S.W.2d 110

Philip Lantz WELCH, Appellant, v. Harriett E. SHELEY, Respondent.

Philip Lantz WELCH, Respondent, v. Harriett E. SHELEY, Appellant.

No. 54070.

Supreme Court of Missouri, Division No. 2.

July 14, 1969.

Kenneth E. Arnold, and Edward W. Mullen, Joseph W. Amick, Deacy & Deacy, Kansas City, for defendant-appellant.

Blumer, Wright, Bittiker & Rocha, and Roy F. Carter, Sprinkle, Carter, Larson & Hanna, Kansas City, for plaintiff-respondent, James W. Jeans, Kansas City, of counsel.

HENRY I. EAGER, Special Commissioner.

This case involves cross-appeals by plaintiff and defendant in an action for personal injuries and property damage and a counterclaim for personal injuries; it arose out of an automobile collision. The collision occurred at about 6:45 p.m. on Southwest Trafficway in Kansas City on October 17, 1966; it was raining lightly and it was dark, except for numerous street lights and the lights of cars. The jury found for defendant on plaintiff's petition and for plaintiff on defendant's counterclaim. The trial court overruled both motions for new trial and both parties appealed. Plaintiff appealed to this court since the amount he sought was $28,500. Defendant appealed to the Kansas City Court of Appeals because of her $15,000 prayer, but that case was transferred here, and properly so, since plaintiff's appeal vested jurisdiction here. Heuer, et al., v. Ulmer, Mo.App., 264 S.W.2d 895, and cases there cited.

We need not recite the pleadings in any detail. Plaintiff charged defendant with negligence in failing to keep a proper and vigilant lookout ahead, and in negligently operating her car so as to cause or allow it to collide with the rear of a third car and 'thereafter bounce' into plaintiff's path. Defendant denied all the substantive allegations and pleaded contributory negligence. Defendant, in her counterclaim, charged plaintiff with negligently failing to keep a careful lookout, with negligent speed, and in failing to stop, slow or swerve. In plaintiff's reply he charged defendant with contributory negligence. Upon motion of the plaintiff, and over the objections of defendant, the court ordered separate trials on the issues of liability and damages as to both claims, with the same jury to determine the damages if that question became material. This procedure seems rather unusual but the defendant has not preserved here any point in opposition to it.

Five cars were involved in this occurrence, directly or indirectly. We shall try to sift out those facts which seem material. The place was, as stated, on the Southwest Trafficway in Kansas City, and within the three southbound lanes. There was a concrete median; construction work was being done on the trafficway further north, but the 3 lanes there were intact. The trafficway sloped gradually upward to the north from this point and downward to the south; it was elevated and 23rd Street passed under it at about the scene of the collision. A ramp entering from the west (and below) is also referred to.

A car driven by a Mr. Sharp went out of control, struck the medial strip and ended up facing the strip and blocking all of the left lane and much of the center lane; a Mr. Steinwart driving behind Sharp in the middle lane saw that occurrence and stopped about 40 feet back; thereupon his car was promptly struck by one driven by a Mr. Trost. We shall refer to these cars and drivers (in certain places) as numbers 1, 2 and 3. Number 2 and number 3 drivers got out, talked briefly and decided to pull their cars over to the medial strip, which they did. No. 2 parked his car along the median, headed south, about 20--40 feet back of the Sharp car; No. 3 parked near the strip and close behind No. 2. Very soon the cars driven by plaintiff and defendant came down the trafficway and two more collisions occurred. Defendant's car (No. 4) was struck in the rear (largely center) by plaintiff's car, and defendant's car also struck, rather violently, the rear of No. 3 (Trost). The big disagreement here is whether defendant first struck Trost's car in the left lane and 'bounced' over in front of plaintiff (as he claims), or whether she had stopped and was knocked into No. 3 by the plaintiff's car. There was much evidence and controversy over which lane the last collision or collisions occurred in and the positions of the cars afterwards.

