Anderson v. Kraft

• Decision Date: 06 June 1939
• Docket Number: No. 24794.,24794.
• Citation: 129 S.W.2d 85
• Parties: ANDERSON v. KRAFT.
• Court: Missouri Court of Appeals

129 S.W.2d 85

ANDERSON v. KRAFT.

No. 24794.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

Certiorari Granted September 5, 1939.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be published in State Reports."

Action by James G. Anderson against William L. Kraft to recover for personal injuries sustained when the plaintiff's automobile collided with the rear end of trailer attached to defendant's motortruck. Judgment for the plaintiff, and the defendant appeals.

Judgment reversed and cause remanded.

Wilbur C. Schwartz, Morton K. Lange, and Orville W. Richardson, all of St. Louis, for appellant.

Edward D'Arcy and Frank Habig, both of St. Louis (Turner & Turner, of counsel), for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff when an automobile in which he was riding was caused to come into collision with the rear end of a trailer attached to defendant's motor truck which was at a standstill on the concrete slab of the highway. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $5,000; and from the judgment which was entered in conformity therewith, defendant has duly perfected his appeal to this court.

The accident occurred about five o'clock in the morning of December 10, 1935, at a point on U. S. Highway No. 40 about three miles east of Kingdom City, in Callaway County, Missouri.

Plaintiff was proceeding eastwardly on the highway in an automobile owned and operated by one Rufus W. Royer, whom he had accompanied to Shenandoah, Iowa, from which point they were returning to their homes in St. Louis when the accident occurred.

Defendant's truck with the trailer attached was loaded with twelve head of cattle that belonged to one Ripley, a farmer residing near Sedalia, Missouri, who had employed defendant to transport the cattle in his truck to the market in East St. Louis, Illinois, and was accompanying defendant on the trip.

About three o'clock in the morning defendant encountered trouble with his truck when the five stud bolts which held both of the dual right rear wheels to the hub broke off under pressure, causing both wheels to become loose on the hub and to drag instead of rotating in the usual manner. As Ripley put it: "All at once the truck got so it could not move. It just went down on us, all down. He [defendant] put it in low gear and still it would not move." Defendant likewise testified to the same effect, that: "When these studs broke off the hub, both wheels were made loose as there was nothing to hold them on to the brake drum. I found one wheel was plumb off and the other just setting on the hub, leaning against the trailer frame. That caused me to stop. At first it felt just like I had two flat tires, and finally it just pulled me down and stopped me. I could not pull it. It was just dragging, that's all there was to it. This wheel was rubbing against the spring of the trailer and binding. I could not pull it as there was nothing rotating any more."

As soon as his truck was brought to a stop, defendant (according to his evidence) put out flares or torches at distances of 150 to 200 feet both to the front and the rear of the truck, and then, upon discovering that from the nature and extent of the damage done it would be necessary for him to go back to Columbia, Missouri, to get repairs, hailed a passing westbound motorist to take him to that point. Ripley meanwhile remained with the truck, and was seated in the cab when, two hours later, Royer's automobile crashed violently against the right rear end of the trailer, after which it ran on around to the right in front of the truck, where it finally came to a stop crosswise of the road and facing to the north.

It appears, incidentally, that the truck was standing with its right side within a foot of the south edge of the pavement, and that save for occasional passing traffic, there was nothing to the left of the truck to obstruct the north half of the slab.

Not only did defendant himself testify to setting up the torches on the highway before undertaking any repairs to the truck, but he was corroborated in this by Ripley, who stated that "the first thing he did was to put the flares out". One Hewitt, the passing motorist who took defendant into Columbia, testified that he saw flares burning both to the east and to the west of the truck, as also did the witness Wallace and his helper, Wright, who came from Fulton with an ambulance upon receiving a call to go to the scene of the accident.

