Ketchum ex rel. Ketchum v. Hausdorf ( 1977 )

CLEMENS, Presiding Judge.

Two-year-old plaintiff Michelle Ketchum was a passenger in a northbound, left-turning car driven by her sister Cynthia Root when it collided with the southbound car of defendant Dorothy Hausdorf. Co-plaintiff Curtis Ketchum is Michelle’s father and next friend. So far as pertinent here, the jury gave plaintiffs a $12,500 verdict against defendant Hausdorf.

Plaintiffs submitted their cases disjunc-tively on defendant’s statutory negligence in failing to sound a horn and also in passing another vehicle on the right. After the verdict defendant contended the evidence supported neither the failure-to-sound-a-horn submission nor the passing-on-the-right submission. The trial court agreed, set aside plaintiffs’ verdict and entered judgment for defendant. Plaintiffs appeal, asking us to order the trial court to reinstate their verdict and judgment.

A more detailed statement of the location: Plaintiffs’ ear was northbound in the inside lane of Lemay Perry Road (U.S. Highways Nos. 61-67), a four-lane highway at its intersection with Will Avenue, a two-lane east-west avenue in St. Louis County. Defendant Hausdorf was southbound in the outside lane of Lemay Ferry Road. The intersection is controlled by four green-amber-and-red overhead lights, one for each lane of Lemay Perry Road. There are no electric signals for left turns from Lemay Ferry Road but the north and southbound traffic lanes are governed by “left turn yield on green” traffic signs. All lights were green for both north and southbound traffic at times pertinent here.

The presence of a third vehicle is material. It was a large trash truck temporarily stopped in the inside, southbound lane of Lemay Ferry Road, waiting for and signaling a left-turn to the east into Will Avenue. As the truck’s driver waited, several cars passed him going both north and south on Lemay Ferry Road.

As plaintiffs’ driver drove north toward the intersection and defendant drove south toward it, the standing trash truck was in their line of sight and neither plaintiffs’ driver nor defendant Hausdorf saw each other.

The location and movement of the three vehicles is shown graphically:

As plaintiffs’ driver moved north toward the intersection she intended to turn left from Lemay Ferry Road into Will Avenue. She stopped in the inside lane and let southbound vehicles clear the intersection. When she saw no other cars coming south she began her left turn into Will Avenue, reaching a speed of five miles an hour. Meanwhile, defendant Hausdorf was driving south in the curb lane at 40 miles an hour. As said, because of the standing trash truck, neither driver saw the other until a moment before the collision. Both drivers knew defendant’s southbound car had the right-of-way over plaintiffs’ left-turning car. The collision occurred in defendant’s right-hand lane. Plaintiffs’ car was half-way out of the intersection, partly into Will Avenue. The right front quarter of defendant’s car struck the right side of plaintiffs’ car.

Plaintiffs’ verdict-directing instructions, with our emphasis added, required the jury to believe: “First, defendant Dorothy Hausdorf either; failed to sound her horn before starting to pass the truck, or passed the truck on the right side, and Second, defendant Dorothy Hausdorf’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff . . . .”

Defendant contends the evidence did not show a breach of her statutory duty either to sound a horn or not pass the truck on its right side. Plaintiffs concede our review is limited to those two submissions of statutory violations. Weathers v. Falstaff Brewing Corporation, 408 S.W.2d 668 [5] (Mo.App.1966).

In support of the first submission, plaintiffs point to the fact defendant passed the standing trash truck without sounding her horn and rely on the language of § 304.016.-1, RSMo. 1969: “(1) An operator or driver desiring to pass a vehicle shall sound horn before starting to pass . . . .” Plaintiffs’ sole citation is Hill v. Torrey, 320 S.W.2d 594 (Mo.App. 1959), where the issue was plaintiff’s negligence as a matter of law. Because of widely divergent facts Hill does not aid us in construing the cited statutory command. There, the plaintiff without honking overtook a moving tractor-trailer on a two-lane road and collided with a preceding automobile. By contrast, we note the more factually similar case of Jones v. Southwest Pump and Machinery Co., 227 Mo.App. 990, 60 S.W.2d 754 [4] (1933). There, defendant was parked partially on the right side of a two-lane road and as plaintiff began passing without honking, defendant moved out in front of and into a collision with plaintiff’s passing car. In denying the applicability of the comparable statute quoted above the court ruled: “The very wording of this statute shows that it has to do with the passing by a rear vehicle of a moving vehicle ahead in the line of traffic. The statute provides a means for an overtaking car to pass a moving overtaken car where the latter is moving in the line of traffic ahead.”

We reach the same conclusion. This rule of the road was established decades ago¹ when roads were single-laned and overtaking a moving vehicle required warning to the overtaken driver to remain on his own right-hand side of the road. We hold the quoted statute does not apply to the situation here so as to require defendant to sound a horn when passing a standing vehicle in another lane of traffic.

Plaintiffs’ evidence did not make a sub-missible case on the submitted issue of defendant failing to sound her horn. We move on to the other submission, passing the trash truck on its right side.

As noted, plaintiffs disjunctively directed the jury to find for plaintiffs if defendant negligently “passed the truck on the right.” To avoid passing the truck on its right side defendant would either have to stop (despite the open lane ahead showing a green light) or she would have to turn left into the northbound lane. Even assuming the statutory limitation on passing applies to a multi-lane highway, § 304.016.2 (1) permits passing on the right “when the vehicle overtaken is making or about to make a left turn.” The trash truck was doing just that, so defendant breached no duty to plaintiffs when she passed the truck on its right side.

We conclude plaintiffs did not make a submissible case on either submitted ground. The trial court would have been justified in directing a verdict for the defendant. Not having done so, the court properly granted defendant’s after-trial motion for judgment.

Judgment affirmed.

McMILLIAN, J., concurs. RENDLEN, J., dissents in separate opinion.

1 . See § 85.16, RSMo. 1909, and ensuing revisions for comparable rule of the road.