Clifton v. Caraker

• Decision Date: 07 June 1932
• Docket Number: No. 22134.,22134.
• Citation: 50 S.W.2d 758
• Court: Missouri Court of Appeals
• Parties: CLIFTON v. CARAKER et al.<SMALL><SUP>*</SUP></SMALL>

50 S.W.2d 758

CLIFTON v. CARAKER et al.^*

No. 22134.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Rehearing Denied June 21, 1932.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by Roscoe Clifton against John Caraker and others. From a judgment in favor of plaintiff, defendants appeal.

Reversed and remanded.

Dearmont & Russell, of Cape Girardeau, and Harry C. Blanton, of Sikeston, for appellants.

Hines & Hines, of Jackson, and Ward & Reeves, of Caruthersville, for respondent.

BECKER, J.

Plaintiff suffered the loss of his left arm as the result of a collision between an automobile truck on which he was riding and a truck of the defendants, and in his action for damages obtained a judgment against the defendants in the sum of $4,233.34. Defendants in due course appeal.

It appears that the plaintiff filed his suit originally against the defendants in the present action and also against one Linus Penzel, Penzel being the owner of the truck on which plaintiff was riding at the time of the collision, and which was being operated by Penzel's chauffeur. To this original action the defendant Penzel for his answer filed a general denial. A short time after the filing of Penzel's answer the plaintiff filed an amended petition in which he omitted Penzel as a defendant, and also omitted therefrom the charges of negligence which were in the original petition against Penzel, and pleaded that the injuries and damages which he sustained by reason of the collision were solely caused by the negligence of the several defendants, Carakers, copartners doing business under the name of South Sprigg Street Garage.

The amended petition contains the following assignments of negligence: (1) Driving defendants' truck at a high, excessive, and dangerous rate of speed. (2) Operating defendants' truck on the wrong side of the road. (3) Operating defendants' truck at a dangerous rate of speed taking into consideration the winding road and the locations and conditions thereof.

The defendants' answer to the amended petition was a general denial, and pleaded further that plaintiff's injuries, if any, (1) were the result of his own negligence and the negligence of Linus Penzel; (2) were the result of the negligence of the driver of Penzel's truck in that he was driving the same at an excessive rate of speed and was driving on the wrong side of the road, and operated the car at an excessive rate of speed taking into consideration the curves and locations of the road; (3) that plaintiff, in his position on the Penzel truck, saw or could have seen the negligence of the driver of the Penzel truck in time to protest and to warn him of the approach of defendants' truck, and that such failure was the sole cause of the injuries; (4) that the plaintiff could have ridden on the right-hand side of the truck instead of on the left-hand side and have been free from danger; and (5) that plaintiff had made a settlement with Linus Penzel whereby plaintiff had been paid "a sum of money in settlement of his injuries," which settlement is a bar to plaintiff's action.

The reply admitted a settlement with Penzel, but denied it was a settlement of "the whole case" and that by such settlement plaintiff had released said Linus Penzel only, as he was authorized to do under section 3268, Rev. Stat. of Mo. 1929.

The record discloses that in the summer of 1930 State Highway No. 61 was under construction between Jackson and Cape Girardeau, and that the defendants were engaged in hauling cement by truck from Cape Girardeau to the point of construction on said highway, and the truck, after each load, would return empty to Cape Girardeau for another load. The defendants' truck in question had six wheels, and the bed of the truck was a flat heavy platform 12 feet long and 6 feet wide, which came to within a foot of the cab.

Linus Penzel was also the owner of a truck which was used in hauling crushed rock from Cape Girardeau to the point of construction of the said highway.