Plaintiff testified that "it was a perfectly clear night outside of a little cloud here and there"; that there was a full moon; that "there were fleecy clouds passing over the heavens in the sky, but they had passed over the moon and left it nice and clear"; that the headlights on Royer's automobile were "working", and struck the pavement about 125 to 150 feet ahead of the car; that the highway at the point of the accident was straight and slightly upgrade; that prior to the accident Royer had been driving at a speed of about 40 miles an hour; that the first knowledge plaintiff had of any hazard was when he saw the truck loom up "kind of slate color or gray" only 60 or 70 feet in front of them; and that Royer evidently discovered the presence of the truck on the highway at about the same time as plaintiff, and then applied his brakes and swerved to the right, but not in time to avoid the collision.

With respect to the issue of whether flares had been put out as soon as the truck became stalled on the highway, plaintiff testified that there were "no flares burning behind it", and in this he was corroborated by a truck driver named Rentschler and his helper, Patterson, who testified that they were approaching the scene from the east at the very moment of the accident. Not so, however, with plaintiff's witness Wilkes, who was eastbound on the highway, and arrived at the scene at about the same time as Rentschler and Patterson. Wilkes testified that he remained at the scene for only a couple of minutes, and then drove back to a filling station to telephone for an ambulance; that when he had first come upon the truck, he had not noticed any flares, but had not been looking for any, and did not know whether there was one burning or not; but that when he returned from putting in the telephone call, he "saw a flare on the west side of the truck".

Wilkes testified further that "the morning of this accident was clear and bright and the moon was shining", and that "without any lights of any kind, and without any flares of any kind, I could see this truck down the highway for more than two blocks".

Though plaintiff had offered no such evidence in his case in chief, in rebuttal he put on one Peel, a mechanic and truck driver, who had observed two men working on the truck as he passed the scene of the accident on the following morning, and who testified that in his opinion "the truck could be moved". Likewise plaintiff himself took the stand once again in rebuttal, and after purporting to qualify himself as an automobile repair man, testified that in his opinion "the trailer could have been moved, rolling on the brake drum".

Other evidence for plaintiff included Rule No. 56 of General Order No. 27 of the Missouri Public Service Commission, which provides for:

"Red Torches or Flags for Stalled Vehicles. — All motor vehicles subject to the jurisdiction of this Commission shall at all times carry in an accessible place at least two oil-burning torches and at least two red flags with suitable standards.

"No driver of such motor vehicle shall permit the vehicle to remain at a stop upon the pavement or traveled portion of the road. If the vehicle cannot be moved from the pavement it shall be the duty of the driver of said vehicle to place a torch or red light, if at night, or a red flag, if by day, at least two hundred feet in front of the car upon the pavement or traveled portion of the road, and another torch or flag, as the case may be, two hundred feet at the rear of the car upon the pavement or traveled portion of the road, which light or flag, as the case may be, shall be maintained until the operator or driver removes the vehicle clear of the pavement or traveled portion of the route or resumes his trip."

In his petition plaintiff charged negligence on defendant's part as follows: "The said defendant negligently and carelessly caused and permitted his said motor truck to be stopped or parked on the traveled portion of said highway, at or about the hour of half-past 3 o'clock in the morning of December 10, 1935, and contrary to the provisions of the statutes of the State of Missouri made and provided; that said defendant negligently and carelessly failed to give warning to travelers, and especially to said Rufus W. Royer traveling on said highway, of the fact that said truck was stopped or parked on said highway; that defendant negligently and carelessly failed to light, and to keep lighted at all times while said truck was so parked or stopped on said highway, a flare or light placed at or about 200 feet in the rear of said motor truck on said highway as a warning to other travelers thereat, as provided and required by rule of the Public Service Commission of the State of Missouri; that defendant negligently and carelessly failed to provide light and have lights burning on said motor truck, and on the rear thereof, as provided by the statutes of the State of Missouri; and that said defendant negligently and carelessly failed to warn the said Rufus W. Royer, or the plaintiff, who was a passenger in the automobile of said Rufus W. Royer, at or before the time of said collision, that said motor truck was so stopped or parked on said highway."

In his answer, after denying each and every allegation contained in plaintiff's petition save as to the allegation that he was the owner of...