Whaley v. Zervas, 49276

• Decision Date: 13 May 1963
• Docket Number: No. 49276,No. 1,49276,1
• Citation: 367 S.W.2d 611
• Parties: Jack WHALEY, Appellant, v. Jewell M. ZERVAS, Respondent
• Court: Missouri Supreme Court

Page 611

367 S.W.2d 611

Jack WHALEY, Appellant, v. Jewell M. ZERVAS, Respondent.

No. 49276.

Supreme Court of Missouri, Division No. 1.

May 13, 1963.

Edward P. Burke, Strubinger, Tudor, Tombrink & Wion, St. Louis, for appellant.

Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for respondent.

HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $20,000 for personal injuries sustained when the truck he was driving overturned. The trial resulted in a verdict for defendant. Plaintiff has appealed from the ensuing judgment and here makes the sole contention that the trial court erred in giving Instruction No. 6 at the request of the defendant.

The casualty occurred on April 29, 1959, in Franklin County, Missouri, at the 'T' intersection of Highways 66 and 30. Highway 66 runs generally east and west at that point and consists of two lanes for traffic in each direction. A grassy strip with a dip in the center divided these traffic lanes. Highway 30 runs north and south but terminates at Highway 66 which it enters from the south. There is a graveled crossover between the eastbound and westbound lanes of Highway 66 at this intersection. A 'Stop' sign is maintained at the point where traffic enters Highway 66 from Highway 30, and there is a 'Yield' sign controlling vehicles entering the westbound lanes at the crossover.

Plaintiff testified that on the date mentioned he was employed by Kenosha Transport Company of Springfield, Ohio, as an over-the-road driver; that he was taking three trucks from Springfield, Ohio, to Albuquerque, New Mexico; that he was driving one large truck with a small truck mounted thereon, and the third truck was being towed by use of a tow bar; that he was westbound on Highway 66 and approached the intersection where the casualty occurred while driving in the right-hand lane at a speed of 40 miles per hour; that when about 100 feet from the intersection he heard the squeal of brakes and then saw the car driven by defendant proceeding across the crossover; that the car continued making a left turn until it straddled both westbound lanes 'and I was sitting almost on top of it; I swerved to the left to avoid contact with it, and when I tried to get the vehicle straightened up, I finally had it straightened up, * * *' defendant's car moved back over into the south westbound lane in front of the truck; that he then swerved again to the left but got too close to the shoulder and the truck rolled over.

Plaintiff further testified that after the trucks rolled over he 'blacked out'; that when he recovered consciousness someone was attempting to pull him out of the cab; that this person, whom he later learned was Paul Phipps, put him in his car and they drove on west trying to overtake defendant's car; that they located defendant, and notified a highway patrolman who made an investigation of the occurrence.

On cross-examination plaintiff testified to three versions of the distance his vehicle was from Highway 30 when he first saw defendant's car. One version, as stated, was that he was 100 feet back when he saw defendant's car. He later stated that he was 35 or 40 feet from Highway 30 when he saw it, and finally he testified that when he first saw defendant's car it was straddling the line dividing the westbound lanes, and 'I was almost right on top of it.'

Defendant testified that she was driving her 1956 Mercury with her sister as a passenger; that they were going to Sullivan, Missouri, and approached Highway 66 from the south on Highway 30; that she stopped before crossing the eastbound lanes and also stopped at the 'Yield' sign before turning left into the westbound lanes because a large truck was passing; that she saw plaintiff's truck 150 to 200 feet back and drove into the right westbound lane and kept her car in that lane; that she then heard this 'terrible noise' and looked in her rear-view mirror and saw the truck 'practically on top of me'; that the truck then swerved to the left and I saw in the rear-view mirror that it had turned over; that she went on to a garage a short distance down the road and sent the garage men back to the scene of the occurrence; that she then proceeded west until plaintiff and Mr. Phipps stopped her.

Defendant admitted that she was arrested and later entered a plea of guilty and paid a fine for 'not yielding the right of way.'

Donald Rodgers, the highway patrolman who investigated the occurrence, stated that plaintiff's truck laid down 100 feet of skid marks beginning at the east line of the intersection and angling from the center line of the westbound lanes; that plaintiff's statement to him was, 'I was going west on Highway 66 at governer's speed of 40 miles per hour. This lady came across this intersection in front of another car and me. Then she pulled directly in front of me without any warning; swung to the outside lane, then just as I started by her, she cut back to the other lane in front of me. That's when I lost control.' Defendant's statement to him was that she had 'stopped there to let a truck go by and he was way back there, and I pulled out and went over into the far lane, and I heard the brakes squeal and I looked in my mirror and saw him go off to the side. I went on to the garage and asked those men to come down and help him as there was nothing I could do.'

Plaintiff's verdict-directing instruction hypothesized defendant's failure to yield the right of way to plaintiff under the conditions detailed therein. As stated, plaintiff complains of error in the giving of Ins...