Leonard v. Gordon's Transport, Inc.

575 S.W.2d 244, 1978 Mo. App. LEXIS 2395
CourtMissouri Court of Appeals
DecidedNovember 21, 1978
DocketNos. 39291, 39292 and 39293
StatusPublished
Cited by4 cases

This text of 575 S.W.2d 244 (Leonard v. Gordon's Transport, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leonard v. Gordon's Transport, Inc., 575 S.W.2d 244, 1978 Mo. App. LEXIS 2395 (Mo. Ct. App. 1978).

Opinion

WEIER, Judge.

In this lawsuit arising out of a collision on Interstate Highway 270 involving four cars, a jury returned a verdict against all four defendants and in favor of plaintiff Jerry Leonard in the sum of $25,000 and in favor of plaintiff George Leonard in the sum of $8,000. The trial court entered judgment in accordance with the jury verdict and later overruled all motions for judgment notwithstanding the verdict and for new trial. All four defendants appealed but the dispute between plaintiffs and the two defendants, Gubernik and Mughal, was [246]*246settled as a result of an appellate settlement conference. The appeal of defendants Gordon’s Transport, Inc., and Augustin remains. Gordon’s owned the car driven by Augustin, who at the time of the accident was in the course of his employment with Gordon’s.

These two remaining defendants contend their motion for directed verdict should have been sustained because there was insufficient evidence that they were negligent. They also claim error in the giving of two verdict-directing instructions. These points center around Augustin’s alleged failure to keep a careful lookout and his alleged violation of a statute prohibiting driving in the left-hand lane when not passing other vehicles. We affirm.

The evidence indicates, and all parties agree, that plaintiffs were in no way at fault in causing this accident. On June 25, 1974, the car in which plaintiffs were riding was proceeding south on Highway 1-270 (then 1-244) near Olive Street Road when it was struck head on by the car driven by Augustin. At this point Highway 270 was a six-lane highway with three lanes north bound and three lanes south bound separated by a median strip. Augustin had been driving north in the inside left lane of the highway when his automobile came into collision with a car driven by Mughal (which may or may not have been hit by a car driven by Gubernik) causing the Augus-tin car to go across the grassy median and into the front of plaintiffs’ south-bound car. Plaintiffs had no time to avoid the collision.

When the collision occurred at about three o’clock in the afternoon, traffic was described as “fairly heavy,” “pretty crowded,” “moderate, normal,” “normal,” and “a little heavier than normal.” David Gene Buehrer, not involved in the collision, witnessed the events leading up to the accident. He was traveling north in the inside left lane of the north-bound lanes when he observed a gold colored sports car (a Mercedes driven by Gubernik) come up behind him. Buehrer moved his car over to the center north-bound lane and Gubernik’s car passed him on his left. Gubernik then moved his car to the center lane in front of Buehrer and speeded up to pass a tan car (driven by Augustin), which was traveling in the inside left lane. A light blue station wagon (driven by Mughal) was ahead of Gubernik’s car in the center lane. Mughal had passed Augustin on Augustin’s right a short time before just south of the Olive Street Road overpass. When Mughal passed Augustin, Augustin was going between fifty and fifty-five miles per hour and Mughal was going about five miles per hour faster. As the distance between Gu-bernik’s car and Mughal’s car closed, Guber-nik attempted to move into the inside left lane again to pass the blue car. In so doing, he attempted to pull in front of the tan car. The instant that the gold colored car attempted to move in front of the tan car, the blue car skidded out of control into the extreme left lane. Mughal admitted he slowed his car from fifty miles an hour to fifteen or twenty miles an hour in a very short distance. He did this because in his words “at a distance [ahead] all the traffic was almost blocked and stopped.” Continuing, he related that Gubernik’s car, “somehow got through [between Mughal’s blue car and Augustin’s tan car] but I could not see how he went to get through there because the tan car at the same time collided with the blue sedan.” Gubernik’s car struck Mughal’s car or came close to hitting it. Gubernik then drove onto the grassy median and eventually stopped his car. The right front fender of Augustin’s car struck the left front fender of Mughal’s car. Then Augustin’s car crossed the median and struck plaintiff’s car head on. As soon as Augustin’s car hit Mughal’s car, Augustin was knocked unconscious. Buehrer estimated the speed of both Augustin’s and Mughal’s cars right before the accident to be fifty miles an hour, and the speed of Gubernik’s car to be fifty-five to sixty miles an hour.

Buehrer said there was only about one car length between Augustin’s car and Mu-ghal’s car when Gubernik’s car went between them and that Augustin did not have time to avoid the collision with Mughal. However, Gubernik said that when he first [247]*247noticed Mughal’s car it was ten to fifteen car lengths ahead of him; that when he started to move into the inside left lane, Mughal was about ten car lengths ahead of him and Augustin was thirteen to fifteen car lengths behind Mughal and three or four car lengths behind Gubernik. Guber-nik then saw Mughal slam on his brakes (“I saw the tires smoking and the car go into a slide”) and come into the extreme left lane forcing Gubernik off the road and onto the median. In addition Mughal testified his car was hit twice and that the time between the first impact with Gubernik and the second impact with Augustin was “close to two seconds” or “a few” seconds. Augustin said he never saw Gubernik’s gold colored car at any time. He also testified: “I didn’t see the blue station wagon until he come in front of me directly across the path of my car.”

As Gubernik moved from the center lane to the inside north-bound lane, he “had observed some construction work being done in the right-hand lane towards the Page exit and a back-up of traffic on 244.” At that time he “observed the blue station wagon more or less making a panic stop to avoid this traffic tie-up that was imminently ahead.” “All I could really see was it looked like one of these big flashing arrows pointing to the left that they put on top of a truck or something like that.” Mughal said he saw “almost a traffic block” but it was only “later on” that he saw what was blocking traffic. Buehrer saw road construction and people working on the shoulder after he had left the accident but he did not see it before the accident. Augustin said he never saw any evidence of any construction work. The accident took place one hundred to one hundred and fifty feet north of the Olive Street Road overpass. The truck with the flashing arrow was about a half mile or more north of the overpass ahead of the defendants at the time of the accident.

With respect to the two remaining defendants, plaintiffs’ two identical verdict-directing instructions hypothesized that defendants Gordon’s Transport, Inc., and Au-gustin either “failed to keep a careful lookout, or operated their automobile in the left-hand lane of traffic when they were not overtaking and passing other vehicles . . ."

Defendants Gordon’s and Augustin first contend the trial court erred in overruling their motion for a directed verdict at the close of all the evidence because the evidence was insufficient to permit a finding that these defendants were negligent in any respect. In particular, defendants submit that there was no evidence from which the jury could reasonably find that Augustin was negligent in failing to keep a careful lookout or that this alleged omission was a proximate cause of the collision (i. e. that Augustin could not have avoided the accident had he been looking).

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Cite This Page — Counsel Stack

Bluebook (online)
575 S.W.2d 244, 1978 Mo. App. LEXIS 2395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-v-gordons-transport-inc-moctapp-1978.