Wilson v. Shumate
| Decision Date | 10 December 1956 |
| Docket Number | No. 45337,No. 1,45337,1 |
| Parties | Patricia WILSON, by Kathryn Wilson, her next friend, Appellant, v. Charles R. SHUMATE, Respondent |
| Court | Missouri Supreme Court |
Charles T. Bloodworth, Jr., Poplar Bluff, Briney & Welborn, Bloomfield, for appellants.
Hyde & Purcell, George R. Wilhoit, Jr., Poplar Bluff, for respondent.
COIL, Commissioner.
Patricia Wilson, by her next friend, recovered a verdict and judgment for $15,000 in her damage action for personal injuries allegedly resulting from defendant's negligence. The trial court sustained defendant's after-trial motion to set aside plaintiff's judgment and enter judgment for defendant on the grounds that plaintiff failed to make a submissible case and that plaintiff was contributorily negligent as a matter of law; and alternatively sustained defendant's motion for new trial for the stated reason or reasons that 'the verdict is excessive and against the weight of the evidence.' Plaintiff contends that the trial court erred in sustaining both motions.
To determine the submissibility of plaintiff's case and to determine whether plaintiff was, as a matter of law, contributorily negligent, we review the evidence from a standpoint favorable to plaintiff, giving her the benefit of any part of defendant's evidence favorable to her and not contrary to her fundamental recovery theory, giving her the benefit of all reasonable inferences from all the evidence, and disregarding defendant's evidence not favorable to plaintiff.
Patricia, 17 or 18 at the time of the accident, and two other high school girls rode in defendant's automobile as his guests from Poplar Bluff to Bolivar for the purpose of possible enrollment at South-west Baptist College. On the return trip defendant drove, his wife was a front-seat passenger, and the three girls occupied the rear seat. When the automobile reached a place on Highway 2Sec. north of its intersection with Highway 160, defendant suggested that he was extremely tired and that one of the girls drive. It developed that Patricia was the only one with a driver's license and consequently she became the driver, with the two other girls in the front seat and defendant and his wife occupying the rear seat. At the stop for the change in drivers, defendant had applied the emergency brake. Patricia released that brake and, after defendant's statement that the car was ready to go, proceeded southwardly on Highway 21. She had never before traveled that road and, while there were hills and curves, it was unnecessary for her to use, and she did not use or attempt to use, the foot brake until the time hereinafter noted.
Highway 21 joined Highway 160 in a T-junction, i. e., one had to turn either left or right off 21 onto 160. Patricia intended to turn left. The left turn into 160 was a 'sharp curve,' while the right turn was a 'sweeping curve.' When Patricia reached a sign north of 160 indicating the proximity of the T-junction, she was traveling about 30-35 miles per hour. She there reduced her foot pressure on the accelerator. That junction sign was 500-688 feet north of the north edge of Highway 160. At some point after she passed that sign (she did not know where), she pressed on the foot-brake pedal. The pedal went clear to the floor and had no slowing or stopping action. She tried to stop or slow 'again and again' by working the pedal up and down, 'screamed' that the brakes wouldn't hold, and thereupon ran into the embankment on the south side of Highway 160. She did not use or attempt to use the emergency brake. She did not turn or attempt to turn either left or right on Highway 160 because she was going too fast. Her estimated speed at that time was some, but not much, less than 30-35 m.p.h. The other passengers were awakened by Patricia's screams concering the brakes, and defendant leaned over from the back seat in an unsuccessful attempt to assist Patricia in avoiding an imminent collision with the embankment.
Patricia testified that defendant did not tell her anything about the condition of the brakes; she did not know that the foot brake was not in good working order; and she did not know that the emergency brake could be used as a hand brake to stop the automobile.
Defendant's automobile was a 1950 'used car' which he had owned for a month prior to the accident and which had traveled 50,000 miles at the time of purchase. It had 4-wheel hydraulic brakes. Defendant had had no work done on it, had never checked the brake fluid or added any, and had never had the brakes adjusted.
Section 304.560(3) RSMo 1949, V.A.M.S., provides that 'All motor vehicles, except motorcycles, shall be provided at all times with two sets of adequate brakes, kept in good working order, * * *.' If plaintiff's pleading sufficiently alleged, and her trial theory and submission of the case were on the theory, that defendant had violated that statute, then there can be no question but what plaintiff made a submissible case. Plaintiff's testimony, heretofore noted, that the brake pedal went clear to the floor as she 'again and again' used it in an attempt to stop the automobile, that it failed to slow or stop but ran into the embankment, was sufficient evidence from which a jury reasonably could find that defendant's automobile was not equipped with two sets of brakes in good working order during the time plaintiff was driving and that the defective foot brake contributed to cause the collision. Defendant's failure to observe the duty or standard of care prescribed by the statute constituted negligence. In recognition, however, of the principle that the statute must be reasonably construed and applied, defendant could offer proof of legal excuse or avoidance of his failure to have observed the duty created by the statute, i. e., proof that an occurrence wholly without his fault made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided. Upon adducing substantial evidence tending to so prove, it was then a jury question as to whether defendant was negligent for failure to have provided a foot brake in good working order. Lochmoeller v. Kiel, Mo.App., 137 S.W.2d 625, 630; and see, 65 C.J.S., Negligence, Sec. 19 h, p. 426.
We have said above that the foregoing is true if plaintiff proceeded on the theory that defendant violated the statute mentioned above. We have so said because it is not entirely clear either from plaintiff's petition, the evidence adduced, or her instruction, that she did so proceed. The petition, evidence, and instruction are such that they are subject to the construction that plaintiff tried and submitted her case on the theory that defendant was guilty of common-law negligence in permitting plaintiff to drive his automobile when he knew or should have known that the brakes were defective and in failing to have warned plaintiff...
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