Wood v. Ezell, 7881
| Decision Date | 23 January 1961 |
| Docket Number | No. 7881,7881 |
| Citation | 342 S.W.2d 503 |
| Parties | Anthony B. WOOD, Plaintiff-Appellant, v. Shirley Ann EZELL (Johnson), Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Hyde & Purcell, Poplar Bluff, for plaintiff-appellant.
Bloodworth & Bloodworth, Poplar Bluff, for defendant-respondent.
A Fourth of July vacation collision tragedy had reached this court in the form of an appeal by the plaintiff from a verdict of $15,000 rendered on defendant's humanitarian negligence counterclaim.
The head-on collision occurred on Highway 67 in Butler County at a place where the 22-foot two-lane highway runs straight and level for several miles between gravel or all-weather shoulders some 10-12 feet in width. It was in the middle of a clear day and the concrete was dry, although the shoulders were damp. The collision occurred approximately in front of an establishment belonging to one Connie Creach, who there had his home, garage, junk yard, and car lot. His place of business had two driveways. Across the road on the east was another business place with a driveway. Plaintiff-appellant Wood was driving south in his 1957 DeSoto, in good condition and with good brakes. He said he was going 60 mph (the only stopping distance proved). With him in the car were his wife and three children, ages five, ten, and twelve. In the front seat beside him was his wife and between them one child. In the back seat the other two children were asleep. His lane in front (the west one) was open, but some cars, two or more, were coming up from the south meeting him, but in the opposite lane.
Defendant-respondent Ezell (since married and now Johnson) was driving a smaller English-made car called a Prefect. Beside her was a friend, one Lambing, owner of the Prefect, who died in the crash. The Prefect 'came up from behind' the two or more cars, which were slowing down somewhere along in front of the Creach place. She (defendant, driver of the Prefect) pulled out to her left, in the west lane and in the path of plaintiff's car. Plaintiff was then, according to defendant's evidence, which we must take, 'approximately around' 200 yards to the north. The Prefect, at some point of time we do not have, started angling toward the shoulder on its left. The DeSoto, also at some point we do not know exactly, applied its brakes and also angled to the shoulder on its right. The cars met about half on and half off the pavement. The front of the DeSoto took most of the force, and the right front corner of the Prefect apparently was the approximate point of its impact. Such was the force of the impact that the cars ended up on the shoulder back south some 61 to 64 feet in the direction from which the Prefect was coming. The DeSoto left skid marks angling from the place of impact back to the north some 41 feet.
Plaintiff-appellant Wood and his wife were witnesses. Defendant testified that because of shock or injuries she had no memory of the occurrence, and her case depends largely upon the testimony of the witness Creach.
As to pleadings: Plaintiff-appellant pleaded and submitted primary negligence in crossing to and driving on the left side. Defendant-respondent, in her counterclaim, pleaded that the collision was caused by plaintiff's negligence in several respects, including failure to drive at a rate of speed which was prudent under the circumstances, and humanitarian negligence in failure to stop or slacken speed. She submitted her counterclaim on humanitarian negligence, however, in failure to stop and slacken speed, in the conjunctive.
It is contended that the testimony of the witness Creach has no probative value in respect to speed, slackening of speed, and distance because (a) it was contradictory and the contradiction was unexplained and (b) it was contrary to the physical facts.
The witness was standing in front of his garage and near his south driveway. The Prefect (the car driven by defendant-respondent Johnson) came up the road as the two cars (in front of it) were slowing down. It pulled out into the west (its left) lane, presumably to pass. The witness saw the plaintiff-appellant's DeSoto coming south on its own west lane. When the Prefect pulled out, the DeSoto was distant-- The Prefect 'apparently went to the [west] shoulder' and its left side was off the concrete and onto the shoulder about five feet at an angle when the collision occurred. The oncoming DeSoto was traveling 'my estimation was seventy to eighty miles an hour.' On cross-examination the witness, in identifying a picture (showing the area), testified that 'right at that present there was cars and things on there.' He said again that when the Prefect swerved out of its lane the DeSoto was approximately 200 yards up the road. The witness admitted that he had been interviewed by plaintiff's counsel some eight days after the occurrence.
Then later:
He then stated that the Prefect traveled, from the time it pulled out until the collision, 50 feet and that his estimate of the speed was 15 or 20 mph; that he was standing there 'looking at it, and the other one, glancing backwards and forwards.'
He said he did not recall telling plaintiff's counsel (in that previous statement) that he did not get any impression as to how fast the DeSoto was going but he wouldn't say he didn't say it. 'If I told you, I said it.'
The witness repeated that he did not remember making the statement, but
'Q. Well, if you did tell me that, was it true then? A. Yes, sir, it could have been true.
He further stated that although he did not observe that the DeSoto slackened its speed he was not saying that it didn't slacken. And as a matter of fact he said he saw the skid marks which it had made; that he couldn't watch both cars at the same time; that when the Prefect cut out, 'why I saw this other car coming in the distance, and then I just held myself * * * I thought, I hope it makes it, and it didn't.'
Plaintiff invokes the rule that contradictory statements of a witness which are unexplained have no probative value because it is speculative as to which is true. 1 The testimony of the witness is not contradictory because he said he didn't notice the DeSoto slow down or slacken speed, although at the same time he admitted that it left skid tracks. He was dividing his attention between two cars in an occurrence which covered a short period of time in which he was straining ('I hope it makes it') for the Prefect to get on the shoulder. Under such circumstances it was not unbelievable that he did not notice any slackening. In quick-moving and exciting events, even such as, for instance, horse racing, it often seems to the urging spectator that one particular horse is barely moving while another moves up with lightning speed. However, the evidence, standing by itself, that he didn't 'notice' the DeSoto slowed its speed has little probative value, but it is not contradictory.
As to whether the witness told plaintiff's counsel in an out-of-court statement that the DeSoto was 200 feet (instead of yards) up the road:
Of course, previous out-of-court statements would not destroy the probative value of the witness's sworn evidence, although it might affect his credibility. 2 In this respect, however, the witness had a ready explanation in that (so he said) he had not stepped the distance at the time of his alleged out-of-court statement. Afterwards he did step it. His statement in response to several questions to the effect that 'if it is on there it is true' we think is, or could at least be interpreted to mean, that if it is written there (which he did not admit), then he said it, rather than an adoption of a statement of facts contrary to what he testified.
The statement that the DeSoto traveled 200 yards (600 feet) at a speed of 70-80 mph while the Prefect traveled 50 feet at 15-20 mph is obviously unbelievable in respect to the comparative speeds and distances traveled by the two cars and approaches upon the rule which requires the rejection of testimony which is contrary to known and accepted physical laws. 3 But it must be remembered that the witness's ideas were only estimates of speed and distance formed in the time of stress. Also to be borne in mind is that in some instances his testimony was tempered by the qualification of 'approximately around two hundred yards.' The distance the Ford Prefect traveled was necessarily an estimate and an approximation, and in this respect it is to be noted that there is no fixed point to mark the place where it can be said that the car 'pulled out' of its lane into the other. Although we agree with appellant's contention that estimates can become so completely far-fetched as to deny their validity even as estimates, the general rule is that courts do not hold the parties or the witnesses too closely to estimates of speed, distances or time in an emergency situation. 4 The fact that the witness used the word 'approximately' does not deprive his evidence of substantiality. 5 The jury was not bound to believe the witness's testimony as to the speed of either car, and it must be remembered that the stopping distance was based on plaintiff's admitted speed, and that the place where plaintiff's car was on the road at the time defendant 'pulled out' was located in reference to the witness's upper driveway. We are of the opinion that the...
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