On the 6th of August plaintiff and a friend were in Cape Girardeau and, desiring to return to their homes at Jackson, obtained permission from Fred Clifton, the driver of the Penzel truck, to ride with him and one Jess Morrison to the point near Jackson where Clifton was to deliver his truck load of rock. They started from Cape Girardeau with one and one-half tons of crushed rock, Clifton driving the truck, Morrison and Cunningham sitting beside him on the seat of the cab, and plaintiff sat on the body of the truck on the chat or crushed rock, on the left-hand side of the truck immediately to the rear of the cab, with his feet on the running board and his right hand holding around the top of the cab and his left hand dropped down and holding on the side of the truck. With plaintiff in this position the Penzel truck was driven westwardly from Cape Girardeau, on the north side along the gravel highway, and just beyond a point known as Williams Creek Bridge the truck approached a culvert, the road at this point curving on either side of the culvert. At the culvert one could see west along the road some two or three hundred yards, and to the east some two hundred feet.

According to the testimony adduced on behalf of plaintiff, as the truck in which he was riding approached this culvert the truck was traveling on the north or right-hand side of the road at a speed of some 15 or 20 miles per hour. Plaintiff, Morrison, and Cunningham, as well as Clifton, the driver of the truck in which they were riding, saw defendants' truck approaching the culvert coming downhill at a speed estimated from 35 to 40 miles per hour and being driven down the middle of the road. Clifton drove the Penzel truck as far to the right-hand side of the road as he could, driving the truck so that the right-hand wheels were off the graveled part of the road and within a foot of the edge on the north. The driver of defendants' truck continued to come down the grade at a speed of 35 to 40 miles per hour and in making the turn to go through the culvert ran the back part of his truck into and against the left side of the Penzel truck, mashing the fender and running board thereof, knocking off a standard on the truck body, and breaking off several cleats which held said standard, struck plaintiff's left hand and mashed it off. Defendants' truck, after the collision, continued 150 to 200 feet before it was brought to a stop. The truck in which plaintiff was riding was stopped within a short distance.

The defendant Edgar Caraker, who was driving defendants' truck, came back to the spot where plaintiff was lying in the road, and according to the testimony of witness Cunningham, Caraker stated that it was his fault and that he was running too fast. Witness Clifton testified that Caraker stated "he guessed he was driving too fast." And witness Morrison testified that Caraker said "he guessed it was his fault." Defendant Caraker, when on the stand, denied making such statements or admissions.

The defendants' testimony tended to show that the driver of defendants' truck approached the culvert, driving carefully and at a speed of 20 miles per hour, and that he was driving on the south or right-hand side of the highway; that the truck in which plaintiff was riding approached at a speed of not less than 35 miles per hour, traveling in the center of the highway. The testimony showed that the culvert, which was located just west of where the collision occurred, was 20 feet wide between the north and south side thereof, and that the gravel roadbed on the north side of the culvert is approximately 20 inches higher than on the south side, having a tendency to cause motor vehicles to use the south side of the road at that point.

The testimony for defendants further tended to show that there was a well-beaten rut on the south side of the road at this particular point and that the driver of defendants' truck, as he approached the culvert, got over to the right-hand or south side of the highway and just barely missed the south side of the culvert, but that the Penzel truck, traveling down the middle of the highway, crowded defendants' truck in such a manner that after the cabs of the respective trucks had passed each other the Penzel truck ran into the left side of the defendants' truck, resulting in injuries to plaintiff.

It is contended by defendants here on appeal that the trial court erred in not sustaining their demurrer offered at the close of the case because it appeared from the written settlement agreement between Linus Penzel and plaintiff, which was introduced in evidence, that plaintiff had therein settled his entire cause of action and therefore these present defendants, being but alleged joint tort feasors with Penzel, were thereby released.

This point is without merit. Section 3268, Rev. Stat. of Mo. 1929, among other things provides that it shall be lawful to compound, settle with, and discharge and release from further liability for such tort one or more joint tort-feasors for such sum as the aggrieved person may see fit without impairing the right to demand and collect the balance of the claim or cause of action from the other tort-feasors whom the injured person has not so released. This section abolished the common-law rule that the release of one or more tort-feasors discharged the others. Start v. Newspaper Ass'n (Mo. App.) 222 S. W. 870. U...