Wolfe v. Harms, 51641

CourtUnited States State Supreme Court of Missouri
Citation413 S.W.2d 204
Decision Date13 March 1967
Docket NumberNo. 1,No. 51641,51641,1
PartiesAlmeda WOLFE and Earl Wolfe, Respondents, v. Eula Mae HARMS, Administratrix of the Estate of Velmar John Harms, deceased, Charles Kast, d/b/a M.F.A. Service Station, Charles Mehls and Southwest Freight Lines, Inc., Appellants

William F. Brown, James T. Buckley, Sedalia, for plaintiffs-respondents.

John R. Gibson, Morrison, Hecker, Cozad & Morrison, Kansas City, Wesner, Wesner & Meyer, Sedalia, for defendant-appellant, Eula Mae Harms, Admx. of Estate of Velmar John Harms, Decd.

John R. Gibson, Morrison, Hecker, Cozad & Morrison, Kansas City, Wesner, Wesner & Meyer, Sedalia, for defendant-appellant, Charles Kast.

Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, Lamm, Barnett, Crawford & Barnes, Sedalia, for defendants-appellants, Charles Mehls and Southwest Freight Lines, Inc.

HIGGINS, Commissioner.

Action for damages for personal injuries in which verdict and judgment were for plaintiffs, Almeda Wolfe and Earl Wolfe, for $75,000 and $13,500, respectively, against all defendants. Defendants Mehls and Southwest Freight Lines, Inc., were denied a new trial; defendants Harms and Kast were awarded a new trial on liability only, and the verdict in favor of plaintiffs against Mehls and Southwest was ordered held in abeyance pending the retrial of liability of Harms and Kast. All defendants have appealed.

On September 25, 1965, Earl Wolfe and his wife, Almeda, lived on the Velmar Harms farm five miles south of Sedalia, Missouri. Mrs. Wolfe and Mrs. Harms made an arrangement by telephone for Mr. Harms to ride with the Wolfes in their car to Bothwell Hospital in Sedalia to see Mrs. Wolfe's brother. Mrs. Harms was to stay at home and care for the Wolfe children. Instead of the arrangement made, Mr. Harms suggested that they go in a Dodge automobile owned by Roy Ford and they left the Harms home in the Dodge with Mr. Harms driving. They were at the hospital about forty-five minutes and, upon leaving, were to go to the M.F.A. station to deliver the Dodge to Mr. Ford. They were to use Mr. Harms's truck for the remainder of the trip home. Mr. Harms was driving the Dodge, Mr Wolfe was on the right side of the front seat and Mrs. Wolfe was in the middle of the front seat. They proceeded in a southwesterly direction on Clinton Road toward its intersection with U.S. Highway 65 just south of the city limit of Sedalia. Highway 65 there is a 24-foot pavement and runs generally north and south without curves or other obstructions to vision. It is a through street protected by stop signs at intersecting streets including Clinton Road and 32nd Street which also intersects Highway 65 at this point but at right angles. The M.F.A. station is on the southwest corner of the intersection. The Dodge arrived at the intersection at about 8:30 P.M. It was dark or nearly so; Harms's headlights were lighted, as were lights of businesses along the highway. The weather was fair and the streets were dry.

According to the Wolfes, Harms stopped the Dodge five or six feet northeast or back of the stop sign located on the right side of Clinton some thirty-six feet from the east edge of the paved portion of Highway 65. Harms asked Earl Wolfe, 'Is it clear your way?' and Earl replied, 'It is clear my way, but you have got two cars coming your way.' While they were stopped there two cars passed in front of them going north on 65, and then the clearance lights of the Southwest Freight Lines truck, driven by Mehls, were observed as the truck came over a slight hill some 932 feet south of the intersection. They then moved up to the edge of the pavement and stopped again. It appeared that Harms also looked in the direction of the truck, plaintiffs called his attention to the truck and, prior to the second stop made by Harms, Earl said, 'You better hold it. Here comes a truck.' So far as plaintiffs knew, Harms's hearing was all right. Harms then proceeded a short distance to his second stop or 'almost to a dead stop' at the edge of the pavement and then proceeded to cross the highway going slowly. The truck appeared to Mrs. Wolfe to be going rather fast and Earl judged its speed to be at least 50 miles per hour and it did not slow. He judged the speed to be at least 40 miles per hour in the intersection. When the car entered the highway, the truck was said to be in front of a Texaco station which Earl estimated to be 200 feet from where the vehicles came into collision and which measured 420 feet from the impact. Mrs. Wolfe estimated the speed of the Dodge at five to ten miles per hour as it proceeded across 65, and Earl judged its speed at five or six miles per hour. Both thought Harms could have stopped before crossing the northbound lane of 65. Plaintiffs did not warn or caution Harms further. They thought he was aware of the truck and that he would get them across the highway safely. According to plaintiffs the truck crowded the center line of the road from back by the Texaco station and then crossed the center line 30 to 40 feet south of the Dodge. 'It looked like it tried to head us off.' They were blinded by the truck's lights but saw the collision as occurring in the west or southbound lane of the highway. Mrs. Wolfe said the Dodge was straddling the center line when struck by the truck. Earl, although having made a similar statement the day after the accident, visited the scene four days after the accident and, upon noting a skid mark which crossed the center line 30 to 40 feet south of the impact, testified that the impact was in the southbound lane. The impact was to the left side near the center of the Dodge and to the left front corner of the truck. The damage to the Dodge was most extensive between the fenders on the left side. The right side of the front of the truck was not damaged. Neither of the plaintiffs heard any warning from the truck.

