Wilson v. Toliver
| Decision Date | 12 December 1955 |
| Docket Number | No. 44625,No. 2,44625,2 |
| Citation | 365 Mo. 640,285 S.W.2d 575 |
| Parties | Kathleen L. WILSON, Administratrix of the Estate of Edward G. Jones, Deceased, Appellant, v. Albert TOLIVER, Respondent |
| Court | Missouri Supreme Court |
Russell Roberts, Philip Fowler, Kirksville, Jim Clemens, Bowling Green, Edwards, Hess & Collins, Macon, for appellant.
Richard DeCoster, Canton, Thomas R. McGinnis, St. Louis, Charles E. Gray, St. Louis, for respondent. BOHLING, Commissioner.
A collision of two automobiles gave rise to this action. Edward G. Jones was killed in the collision; and Kathleen L. Wilson, administratrix of his estate, sued Albert Toliver for damages. Defendant answered and counterclaimed. The jury found against plaintiff and for defendant, awarding defendant $16,000 damages. Judgment followed. Plaintiff contends error was committed in not directing a verdict for plaintiff on defendant's counterclaim, in the exclusion of certain testimony, in giving and refusing certain instructions, and in the argument of defendant's counsel. Each litigant contends the other was guilty of contributory negligence as a matter of law, and plaintiff contends defendant did not make a submissible humanitarian case. These are close factual issues calling for a detailed statement of the facts.
Edward G. Jones, with his wife, Lenora, to his right on the front seat, and his sister, Mrs. Bertha Garrett, on the right side of the rear seat, left Kirksville, Missouri, their home, in Jones' 5-passenger Chevrolet coupe about 4:15 a. m. July 20, 1952, for Galesburg, Illinois. Their route was eastwardly over Missouri highways 6 and 16 to Canton, Missouri.
Albert Toliver, of Ewing, Missouri, was proceeding in his Hudson sedan westwardly over Mo. 6 to La Belle, Missouri, to pick up his son-in-law for a trip to Illinois.
For convenience we refer to Edward G. Jones as plaintiff and to Albert Toliver as defendant.
The two automobiles collided about 5:10 a. m. at the east end of the junction (stated by one litigant to be a lopsided wye) of Highways Mo. 6 and Mo. 16, about one-half mile east of Lewistown, Missouri. Each was in its proper lane of travel: the Chevrolet, for eastbound traffic on Mo. 16; the Hudson, for westbound traffic on Mo. 6. The morning was clear and sunny. The blacktopped highways, each 24 feet wide, were dry. No obstructions to the view or appreciable grades are involved.
Plaintiff and his wife were instantly killed. Mrs. Garrett and defendant, who was knocked unconscious, were seriously injured. They were the only eyewitnesses to the impact of the automobiles.
Highway Mo. 6 extends westwardly from U. S. 61 near Taylor, Missouri, through Ewing, Lewistown, La Belle and Kirksville to a point on U. S. 36 near St. Joseph, Missouri. Highway Mo. 16 is an east-west road, 18 miles in length, between the junction of Mo. 6 and 16 to U. S. 61 at Canton, about 14 miles north of Taylor, and passes through Monticello. What is now Mo. 16 was originally part of Mo. 6 (see Centennial Road law, 1st Ex.Sess.1921, p. 155, Sec. 29, Lewis county, Sec. 227.020, statutory references are to RSMo 1949 and V.A.M.S.). In the nineteen thirties a new highway was constructed from near Taylor through Ewing to connect at the junction involved with said east-west road across Lewis county, and the number of the old highway from the junction to Canton was changed to Mo. 16 and the new highway was designated a part of Mo. 6. The old highway (now Mo. 6 and Mo. 16) is a due east-west road in the vicinity of the junction. Highway Mo. 6 runs slightly southeast-northwest at the junction, forming an acute angle with Mo. 6 at the east end of the junction.
Each highway had its center line marked by a dashed line, painted white. The painted center line on Mo. 6 followed the curve of Mo. 6 through the junction; whereas the painted center line of Mo. 16 ended at the north edge of the westbound traffic lane (if extended) of Mo. 6. Consequently, a westbound automobile on Mo. 6 would not pass over the painted center line of Mo. 16 at the junction; but an automobile from the west on Mo. 6 desiring to proceed eastwardly over Mo. 16 would pass over the painted center line of Mo. 6 at the junction. The general layout for painting the center lines is under the maintenance department of the State Highway Commission, comes through to the district level, and the district maintenance department does the actual painting.
