Anthony v. Jennings
| Decision Date | 03 June 1963 |
| Docket Number | No. 23750,23750 |
| Parties | Roger ANTHONY, Respondent, v. Kenneth JENNINGS, Appellant. |
| Court | Missouri Court of Appeals |
Allebach & Ross, J. F. Allebach, Robert L. Ross, Albany, for appellant.
Fred Kling, Albany, for respondent.
MAUGHMER, Commissioner.
T-intersection collision. Verdict for defendant. The trial court found error in the contributory negligence instruction and awarded a new trial. Defendant has appealed.
Route O is a graveled state highway in Gentry County, Missouri, running east and west. Its traveled part is approximately 20 feet in width. It is intersection from the north at the top of a hill by another gravel road designated as Route F. This is a T-intersection as Route F does not extend beyond its junction with Route O. There was testimony that the hilltop at the intersection was flat and fell off sharply to both east and west. There was no definite testimony as to (a) how far a driver of an automobile in Route O at the intersection could see to the east and (b) how far the driver of the vehicle proceeding west on Route O could see an automobile in the intersection. All of the evidence was that it would have been impossible to see the roadway over the brow of the intersection hill until the top of the hill was reached.
At about 5:00 p. m. on April 20, 1961, plaintiff, Roger Authony, alone in his 1958 Ford sedan, was driving east on Route O and planned to turn north and left onto Route F. At the same time defendant Kenneth Jennings was driving a 1952 Ford coach in a westerly direction on Route O and approaching the intersection. It had rained and the roadway was wet.
Plaintiff said that as he approached the intersection he turned on his left signal lights, 'pulled up to the intersection and came to just about a complete halt and as I got past the center line of F and turned north, I was headed north when I saw the Jennings's car our of the corner of my eye'. He then speeded up, but the front of defendant's automobile struck the right rear half of plaintiff's automobile.
The defendant said he approached the intersection at a speed of 'between 45 and 55 miles per hour'; that he did not see plaintiff's vehicle until 'briefly before the collision'; that the front end of plaintiff's car was in the north lane and the back end in the south lane of Route O and headed north. Defendant, after the accident, conducted an experiment and said that in making a left turn north on Route O 'I reached a place where I could not have seen a car coming up that hill'.
Both parties were familiar with the highway and the intersection. Sheriff Bowman of Gentry County investigated the accident. He found that plaintiff's automobile came to rest headed northwest and defendant's 'almost in the center of what would be Route F, heading north, with the rear part partially in Route O.' He found debris on the north portion of Route O. There were no skid marks indicating application of brakes by either vehicle. Sheriff Bowman said defendant had estimated his speed at 55 miles per hour. The front end of defendant's car struck plaintiff's at the front door post on its right side.
Plaintiff submitted (Instruction No. 1) on defendant's failure to keep his automobile under proper control and failure to keep a careful and vigilant lookout. Defendant offered and the court gave his contributory negligence Instruction No. A, which we set out in full:
'The Court instructs the jury that it is the law of Missouri that the driver of an automobile within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction, which is within the intersection or so close thereto as to constitute an immediate hazard.
'The Court therefore instructs the jury that if you find and believe from the evidence that at the time of the collision mentioned in evidence plaintiff, Robert Anthony, was operating his vehicle in an easterly direction on Route O and defendant, Kenneth Jennings, was operating his vehicle in a westerly direction on said Route O, and if you further find and believe plaintiff, Roger Anthony, commenced a left turn into Route F by crossing the center of said Route O when defendant, Kenneth Jennings, was so close to said intersection as to constitute an immediate hazard and plaintiff thereby failed to yield the right of way to defendant, Kenneth Jennings, if you so find, then the Court instructs the jury that plaintiff, Roger Anthony, was negligent in the operation of his automobile, and if you further find that the negligence, if any, of plaintiff, Roger Anthony, directly caused or contributed to cause any injuries to his person or damage to his automobile, then the Court instructs you that plaintiff, Roger Anthony, cannot recover from defendant and your verdict will be for the defendant, Kenneth Jennings'.
The jury returned a verdict for defendant. Thereafter the court sustained plaintiff's motion for new trial 'on the grounds that defendant's Instruction 'A' is erroneous and prejudicial error'. On his appeal, defendant asserts, first, it was not prejudicially erroneous to give Instruction A, and second, defendant's motion for directed verdict at the close of all the evidence should have been sustained as the evidence establishes plaintiff's contributory negligence as a matter of law. Section 304.021(3), V.A.M.S. provides:
'The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.'
It was by reason of this statute that defendant offered and the court gave Instruction A.
In Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 273-274, this court considered the circumstances under which a leftturning motorist should be ruled guilty of contributory negligence as a matter of law so as to authorize a directed verdict against him. In that case the collision occurred at the intersection of 47th Street and J. C. Nichols Parkway in Kansas City. Plaintiff was proceeding east on 47th Street and turned left and north. It was a foggy day and the pavement was wet. Plaintiff said that as he commenced his turn he saw defendant about 100 feet away. He thought he had sufficient time to make the turn. When defendant was about 20 feet away plaintiff realized a collision was imminent and speeded up but the front end of defendant's car struck the right rear fender of plaintiff's vehicle. Section 304.021(3) supra, as to left turns was invoked. The court directed a verdict for defendant. This court reversed and held the contributory negligence question was for the jury, saying, in part:
'The evidence is that appellant was within the intersection and had proceeded to the center of it while respondent was still a considerable distance east of the intersection. This leaves the question, 'was respondent so close thereto as to constitute an immediate hazard?' If so, appellant had the statutory duty to yield the right of way to respondent, and, ordinarily, a a failure to do so would be a failure to exercise the highest degree of care as required by law of the driver of a motor vehicle and would make appellant guilty of contributory negligence. If reasonable minds could not differ on this question then it becomes a matter of law for the court to decide but if reasonable minds could differ on it then it becomes a matter for the jury to decide under proper instructions by the court.
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'A fair reading of all appellant's testimony and its favorable inferences concerning respondent's speed would not preclude the conclusion that he did not then know the exact speed at which respondent was approaching but thought it was such that he had enough time to safely make his left turn.
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We rule that the court did not err in denying defendant's motion for a directed verdict. The issue of contributory negligence in this case is one for the jury under proper instructions. Was Instruction A such a proper instruction?
As stated in Lincoln v. Railway Express Agency, Inc. et al., Mo., 359 S.W.2d 759, 765:
In the Lincoln case the violation charged was that defendant negligently failed, when approaching the intersection to make a left turn, to drive in the lane nearest to the center as required by statute.
In Terrell v. McKnight, 360 Mo. 19, 226 S.W.2d 714, the trial court refused plaintiff's instruction that defendant's failure to signal his turning into plaintiff's lane, stopping on the highway without...
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