Balta v. Foree

• Decision Date: 19 April 1954
• Docket Number: No. 7266,7266
• Citation: 241 Mo.App. 754,267 S.W.2d 353
• Parties: BALTA v. FOREE.
• Court: Missouri Court of Appeals

Page 353

267 S.W.2d 353

241 Mo.App. 754

BALTA v. FOREE.

No. 7266.

Springfield Court of Appeals, Missouri.

April 19, 1954.

Eugene E. Northern, Breuer & Northern, Rolla, for appellant.

Dearing & Matthes, W. H. S. O'Brien, Hillsboro, William H. Tandy, Rolla, for respondent.

BLAIR, Justice.

At the request of Honorable Emory W. Allison, regular judge of the 39th Judicial Circuit of Missouri, the Supreme Court assigned Honorable Claude E. Curtis, regular judge of the 19th Judicial Circuit, to hear this case and to make all necessary orders therein.

Appellant, who was plaintiff below, on May 26, 1953, filed a petition in two counts. That petition is very long, but in substance charged the defendant with careless and negligent driving of his automobile on U. S. Highway No. 66, which resulted in personal injury of the plaintiff and damages to his automobile.

He asked for judgment for damages in the sum of $1000 on the first count, and judgment for damages of $316.85 on the second count of the petition.

Defendant filed an answer to the first count of plaintiff's petition and also an answer to the second count of said petition. He denied negligence in his answer and also filed a counterclaim, alleging the negligence on the part of plaintiff and asking judgment for damages to himself in the sum of $6000.

Trial was begun May 26, 1953. At the conclusion of the evidence and the instructions of the trial court, the jury returned an unanimous verdict for the then plaintiff, in the sum of $300 on each count of his petition and also found for plaintiff on defendant's counterclaim. Judgment was rendered accordingly.

The then defendant filed a motion for a new trial. The motion was sustained by the trial court and a new trial was granted for alleged error of the trial court for giving and reading to the jury instruction No. 1. Thereupon, the original plaintiff was granted an appeal to this Court.

Besides the alleged error in instruction No. 1, the motion for a new trial charged error in several respects; but the case comes to us almost entirely as to the correctness of instruction No. 1. Both appellant and respondent have directed their briefs to the correctness of that instruction, and we feel that the decision on that point is all that is necessary.

Under his Points and Authorities, appellant makes the following contentions:

'(a) An operator of a motor vehicle is required to exercise, the highest degree of care.

'(b) Under the laws of the State of Missouri, no vehicle shall be driven into a highway unless the highway is sufficiently free from approaching vehicles to permit such vehicle to enter the lane of moving vehicles without danger of collision.

'(c) It was the duty of defendant-Respondent not to drive his automobile out upon Highway 66 unless said highway was free of approaching traffic and it was his duty at all times to operate his said automobile so as not to endanger the lives and property of others upon said highway. This duty existed whether he saw it, or, by the exercise of the highest degree of care could have seen Plaintiff-Appellant approaching, or whether he had reason to believe that a collision would occur.'

The only error charged against the trial court seems to be the alleged impropriety of giving and reading to the jury instruction No. 1. This requires a consideration of the instruction and the evidence in the case.

Appellant makes the following contention:

'It is our contention that in this case at Bar the law placed a duty upon the Defendant-Respondent to exercise the highest degree of care and not to drive his automobile out upon the paved portion of said highway and cross said highway, and in front of Plaintiff's motor vehicle when Plaintiff's motor vehicle was so close that the plaintiff could not thereafter by the exercise of the highest degree of care slacken the speed of his car, or to stop it, or to swerve the same, and thus avoid running into defendant's automobile. It is our contention that it makes no difference whether the defendant-Respondent saw, or could have seen, Plaintiff-Appellant's automobile and it is our contention that it makes no difference whether the defendant-Respondent saw that there was apparent danger.'

In other words, it is the contention of appellant that instruction No. 1 properly stated the law, under the evidence in this case, and that the trial court improperly sustained defendant's motion for a new trial. For a statement of the facts of the case, the brief of defendant is very clear, and should be set out:

'Plaintiff-Appellant filed his petition in two counts in the Circuit Court of Phelps County, Missouri, wherein he sought to recover damages for personal injuries and for property damage sustained by him as result of an automobile collision which occurred on U. S. Highway 66, in Pulaski County, Missouri, as result of a collision between the car owned and operated by the Plaintiff-Appellant and the automobile owned and operated by Defendant-Respondent, the Defendant-Respondent being a resident of Phelps County, Missouri. Among several charges of negligence, Plaintiff alleged that, the defendant was sitting in his parked car at the right hand side of said Highway 66, and immediately adjacent thereto, as the Plaintiff proceeded Eastwardly along said highway, in the outside lane thereof, when the Defendant, without warning, turned from position of safety, into and across the Eastbound lane of traffic on said highway in an abrupt and sudden manner and in dangerous proximity to the oncoming car of the Plaintiff in said lane of travel, and so close that it was impossible for the Plaintiff, with the exercise of the highest degree of care, to avoid the collision between his...