Williams v. Cavender
| Decision Date | 13 April 1964 |
| Docket Number | No. 50066,No. 2,50066,2 |
| Citation | 378 S.W.2d 537 |
| Parties | Mabel B. WILLIAMS, Respondent, v. Herbert H. CAVENDER and Emil G. Trott, Executors of the Estate of Thera P. Cavender, Decedent, Appellants |
| Court | Missouri Supreme Court |
Louis F. Cottey, Lancaster, for appellants.
Bruce Normile, Brown & Normile, Edina, for respondent.
Plaintiff, the widow of Minor E. Williams, sued defendant Executors for her husband's wrongful death in an automobile collision. Defendants' decedent died almost instantly in the same tragedy. Mr. Williams died six days later from the injuries he sustained. There were no witnesses and we are forced to decide the issues upon purely circumstantial evidence. Plaintiff recovered a verdict and judgment for $25,000, and defendants' motions for judgment and for a new trial were overruled.
The collision occurred on U. S. Highway 63 between Kirksville and Macon, on October 14, 1960, at about 2:15 p. m. This particular stretch of road was of relatively new concrete paving, 24 feet wide; the shoulders were of dirt, 11 feet wide, but soft and muddy at the time. On account of the slope, the west shoulder was somewhat more muddy than the east one. The pavement was dry. Highway 63 runs generally north and south. The collision occurred just south of the approximate center of a gradual curve to the southwest; at that point the road was substantially level. The center line was painted black, with alternating white streaks.
The decedent, Thera P. Cavender, was driving a 1952 Plymouth north toward her home in Iowa; Williams was driving a 1959 Oldsmobile from Kirksville to Macon. The sole witness of any real consequence on the merits was Trooper Charles K. Carlson, one of the two investigating Highway Patrolmen, who was produced by the plaintiff. He arrived at the scene within approximately twenty minutes, and he made various measurements and notations; these were incorporated into a report which he used to refresh his memory. The following is the substance of his testimony, including his physical findings. The Plymouth was headed south, with both of its left wheels on the center line, and the major portion of the car in the west (southbound) lane; its driver appeared to be dead. The major force of the impact on that car was to the right front, but the whole front of the car was demolished; there was some damage to the right door and minor damage on the right rear near the taillight. (The photographs confirm this testimony, generally.) The Williams Oldsmobile was mainly on the west shoulder, headed southwest, and a little north of the Plymouth; its right front wheel was at the west edge of the shoulder, its right rear wheel just off the slab, and its left rear wheel on the west edge of the slab. The impact to the Oldsmobile covered the entire front end, but with marked damage to the left front door. The rear of the Plymouth was 15 feet south of the left rear corner of the Oldsmobile. The debris 'started near the center line,' the majority being in the west lane, but there was debris in both lanes. Mr. Williams was found sitting on the edge of the road, but he said, He also stated that he was headed toward Macon, that he had his 'buzzer' set and, in effect, that he was therefore not going 'over 70.'
This witness described three 'skidmarks' which he had located and measured. One, which he designated as a pressure mark rather than a skidmark, began 'back south of the point of impact,' 4 feet from the east edge of the paving, and ran continuously, first to the north and then somewhat westerly in an 'arcing' direction for a total of 44 feet; this mark ended at a point 8 feet and 8 inches from the east edge of the paving and stopped at 'approximately the point of the impact' (no objection was made to that statement on direct examination). By simple arithetic the northerly end of this mark would have been 3 feet and 4 inches east of the center of the road. The witness testified that this mark was of a type 'not normally made by applying the brakes,' but was, in his opinion, one made by undue or unnatural force thrown on a car, as in a change of direction; also, that if one turns a car to the left, extra pressure is thrown on the right side. The distance from the end of this mark to the rear of the Plymouth was approximately 23 feet. The witness located and measured a 19 foot skidmark which arced from the left front wheel of the Plymouth, first to the east and then to the north; this was not more definitely described.