The plaintiff testified: that he was driving at all pertiment times in the center lane; that defendant was in the left (east) lane and 2--3 car lengths ahead of him; that he was driving at about 35 miles an hour and was not paying any particular attention to defendant's car; that he realized it was ahead of him and in the left lane; that when about 10 car lengths back he saw the Sharp car blocking part of his lane, let up on the gas, and was looking ahead to see if he could swerve to his right, when suddenly the rear end of defendant's car bounced into his lane in an arc, 40 feet or less in front of him; that at impact he had swerved slightly to the right and had gotten his foot on the brake, but he did not know whether the brake had taken effect; that he had no warning and was positive that this collision occurred in the middle lane; that he was not in the left lane at any time; that the left front of his car hit the rear of defendant's, and at that time her car was headed southeast; that after the collision his car was headed slightly east of south, and its left front was just about on the line between the left and middle lanes; that defendant's car was in the middle and west lanes headed generally east, with its rear toward the west wall.

Defendant testified: that she drove entirely in the left (east) lane at approximately 30 miles an hour; that from about two blocks north she saw cars stopped 'at the lower end of the grade,' including No. 3 with its taillights on; that she decreased her speed, 'pumped' her brakes and stopped entirely in the left lane before hitting the No. 3 car (Trost) and about 2 or 3 feet from it; that she was in the middle of the lane and No. 3 was a little closer to the median; that some cars then passed her on the right, and looking in her mirror she saw headlights behind her; that her car was soon struck from behind and knocked into Mr. Trost's car, a 'terrific' impact; she extimated the time she was stopped as from 30 seconds to 2 minutes; that her car then 'spun' out clockwise into the middle lane and wound up headed northwest across the middle lane and on the 'edge' of the right lane; that she was thrown against the top and fell backward over the seat; that plaintiff's car, after the collision, was in the left lane and extending somewhat into the middle lane, headed a little southwest. There is no controversy over the fact that plaintiff's car struck the rear of defendant's car; the question is where, and when and why.

Plaintiff used as a witness the investigating officer, Gerald Greeley. The police report made by him was frequently referred to in much detail but never introduced. He had talked to plaintiff, defendant and others, had made notes at the scene, and had drawn a diagram showing the positions of the cars after he went back to the police station. The diagram was apparently shown to counsel and perhaps to the jury, without objection. He obviously testified from his report and stated: that plaintiff's car was 'approximately' in the middle lane headed 'slightly southeast'; that defendant's car was located in both the middle and west lanes, leaving just enough room in the west lane for a car to 'scrape' by (which one did). Counsel prepared (at the trial) a diagram of the locations, as the witnesses testified, but it has not been sent here. This and the police diagram were apparently in some agreement, but defendant disagreed strongly on certain features concerning 4 and 5. The officer made no measurements; certain errors were shown in his report, such as defendant's address, the exact north and south location on the trafficway, street lights, etc. He insisted throughout that his diagram was correct as to the directions of cars 4 and 5, though possibly a few feet off on exact locations. He talked to all drivers. He testified: that defendant told him that Mr. Trost stopped suddenly in front of her and that she could not avoid hitting him (which she specifically denied); that when he tried to talk to plaintiff, who was holding a handkerchief to his mouth and bleeding some at the mouth (apparently several teeth were knocked out) the latter told him that he was a lawyer, handed him a professional card, and said that 'he did not wish to make a statement at this time.' Welch denied this, admitting that he gave the officer a card, but thought his jaw was broken and did not try to talk. More will be said on this point later.

Photographs were identified and offered by both parties; most of them were taken professionally and were used principally to show the damage to the cars. Two were prints of part of a series of television pictures taken soon after the collision. They are rather dim. One was introduced by plaintiff, one by defendant. The parties sought vigorously to use these to show their respective theories as to the locations of the cars after the impact; this was attempted in part by references to street lights and other cars or car lights supposedly shown in the pictures. Both the photos and the testimony were vague. We shall not need to dwell here on any of the photographs.

Mr. Trost (No. 3) testified for defendant, generally, that: No. 1 car spun and hit the medial ahead of him; that the car ahead of him stopped suddenly and he ran into it; that he and the driver that hit him moved their cars over into the left lane and against the median strip, with the other car (No. 2) in front of his. He did not see the impact between plaintiff and defendant. He testified that later plaintiff's car was north of his car, on a slant to the southwest, with its entire rear in the left...