Witherspoon v. Guttierez, 47067
| Decision Date | 14 September 1959 |
| Docket Number | No. 1,No. 47067,47067,1 |
| Citation | 327 S.W.2d 874 |
| Parties | Gertie Zoellers WITHERSPOON, Respondent, v. Lawrence GUTTIEREZ, Appellant |
| Court | Missouri Supreme Court |
James S. Formby, Strubinger, MacElhern & Formby, Kansas City, for appellant, Lawrence Guttierez.
Albert J. Yonke, Kansas City, for respondent.
HOUSER, Commissioner.
This is an action for personal injuries sustained by a passenger, one Gertie Zoellers Witherspoon, in an automobile collision in Jackson County. A verdict and judgment for $8,000 was rendered for plaintiff and against defendant, Lawrence Guttierez. On this appeal defendant raises only one point: error in the giving of plaintiff's main verdict-directing Instruction No. 1.
Highway No. 71 runs north and south. No. 71 at the scene of the collision is a divided highway with separate double lanes for northbound and southbound traffic, each 20 feet wide, separated by a wide strip of land. Blue River Road intersects No. 71 at right angles. The site of the collision was the intersection of Blue River Road with the northbound double lane of No. 71. The northbound double lane (for one-way traffic only) consists of two 10-foot strips of paving, i. e., a 20-foot pavement, bounded by shoulders on each side. The shoulders were covered with mud, gravel and cinders. No. 71 is straight and level for 300-400 feet south of the intersection. Both automobiles were traveling north on No. 71. It was dark, 12:30 a. m., but visibility was good. The highway was wet but not slick. The front of defendant's Chrysler automobile struck the rear of the Nash automobile in which plaintiff was a passenger.
The facts favorable to the prevailing party are as follows: As the Nash approached the intersection at a speed of 25 or 30 miles per hour it was traveling on the left or west half of the 20-foot pavement. Its right wheels were near the center line of the two 10-foot strips, its left wheels three or four feet east of the west or left edge of the 20-foot pavement. At a point 50 to 80 feet south of the intersection the driver of the Nash, intending to turn left on Blue River Road, slowed down, started angling to her left, and made a gradual turn to the left. When the Nash was at about a 30-degree angle to No. 71 with its front wheels, or its left front wheel a foot or so over the left or west edge of the pavement, and the rear wheels two or three feet back onto No. 71, traveling about 15 miles per hour, the driver of the Nash hollered, 'O, my God.' Plaintiff looked back and saw the lights of defendant's Chrysler coming up behind them, to their left. Defendant's Chrysler was traveling at 40-45 miles per hour. Defendant was 'trying to pass'; was 'going to pass' on their left. It appeared that the Chrysler was going to hit the Nash on the left side, and that would have happened if the driver of the Nash had not turned to the right. The driver of the Nash cut her wheels to the right, back onto or toward No. 71, and speeded up the Nash to about 20 miles per hour. After the Nash was back on No. 71, headed north and parallel to the highway, its front end about even with the north edge of Blue River Road and its rear end about even with the center line of Blue River Road, and with its left wheels 'a couple of feet' east of the left or west edge of the pavement, the right front and right headlight of the Chrysler struck the left rear of the Nash. From the time plaintiff first saw the lights of the Chrysler until the time of impact, the time lapse was 'a couple of seconds,' 'something of that order.' The severe impact drove the Nash forward about 30-40 feet, inflicting plaintiff's injuries. The driver of the Nash told a deputy sheriff that she slowed down to make a left turn, saw a car coming up behind her and tried to get out of the way, but couldn't.
Defendant's version of the facts: Both the Nash and Chrysler were proceeding on the right or east half of the 20-foot pavement. The Chrysler turned into the left or west half in order to pass the Nash. As the Chrysler was overtaking the Nash and within 20-30 feet of it the Nash suddenly and without warning turned left onto the left or west half of the pavement, in front of the Chrysler, starting to turn into Blue River Road. The Nash did not complete its turn into the intersecting road but turned north again and the collision occurred on No. 71.
Plaintiff's petition charged defendant with negligence as follows: (a) excessive speed; (b) failure to keep a lookout; (c) failure to give any warning of the approach of his automobile; (d) failure to keep his automobile under proper and reasonable control; (e) failure to stop or slow his automobile after he saw or could have seen the Nash; (f) humanitarian failure to slack speed, sound a warning, swerve, slow, or stop; (g) operating the Chrysler while under the influence of intoxicating liquors; (h) 'that defendant negligently and carelessly caused, allowed and permitted the front end of his automobile to collide with the rear of the automobile in which plaintiff was riding.'
GIVEN INSTRUCTION NO. 1:
'The Court instructs the jury that if you find and believe from all the evidence in this case that plaintiff, Gertie Zoellers Witherspoon, was a passenger in an automobile being driven in a northwesterly direction on Highway 71, a public highway and thoroughfare in Jackson County, Missouri, and that plaintiff was at all times in the exercise of ordinary care for her own safety, if you so find, and if you further find that the defendant, Richard Guttierez, was driving an automobile in a northwesterly direction on said Highway 71, if you so find, and if you further find that defendant was at all times to the rear of the automobile in which plaintiff was riding, if you so find, and if you further find that the automobile in which plaintiff was riding started to make a left hand turn onto Blue River Road from Highway 71, if you so find, and if you further find that thereafter the automobile in which plaintiff was riding turned back onto Highway 71 and was proceeding parallel to said highway, if you so find, and if you further find that defendant thereafter overtook the automobile in which plaintiff was riding, if you so find, and if you further find that defendant thereafter allowed his automobile to run into and collide with the rear end of the automobile in which plaintiff was riding, if you so find, and if you further find that in allowing his automobile to collide with the rear end of the automobile in which plaintiff was riding, if so, defendant failed to exercise the highest degree of care and was thereby negligent, if you so find, and if you further find that said negligence, if any, on the part of defendant caused or contributed to cause defendant's automobile to collide with the automobile in which plaintiff was riding and plaintiff was thereby injured, if you so find, then your verdict must be for the plaintiff. '
Assignments a, b, c, d, e, f and g were not submitted to the jury by instructions.
Defendant urges that Instruction No. 1 erroneously submits the so-called rear-end collision 'doctrine.' Defendant claims that plaintiff's evidence, viewed in the light most favorable to plaintiff, fails to satisfy certain requirements or that 'doctrine,' and that No. 1 fails to require a finding of facts essential to a recovery thereunder. Defendant quotes the definition of the 'doctrine' given in Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, loc. cit. 362, one requirement of which is that plaintiff have his vehicle 'in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding.' Defendant contends that plaintiff's evidence does not show, and that No. 1 does not require a finding, that the Nash in which plaintiff was a passenger was in a portion of the highway where it should have been or was entitled to be in view of the course in which it was proceeding; that plaintiff's evidence shows that the Nash made a left-hand turn onto the intersecting road and returned to the highway without stopping, and that the Nash 'could not have travelled north on Highway 71 more than the width of Blue River Road before the impact'; that this is not a typical rear-end collision case but is more nearly analogous to the situation where one car comes off an intersecting road and turns onto a main highway and then is hit from the rear by another vehicle traveling on the main highway; that the instant situation is not so simple and out of the ordinary course of events that to merely state the ultimate the facts constitutes an averment of specific negligence; that the rear-end collision 'doctrine' is an exception to the general rule that it is insufficient merely to state ultimate facts in a verdict-directing instruction, and that the doctrine should be strictly applied...
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