Trooper Carlson found further to the north, and measured, a skidmark 29 1/2 feet long, starting on the center line of the road and running south and west continuously to and under the right rear tire of the Oldsmobile. This mark ran southerly for 18 feet in a gradual angle to the west, at which point it was 2 feet west of the center line; at that point it made an abrupt angle to the west and went 11 1/2 feet farther to and under the right rear tire of the Oldsmobile. This mark thus extended into and across the west or southbound lane. The abrupt angle in this skidmark was approximately a car's length from the north end of the 44 foot pressure mark in the east lane, already described. The Oldsmobile was approximately 6 feet wide and 17 feet long; the Plymouth was approximately 5 feet wide. The Patrolman testified that, although other cars had parked and had pulled on and off the shoulders and some had left tracks, he walked up and down the highway for several hundred feet in each direction and found no other marks that in his opinion were related to the collision. This witness declined to identify as skidmarks any supposed marks shown in photographic exhibits aside from those which he had described orally, stating that he had listed those which he could trace directly to the accident, that he did not recall any others, and that he could not say that any of the things pointed out on the photographs were skidmarks. He did identify various photographs as accurate representations of the damaged cars and of the highway.
A Mr. Huston testified for plaintiff: that, as he drove by the scene going south, after the accident, there were vehicles parked along the sides of the road and on the highway; that he saw to the south of the (wrecked) cars 'some tracks' that had gone off the east side of the road, back on the road, off the west side, back on again, and possibly off again on the east side. At one point he said: 'I did not see the tracks, only where they had come back on the highway the second time,' but he also stated that the tracks probably began 500-700 feet from (south of) the scene of the accident; whether this was the north end or the south end we do not know. He stated that he had no idea what car made the tracks, although the parked vehicles 'wouldn't leave marks like that.' Apparently the witness did not get out of his car. The Court sustained an objection (obviously intended as a striking) to this testimony as wholly immaterial to the issues and as not sufficiently connected up. Trooper Carlson had previously testified that he found no evidence on the highway to indicate that a car had been out of control in the vicinity and had run off and back on the road; he had also testified that he did not see any fresh tracks running off on one side, back, off on the other side and back on, in a continuous line.
There is no controversy over the fact that the injuries suffered in this collision caused the death of Mr. Williams. Much evidence was produced, and from many witnesses, concerning his earnings, his ability and his intelligence. Since there is no contention that the verdict is excessive, we do not notice this evidence further.
At the close of plaintiff's evidence defendants moved for a directed verdict on the specific grounds that plaintiff had failed to establish any negligence of defendants' decedent and that the evidence did establish contributory negligence on the part of Mr. Williams, as related in detail in the motion. The motion being overruled, defendants offered no evidence, but after that election they re-offered their motion, which was again overruled. Plaintiff submitted her case to the jury on the sole theory that Miss Cavender negligently drove her car into the southbound lane and to the left of her own right half of the highway, while Williams was in his own proper lane, that she was thereby negligent, and that her negligence caused the collision. Plaintiff's instruction contained the usual 'tail' excepting a finding of contributory negligence 'as submitted in other instructions.'
Appellants' first point is that the Court erred in not sustaining their after-trial motion for judgment in accordance with their motions for a directed verdict. Their other points concern plaintiff's main verdict-directing instruction and certain rulings in connection with the evidence. We proceed, first, to the vital question of the submissibility of plaintiff's case. It is always unfortunate when we are forced to determine the merits of a case upon such meager and strictly circumstantial evidence as we have here.
We mention, first, the evidence of Mr. Huston, namely, that he saw muddy tracks south of the scene, which first went off the road on one side, back, off on the other side, back, and apparently off again. The testimony was vague and in certain respects apparently conflicting in itself. The trial court sustained an objection to this testimony as immaterial because not in any way connected up with the cars involved. Respondent insists that this ruling was erroneous and that we should consider the evidence here in connection with the sufficiency of plaintiff's case. While this is somewhat unusual in a jury tried case, we shall do so; one very good practical reason for doing so...
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