Adkins v. Boss

• Decision Date: 09 April 1956
• Docket Number: No. 44932,No. 1,44932,1
• Citation: 290 S.W.2d 139
• Parties: Edgar ADKINS, Appellant, v. Otto John BOSS, Jr., Elmer Boss, Meyer Manufacturing Corporation, and William Creech, Respondents. . Division
• Court: Missouri Supreme Court

Page 139

290 S.W.2d 139

Edgar ADKINS, Appellant, v. Otto John BOSS, Jr., Elmer Boss, Meyer Manufacturing Corporation, and William Creech, Respondents.

No. 44932.

Supreme Court of Missouri. Division No. 1.

April 9, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 14, 1956.

John B. Newberry, Springfield, Walker, Daniel, Clampett & Rittershouse, B. H. Clampett, Springfield, for appellant.

Rozier, Carson & Nacy, Jefferson City, for respondents Otto John Boss, Jr., and Elmer Boss.

Boyle G. Clark, Raymond C. Lewis, Jr., Columbia, Mosby & Mosby, Linn, Clark & Becker, Columbia, of counsel, for respondents Meyer Mfg. Co. and William Creech.

VAN OSDOL, Commissioner.

This is an action for $150,000 damages for personal injuries sustained in a collision of three motor vehicles. The collision occurred at 9 o'clock in the evening of January 5, 1954, at the junction of U. S. Highway No. 66 and U. S. Highway No. 50 in Franklin County. Plaintiff sought recovery on the theory of primary negligence of defendants. The trial court sustained defendants' motions for a directed verdict at the conclusion of plaintiff's evidence, and plaintiff has appealed from the ensuing judgment for defendants.

Herein plaintiff-appellant, Edgar Adkins, contends the trial court erred in directing a verdict for defendants. He asserts that a submissible case was made against all defendants, and that he was not contributorily negligent as a matter of law. Plaintiff also contends the trial court erred in excluding evidence proffered plaintiff's behalf. Although defendants-respondents make no contention plaintiff did not make out a case of actionable negligence against them, they say the motion for a directed verdict was correctly sustained because plaintiff's own evidence, as a matter of law, demonstrates he was guilty of contributory negligence.

In determining the question whether a plaintiff was contributorily negligent as a matter of law, we bear in mind that plaintiff's negligence is a jury question, unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury. Creech v. Riss & Co., Mo.Sup., 285 S.W.2d 554. To this we add that in considering this question we also recognize the principle that a plaintiff is bound by his own testimony.

The instant case is a companion case to Creech v. Riss & Co., supra, and reference may be made to the Creech case for a survey of the physical setting of the casualty; but the evidence in the instant case varies in some respects from the evidence in the Creech case, and it is necessary to make a statement of the evidence as introduced in this case, in so far as the evidence bears on the question of plaintiff's contributory negligence.

At the junction where the collision occurred, U. S. Highway No. 66 lies in a general northeast-southwest direction, but we shall hereinafter consider it as if it were a north-south highway. Highway 66 is a four-lane, paved highway--two (east) lanes accommodating northbound traffic and two (west) lanes accommodating southbound traffic. The northbound traffic lanes are divided from the southbound by a parkway 12 or 13 feet wide.

U. S. Highway No. 50 lies in an east-west direction and, approaching Highway 66 from the west, divides into a paved, triple-approach junction with Highway 66. Highway 50 does not pass to the eastward of Highway 66. Northwardly from the junction for several miles, traffic on Highway 50 utilizes the same paved traffic lanes as Highway 66. The northerly branch of the approach accommodates traffic into Highway 50 from the southbound (west) lanes of Highway 66. The southerly branch accommodates traffic from Highway 50 into the southbound lanes of Highway 66, as well as traffic moving from the northbound lanes of Highway 66 over into Highway 50. The central or middle branch of the approach accommodates traffic from Highway 50 over into the northbound lanes of Highway 66. This central paved approach intersects the west edge of the southbound lanes of Highway 66 at an angle of approximately forty degrees and passes eastwardly through the parkway to the northbound lanes of Highway 66. Between the northerly and the central, and between the central and the southerly branches of the approach, there are irregular-triangular areas of sodded berm.

