Will v. Gilliam
| Decision Date | 14 April 1969 |
| Docket Number | No. 53727,No. 1,53727,1 |
| Citation | 439 S.W.2d 498 |
| Parties | Dana Ann WILL, a Minor, etc. and Bernard R. Will, Appellants, v. Earl L. GILLIAM, Respondent |
| Court | Missouri Supreme Court |
Hullverson, Richardson & Hullverson, Thomas J. Motherway, St. Louis, for appellants.
Harlan & Harlan, John L. Harlan, Jr., St. Louis, for defendant-respondent.
HOUSER, Commissioner.
This is an action by Dana Ann Will, 11 years of age, pro ami, for $50,000 damages for personal injuries and by her father for reimbursement and loss of services, for $10,000 damages against Earl L. Gilliam, arising out of a collision between two vehicles at the intersection of Highway 21 and Lin-Ferry Drive in St. Louis County. There was a jury verdict for defendant. Both plaintiffs have appealed.
On this appeal a portion of the final argument of defendant's counsel and the rulings of the court in connection therewith are challenged.
The petition alleged that the child was a passenger in a station wagon driven south on Highway 21 by her mother, approaching and turning left onto Lin-Ferry Drive when defendant, driving north on Highway 21, caused his automobile to collide with the right-hand rear half of the station wagon, thereby injurying Dana Ann. The negligence pleaded was excessive speed, violation of lookout and warning duties and humanitarian failure to stop, slacken, swerve or sound a warning. Defendant filed a general denial. The collision occurred at 11:30 A.M. There was a mist or snowy rain falling and the concrete 20-foot pavement was 'wet mixed with snow.' Highway 21 was a through highway, slightly upgrade for southbound traffic. There were no stop signs for north or southbound traffic on Highway 21. There was a 40-mile speed limit. Dana Ann and her two older sisters were passengers in the station wagon. Dana Ann was seated in the rear. The station wagon was traveling from 30 to 40 feet behind a Sprite sports car driven by Dana Ann's father. The drivers of both vehicles intended to turn left onto Lin-Ferry Drive. The Sprite successfully executed the left turn but the station wagon driven by Mrs. Will was struck by defendant's car as the wagon was making the left turn. Mrs. Will testified that she put her directional signals on when 100--150 feet north of the intersection; that she saw defendant's northbound car just coming over the crest of the hill (approximately 200 feet to the south) at a time when the station wagon was 100 feet from the intersection. She testified that there was nothing unusual about the speed of defendant's car; that he was going at a normal rate of speed. She did not continue to watch defendant's car. The speed of the station wagon then was 20 m.p.h. When probably 20 feet north of the north edge of Lin-Ferry Drive Mrs. Will turned from her right-hand, southbound lane across the center line and completely into and occupied the northbound lane, slowing down to 10 m.p.h. at which constant 10-mile speed she commenced her left-hand turn, following the sports car, which completed its left turn into Lin-Ferry Drive. She testified that when she started to make her left turn the station wagon was two car lengths (20 to 40 feet) north of the center line of Lin-Ferry Drive. She 'cut the corner short' by starting the left turn before she reached the north edge of the intersecting street. She saw defendant's car again 'the flash second that the impact happened.' When the vehicles collided the front end of the station wagon was into Lin-Ferry Drive and the back portion was 'blocking the northbound lane.' As a result of the collision the station wagon did a complete half circle and was pushed back 30 feet.
Defendant's testimony: Traveling north at 25 m.p.h., slightly downgrade, with his windshield wipers on, defendant saw the southbound sports car make a left turn in front of (and 'not too awfully far' ahead of) him. Defendant touched but did not apply his brake. As soon as the sports car 'cleared the road' defendant saw the station wagon 'right there,' 'right in front' of him, two car lengths away. All of the station wagon was completely in defendant's lane and it was headed south at a slight angle. The front of the station wagon had not then reached the north edge of Lin-Ferry Drive. Other cars were coming south in their proper (west) lane, so that both lanes were blocked or occupied, and there was 'no way for (defendant) to go'--'no place to go.' Defendant stepped on his brake, the car slid, 'there was nothing (he) could do,' and his car collided with the wagon at a point north of the intersection (not in the intersection). Defendant claimed that he was watching the sports car turning in front of him; that he was concentrating on it making a turn and that the sports car was 'blocking off' or obstructing his view of the station wagon.
An independent eyewitness, Allan Smith, first saw defendant's car when it was 20--30 feet south of the intersection. When he first observed defendant's car it appeared that 'he was nosing down as if he were applying his brakes.' At that time the station wagon was in the process of cutting across the highway from right to left, one or two car lengths north of the intersection. At the time of impact the station wagon was nearing the intersection, cutting the corner short, trying to get around the corner. The point of collision was not in the intersection but was at the north edge of the intersection, 'right at the northeast corner,' and the station wagon was pointed in a southeast direction.
Plaintiffs' case was submitted to the jury on defendant's failure to keep a careful lookout, or failure to slacken speed or excessive speed. Instruction No. 8 directed a verdict for defendant if the jury did not believe that defendant was negligent as submitted. The court refused to give the following instruction offered by defendant:
'INSTRUCTION A
'The phrase 'right of way' as used in these instructions means the right of one vehicle to proceed ahead of the other.
'When the driver of a vehicle intends to turn left at an intersection, and another vehicle, approaching from the opposite direction, is within the intersection, or is so close that the turn would create an immediate hazard, the approaching vehicle has a right to proceed ahead of the vehicle intending to turn left.'
According to an affidavit filed with plaintiffs' motion for new trial (to which no counteraffidavits or other denials were directed), after the court marked Instruction A refused, in chambers, the judge suggested to defense counsel that the court knew how the right of way Instruction A could be argued to the jury, namely, by defense counsel saying to the jury 'The Court will stop me if this is not the law' and by then having defense counsel read the instruction to the jury. Defense counsel said he would follow the suggestion, and during final argument defense counsel did pick up a copy of the refused instruction from the counsel table and read it to the jury.
Here is the sequence of events: After arguing that there was 'no way in the world' that defendant could have avoided this accident and that defendant 'did everything he could do,' defendant's counsel stated that Mrs. Will had placed herself and her children in a precarious position where an accident was inevitable; and that it was unrefuted that...
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