A highway sign for eastbound traffic just south of the pavement showing, with arrows, Junction Mo. 16 straight ahead, Mo. 6 to the right, was 300 or more feet west of the west end of the curve for Mo. 6 at the junction; and immediately opposite said west end of the curve was another sign showing Mo. 6 to the right and Mo. 16 straight ahead. There was no 'stop' sign for either plaintiff or defendant. On the north side of Mo. 16 for westbound traffic, not here involved, were two highway signs; one, approximately 60 feet east of said west end of the curve, showed Mo. 6 westbound, and the other, about 230 feet farther east, was a stop sign. In the neighborhood of 472 feet east of said west end of the curve and 300 feet east of the easternmost meeting point of the highways was a crossover for the interchange of traffic between the two highways.
Defendant testified that he first saw the Chevrolet when the two automobiles were about 300 feet apart, each being about 150 feet from the point of impact, and that each automobile was traveling about 50 miles an hour. Plaintiff's evidence was corroborative. Mrs. Garrett, the sole survivor in the Chevrolet and plaintiff's witness, stated she could not give the speed, but that plaintiff had traveled at about the same speed from Kirksville to the point of collision, 45 or 50 miles, in about 50 minutes, and she noticed no appreciable difference in the speed of the Chevrolet after she saw defendant's Hudson. Consult State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 686; State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233, 238. The case is submitted on these estimates.
Mrs. Garrett further testified that the Chevrolet traveled in the eastbound lane of Mo. 16 and was never on the wrong side of Mo. 16; that it was east of the house nearest the junction when she first saw defendant's Hudson approaching but she could not say where the Chevrolet was with reference to the junction (the house is approximately 170 feet west of the west end of the curve and approximately 306 feet west of the point of impact); that the Hudson was 'weaving' when she looked up; that it swerved to the left, crossed the center line on the curve of Mo. 6, then back into its lane, and appeared to come into the Chevrolet head on; that a 'screeching sound' of the Hudson's tires accompanied its weaving, and that plaintiff's last words were: 'I wonder what that guy--,' and that his wife screamed just before the collision.
Defendant was familiar with the junction. He testified that he was at all times in his proper lane of travel around the curve and his automobile did not swerve or weave across the center line of Mo. 6; that he dould have seen the Chevrolet some distance farther back than 150 feet; that 'when I first saw it he was well to his right in his lane of traffic headed east and then all at once, without any signal or anything, he started to cross the white line into my lane of traffic'; and that what he is saying is that the Chevrolet crossed the painted center line of Mo. 6. Defendant also testified that when the automobiles were 300 feet apart he realized the Chevrolet would either go around the curve on Mo. 6 or strainght ahead due east on Mo. 16; that he, defendant, continued to follow around the curve on Mo. 6 for 100 feet; that when the automobiles were about 100 feet apart and each 50 feet from the point of impact he first put on his brakes and started to swerve his Hudson; and that he traveled about 100 feet after he saw the Chevrolet before he did anything.
Witnesses Sam Gnuse, who arrived at the scene at 5:25 a. m., before anyone had been removed from either automobile, a first arrival, and Patrolman L. P. Forrest described where the debris was on the highway et cetera. Plaintiff's Exhibit No. 8 is a plat, drawn to scale, of the junction and Mo. 6 and 16 in the immediate vicinity, and it was agreed that it fairly represented the intersection. Witness Gnuse drew a circle on said Exhibit No. 8 indicating where the debris was. Defendant stated the circle represented the approximate point of impact.
Patrolman Forrest made measurements of the scene. He testified: The Hudson bounced back 6 feet and the Chevrolet bounced back 26 feet from the point of impact. It measured 136 feet from the west end of the curve to the point of impact and 35 or 36 feet from the point of impact to where the south edge of the pavement on Mo. 16 meets the northeast edge of the curved pavement on Mo. 6 (the west point of the triangular plot of ground between Mo. 6 and 16). The point of impact was 6 feet south of and opposite the end of the white painted center line of Mo. 16 and 10 feet north of the center line of Mo. 6 at that point, making the point of impact 22 feet north of the south edge of the pavement on Mo. 6. (This corresponds with the circle placed on Exhibit No. 8 by witness Gnuse.) There was a 53-foot straight eastwest skid mark of one tire of the Chevrolet in the south lane for Mo. 16 to the point of impact and the skid marks of the Hudson were 50 feet in length.
From photographs offered in evidence: The damage to the Chevrolet was greatest at its right front or southeast corner as it traveled east, including the headlight and front fender. The damage to the Hudson was more on its front, mostly to the right front, with the right front fender pushed back, up and in and the left front fender showing no material damage. One witness testified the left front corner of...
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