Coming from the south on Highway 66 from a point 1100 feet south of the junction, a traveler moves around a right-hand curve of about two degrees, and down a three per cent grade; however, the highway 'flattens out' and 'straightens' in its near approach to the junction. There is a barrier 100 feet long on the eastern edge of Highway 66. The barrier of 'zig-zag' marked planks and cables and posts is a little over 8 feet east of and parallels the eastern edge of the pavement. The southern end of the barrier is about on a line with an eastwardly projected south side of the central paved approach of Highway 50.

As we have said, three vehicles came into collision.

(1) Defendant Otto John Boss, Jr., driving east on Highway 50 approached Highway 66 in a 'straight-bed,' ton-and-a-half truck loaded with cattle. The truck belonged to defendant Elmer Boss, who, driving another cattle truck, had preceded Otto John in driving into and through the junction and northwardly on Highway 66 toward St. Louis. Otto John (following his brother, defendant Elmer, as stated) stopped the truck he was driving (before passing through the southbound lanes of Highway 66) at a dual stop sign (with red blinker) on his right in the triangular berm south of the central approach. The stop sign is 7 feet 9 inches west of the west side of the southbound lanes of Highway 66. The stop sign is approximately 78 feet west of the west side of the northbound paved lanes of Highway 66. Defendant Otto John then 'rolled out' across the southbound lanes into the parkway steadily speeding up in passing through the parkway (the dividing part of Highway 66) and into the northbound lanes of Highway 66.

(2) Plaintiff Edgar Adkins had been approaching from the southward on Highway 66. He was driving a combination motor vehicle consisting of a White tractor and a Fruehoff trailer belonging to Riss & Company. The combination vehicle was 42 or 43 feet long and weighed 21,000 pounds. It was loaded with freight, frozen horse meat, weighing 29,900 pounds.

According to plaintiff's testimony, the Riss vehicle driven by plaintiff and the truck driven by defendant (Otto John) Boss collided at a point in the northbound lanes of Highway 66 about even with the second or third post from the north end of the plank-cable-post barrier east of the intersection. Plaintiff had cut off to the right, 'off of the highway,' and after the impact he swerved the 'wheels back on to the highway.' The left end of the front bumper of the Riss tractor had 'caught the other truck right up over the back wheel on the right side.'

The Riss vehicle had been followed at a distance of about 333 feet by a sedan driven by one Hatfield. As the Riss equipment was moving in its approach to the point of collision, Hatfield pulled his sedan into the left of the northbound lanes of Highway 66 and stopped near the central parkway at a point about 200 feet from the intersection.

(3) The Hatfield automobile had been followed in turn by a combination motor vehicle belonging to defendant Meyer Manufacturing Corporation driven by defendant William Creech. Defendant Creech moved the Meyer vehicle past the parked automobile belonging to Hatfield and drove into collision with the rear end of the Boss truck which had come to rest 'sitting in the middle of the highway.'

When plaintiff, moving northwardly on Highway 66 in his Riss combination equipment loaded with a cargo of freight as stated supra, 'topped over the grade' of the hill south of the junction plaintiff had a commanding northward view of all points down to and around the intersection at the junction. He saw a truck 'pull out' of Highway 50 onto Highway 66. This truck was driven by defendant Elmer Boss. Plaintiff saw the other Boss truck (driven by defendant Otto John) stop at the stop sign west of the southbound lanes of Highway 66. Plaintiff said that, when he was six to eight hundred feet south of the junction and saw the Boss truck 'just moving out from the stop sign,' he (plaintiff) was moving, 'I would say * * * 48 miles an hour.' He applied the brakes to 'keep the truck from running up and hitting the governor.' He did not apply the brakes again until 'just before I went off the pavement.'

Plaintiff was a truck driver of fifteen years' experience. As an employee of Riss & Company, he had driven tractor-trailer equipment for about two years. The power brakes were in good condition, and the pavement was dry. Plaintiff was familiar with the approach of the intersecting highways at the junction, including the circumstance that but one stop sign was situate on the central approach at the junction. Now when he had approached to a point 1100 feet south of the junction he had passed a 'blinker' sign on his right bearing the legend, 'Speed Zone 40 Miles.' Approximately 300 feet farther to the northward, he had passed a yellow sign with the legend, 'Junction Slow 800 Ft.' Approximately 250 feet farther on, plaintiff had passed a sign bearing the abbreviation 'Jct' and arrows indicating passage over Highway 66 northwardly and over Highway 50 westwardly. And still farther on, at a point about 200 feet south of the junction, plaintiff had passed a sign indicating directions northwardly toward St. Louis over...