The truck was a tractor-trailer owned and driven by defendant Charles Mehls under lease to defendant Southwest Freight Lines, Inc. The tractor weighed 13,300 pounds, the weight of the trailer was not known, and it was loaded with 28,000 pounds net weight of beef, a total weight of something in excess of 41,300. Mehls said he left Springfield, Missouri, around 6 P.M. and traveled at speeds varying between 40 and 50 miles an hour. His lights were lighted and, as he drove down the incline on Highway 65 toward its intersection with Clinton Road, his speed was 30 to 40 miles per hour. He was familiar with the road and the several businesses, entries, and streets in the area leading to the intersection. He saw the Harms car approaching the highway from the northeast on Clinton Road. He did not recall where his truck was when he first saw the car and recalled in his deposition only that he was 'medium distance * * * about three hundred to ten feet,' from the car as it entered the highway. He testified that the car started out slowly when he was 80 to 120 feet from it. He used his right hand to pull the lever which operated the brakes on the rear tandem dual wheels of the trailer, stepped on the foot brakes of his tractor, and attempted to steer to the left with his left hand. He did not sound his horn. According to him, the collision occurred on the right-hand side of the center line and the truck thereafter swerved to the left and off the highway.

The truck proceeded on northwesterly and came to rest headed into an embankment on the west side of the highway near the Holiday Inn with the right rear duals on the highway. The Dodge was farther north a short distance and to the right of the truck.

John Mergen went to work at the M.F.A. station at 2 P.M. He was an employee of Harms and defendant Charles Kast who were partners doing business on the southwest corner of the intersection as M.F.A. Service Station. He saw Harms at the station that afternoon but did not recall seeing the Dodge or hearing any statements about it. He was standing in front of the station servicing a car when he heard air brakes go on and looked up to see the Southwest truck pass in front of the station at a speed of around 40 miles per hour. He did not see the Dodge until the impact which occurred at a point behind the left front wheel and at a point when the front end of the Dodge was 'a foot or two on the left side of the center line.'

Lorren Griffith, a truck driver, was driving a car behind the truck and estimated its speed at 30 miles per hour on the incline and 25 miles per hour at impact. He heard the truck's brakes go on when it was about 100 feet from the intersection. 'It looked like, about the time the impact come, the car jumped right square in front of the truck.'

Victor Stohr was driving southbound on Highway 65. He saw Harms approach on Clinton Road and judged his speed at 10 to 20 miles per hour. Harms slowed down in the last 20 feet before the slab but did not stop. He judged the truck's speed at 30 to 35 miles per hour and placed the collision east of the center line.

Officer Charles Knapp placed a dot on a plat of the area at a point a foot east of the center line to show a place where he found debris from the collision. He said it was possible for that debris to have come off the rear as well as from the front of the Dodge. He saw two sets of skid marks which crossed the highway and marks from the rear wheels of the trailer led back 22 feet to the debris and 97 feet beyond to the south.

The collision resulted in the death of Velmar Harms and serious injuries to Earl and Almeda Wolfe.

Appellants Mehls and Southwest contend that plaintiffs failed to make a submissible case against them for the reason that the evidence failed to show that Mehls was driving at an excessive speed or on the wrong side of the road, or failed to sound a warning, and that such acts were the proximate cause of plaintiffs' injuries....

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