Beaver v. Wilhelm

• Court: Missouri Court of Appeals
• Writing for the Court: ANDERSON; RUDDY, P. J., and WOLFE
• Citation: Beaver v. Wilhelm, 321 S.W.2d 1 (Mo. App. 1959)
• Decision Date: 17 February 1959
• Docket Number: No. 30185,30185
• Parties: Arthur F. BEAVER (Plaintiff), Respondent, v. Frank WILHELM and Dallas H. Dwiggins (Defendants), Appellants.

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321 S.W.2d 1

Arthur F. BEAVER (Plaintiff), Respondent, v. Frank WILHELM and Dallas H. Dwiggins (Defendants), Appellants.

No. 30185.

St. Louis Court of Appeals, Missouri.

Feb. 17, 1959.

Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellants.

Michael B. Gershenson, St. Louis, H. K. Stumberg, St. Charles, for respondent.

ANDERSON, Judge.

This is a negligence action wherein plaintiff, Arthur F. Beaver, sought to recover for injuries to his person and for the damage to his automobile alleged to have resulted from a collision between said automobile and a truck owned by defendant Frank Wilhelm, which truck was alleged to have been parked by Wilhelm's employee, defendant Dallas H. Dwiggins, in such a manner that the rear end extended onto the highway over which plaintiff was proceeding. The trial resulted in a verdict and judgment in favor of plaintiff and against both defendants in the sum of $4,250. From said judgment defendants have appealed, contending that the trial court erred in failing to direct a verdict for defendants for the reason that plaintiff was guilty of contributory negligence as a matter of law.

In determining the issue before us we must view the evidence in the light most favorable to plaintiff. Contributory negligence as a matter of law must appear in plaintiff's case or be established by evidence on the part of defendant which is binding on plaintiff or which plaintiff concedes to be true. Pfeiffer v. Schee, Mo.App., 107 S.W.2d 170; Slates v. Joplin Butane Gas Co., Mo.Sup., 315 S.W.2d 808; Creech v. Riss & Co., Mo.Sup., 285 S.W.2d 554. Reviewing the case in the light of the above rule, we find the following facts disclosed by the record.

The collision occurred about 12:36 a. m. March 15, 1953, on Highway 94. The travel portion of said highway is 18 feet wide, is paved with black-top, and runs in a southwesterly direction from the City of St. Charles. Plaintiff at the time was on his way home from work and immediately prior to the accident and at the time of the collision was traveling 25 or 30 miles per hour. The wheels on the righthand side of plaintiff's car as he proceeded along said highway were approximately 2 or 2 1/2 feet from the righthand edge of the pavement. The night was clear and the pavement dry. There were two sharp curves in the highway just east of the point where the collision occurred. The first curve was to the right, followed by a short straight stretch, then by a curve to the left. These curves were fairly abrupt. In fact, plaintiff testified: 'They could almost be termed as a turn instead of a curve.' The length of the straight stretch is not shown.

Near the scene of the accident and on the north side of the highway was a tavern known as Lakeside Inn, sometimes referred to as Sportsman's Inn. Defendant Dwiggins on the night in question went to this tavern driving a fthree-quarter-ton Ford pick-up truck. Dwiggins testified that he parked this truck on the shoulder of the highway, but there was evidence introduced by plaintiff from which the jury could have found that the truck was parked at an angle on the righthand side of the highway without lights, with its left rear wheel or left side of the bed of said truck extending two and one-half to three feet onto the paved portion of the highway. The truck was parked between two other cars parked on the shoulder of the highway and parallel thereto. There were no lights around the area where the truck was parked except at a small Stag Beer sign about 50 or 60 feet west of the point of collision. The truck was light gray or tan in color, was splattered with plaster, and very dirty.

Plaintiff's testimony was that he completed the right turn and thereafter, as he proceeded toward the left turn, he was blinded by the headlights of an automobile traveling in the opposite direction, toward St. Charles, at a speed in excess of 25 or 30 miles per hour; that after this car passed, he collided with the truck in question. The collision occurred as he was entering the left turn. On direct examination plaintiff testified that he did not know exactly how many feet he traveled after being blinded until the accident occurred, but stated that: 'It was a very short distance * * * about fifty feet.' On cross-examination, he testified that the distance was 'less than 100 feet. * * * It could have been 25 feet. * * * It was all so sudden, I don't know exactly how far it was.' When further questioned, plaintiff gave the following testimony:

'Q. Now getting back to the distance from the point of impact, where the passed this eastbound car, your best judgment is that it was around 100 feet, is that what you want the...