Woosley v. State Auto. Mut. Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: DOWD
• Citation: Woosley v. State Auto. Mut. Ins. Co., 600 S.W.2d 210 (Mo. App. 1980)
• Decision Date: 27 May 1980
• Docket Number: No. 41525,41525
• Parties: Ronald L. WOOSLEY, Plaintiff-Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE CO., Defendant-Respondent.

Page 210

600 S.W.2d 210

Ronald L. WOOSLEY, Plaintiff-Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE CO., Defendant-Respondent.

No. 41525.

Missouri Court of Appeals, Eastern District, Division Three.

May 27, 1980.

Mark I. Bronson, St. Louis, for plaintiff-appellant.

Robert A. Wulff, St. Louis, for defendant-respondent.

DOWD, Presiding Judge.

Appellant sued respondent upon the uninsured motorist provision of appellant's automobile liability insurance policy with respondent. Appellant's suit was based upon a vehicular collision with Ronald Kitchen on September 19, 1972. The trial court granted respondent a directed verdict at the close of appellant's evidence.

Appellant contends the trial court erred in directing an adverse judgment because appellant's evidence did make a submissible case of Kitchen's negligence grounded upon appellant's pleaded theories of excessive speed, failure to keep a careful lookout, to yield the right of way, to slacken speed, to swerve, to sound a signal or warning, or to stop and humanitarian negligence in failing to stop, swerve, slacken speed, or sound a warning.

Appellant did not file a post-trial motion in the lower court, and his appellate allegations of error are, therefore, not preserved. O'Brien v. Sun Life Assur. Co., 589 S.W.2d 629, 631(3) (Mo.App.1979); McMahon v. Charles Schulze, Inc., 483 S.W.2d 666, 667-68(2) (Mo.App.1972). Appellant did, however, seek review under the plain error doctrine during oral argument. If appellant made a submissible case, the trial court's direction of a verdict against appellant would constitute a plain error affecting substantial rights and a manifest injustice. Williams v. Southern Pacific R. R., 338 S.W.2d 882, 883-84(3-4) Mo.; McMahon v. Charles Schulze, Inc., supra ; Rule 84.13(c). We therefore turn to the evidence to determine whether appellant made a submissible case.

The collision at issue occurred at the intersection of Holman Road, which runs generally north/south and Highway 24, which runs generally east/west in Moberly. Holman Road ends at Highway 24 and forms a "Y" type intersection. A stop sign for traffic on the left fork of Holman Road is on the island between the left and right forks of Holman Road. As it travels toward the intersection to the east, Highway 24 is on a slight downgrade and has no traffic signal or sign at Holman Road. Highway 24 curves gradually and slopingly to the left as it travels east toward and past Holman Road. One witness described Highway 24 as a banked curve where it intersects with Holman Road. Holman Road joins Highway 24 level with Highway 24 where the two roads intersect. According to some of the witnesses, the driver of a vehicle stopped at Highway 24 on Holman Road has an unobstructed view 250 to 300 feet, perhaps more, to the left to the crest of the slight incline. Highway 24 has shoulders of 6 to 8 feet.

At trial, appellant testified he was driving north on Holman Road and stopped at the stop sign in preparation to turn onto Highway 24 but could not see because of debris, limbs, and little bushes on both sides of Holman Road. He drove slowly forward to the edge of Highway 24 and stopped where he could see both directions. When he looked to his left, appellant saw an approaching, east-bound vehicle at a distance of approximately 600 feet. Appellant saw no other east-bound vehicles and was unable to estimate the speed of the vehicle he saw, but it appeared to be driving normal speed. He did not notice whether the east-bound vehicle was an automobile or a truck. Appellant then looked to his right and saw nothing. Appellant proceeded to turn left onto west-bound Highway 24 at a gradual pace. He estimated he was stopped at the edge of the roadway for one second before beginning his turn. As he made his turn and as appellant's front wheels crossed the center of the highway appellant looked sharply to his left when he heard "squeeling tires sliding or something" and saw Kitchen's vehicle 5 to 10 feet away from appellant's vehicle, headed "straight to the driver's door of my car." Appellant estimated 5 to 10 seconds had passed between the time he left the edge of the roadway and saw Kitchen's vehicle. Appellant remembers nothing more of the accident. He does not remember the impact.

During cross-examination appellant was questioned about a portion of appellant's deposition in which appellant stated that when he looked to his left before beginning his turn, he saw "a car, at the top, about six hundred feet." ¹

Ronald Kitchen's deposition was read at trial. Kitchen testified he was going east on Highway 24 at approximately 25 or 30 miles per hour in his pick-up truck when he collided with appellant's automobile as it drove off Holman Road onto Highway 24 from Kitchen's right. Although Highway 24 has a banked curve for approximately 100 feet as it approaches Holman Road from the west, no hill crest obstructs the view. Kitchen did not see appellant's automobile stop at the stop sign for Holman Road. Kitchen first saw appellant's vehicle at the edge of the highway. Appellant's automobile was moving and about 2 or 3 car-lengths away from Kitchen. A pick-up truck was approaching from Holman Road from the east on Highway 24. Appellant's vehicle accelerated onto the highway in front of Kitchen's lane of traffic at about 25 to 30 miles per hour some 2 to 3, perhaps 4 car-lengths ahead of Kitchen. Kitchen hit his brakes which took hold, but did not remember whether he took other evasive action. The left front fender of Kitchen's truck hit the left fender of appellant's automobile when the vehicles were in Kitchen's lane. Both vehicles spun around somewhat and Kitchen's truck came to rest crossways in the center of the highway, facing north. Appellant's vehicle came to rest in the westbound lane, facing west.

The deposition of a witness to the accident, Elmer Sullivan, was also read into evidence at trial. The witness had been driving west on Highway 24 and was 50 feet away from the intersection when he first saw appellant's automobile approaching Highway 24 on Holman Road from the south, also about 50 feet from the intersection. Kitchen's east-bound pick-up truck was 45 to 50 feet from the intersection at that time. Appellant was "coming pretty fast to stop", did not pause or stop, but "shot right on out" onto Highway 24. Sullivan estimated both appellant's and Kitchen's speeds at 35 to 40 miles per hour. The truck was at most 10 to 20 feet from the point of impact when the automobile pulled on Highway 24. Sullivan stopped his vehicle when he realized appellant and...