Beezley v. Spiva
| Decision Date | 12 May 1958 |
| Docket Number | No. 46305,No. 2,46305,2 |
| Citation | 313 S.W.2d 691 |
| Parties | Lois BEEZLEY and Glenn Beezley, Respondents, v. Edwin Dean SPIVA and Frisco Transportation Company, a Corporation, Appellants |
| Court | Missouri Supreme Court |
Roy Coyne, Max Patten, Joplin, for appellants.
Edward G. Farmer, Jr., John R. Martin, Joplin, for respondents.
This suit is one for damages for personal injuries to respondent Lois Beezley, damages to the husband for loss of her services and society, and also for property damage to the husband's car. The petition is in three counts. We shall refer to the respondents as plaintiffs, and to appellants as defendants. Plaintiff Lois had a verdict for $15,000, and plaintiff Glenn one for $5,000 on his loss of services count, and $114.89 for his property damage. A motion for new trial was duty filed and overruled, and this appeal taken.
We are met at the outset with a motion to dismiss the appeal for the insufficiency of appellants' statement of facts under Supreme Court Rules, Rule 1.08, 42 V.A.M.S. The statement of facts leaves much to be desired, but we have concluded with some hesitation that it is not so wholly deficient as to require the penalty of dismissal. Other failures to comply with that rule also appear which we shall mention later.
Defendant Spiva was the driver of a tractor-trailer unit owned by the other defendant, Frisco Transportation Company; the tractor was a 1945 model White. It was equipped with air brakes; when the tractor was connected to the trailer the foot brake operated the air brakes on both tractor and trailer, although there was a 'hand valve' which would operate the tractor brakes separately. The air came from a compressor on the tractor with air tanks on both tractor and trailer. The tractor was also equipped with a mechanical hand brake or emergency brake 'on the floor board' of the cab. On the afternoon of this accident, September 6, 1955, Spiva started up this tractor at defendant's terminal in Joplin, tested its air brakes, and hooked it up to the loaded trailer; he then tried the trailer brakes, and tried the combined brakes of both, which, he testified, worked perfectly. Thence he proceeded to an appointed destination in the city, stopping several times en route; he testified that at all of these stops, approximately six, the air brakes worked satisfactorily. The accident occurred about 5:00 p.m. on Seventh Street, just east of Main Street. Plaintiffs, with Glenn driving and with two small grandchildren in the car, had stopped on Seventh Street just east of Main for a traffic light; they were headed west, and one or two cars had stopped ahead of them; their car was in the curb lane with other cars in the line to their left. Mr. Beezley testified that his foot was resting lightly on the brake. Spiva, in his unit, came up behind the Beezleys' car at a speed, so he testified, of 8 to 10 miles per hour; as he applied his air brakes to stop he heard a 'hissing noise' which was the air escaping; he estimated that he was from 20-30 feet behind the Beezley car when he tried his brakes, and that he could have stopped in 6 to 8 feet with his air brakes operating, had it been necessary. The air brake pedal went clear to the floor; he then grabbed the hand valve which controlled the trailer brakes, but found that it had no effect because all the air was gone. He then tried to get the gears into reverse, and testified that he accomplished this just as the vehicles were 'ready to make contact.' At this moment the tractor 'jerked' and he pulled on the emergency brake, but in the meantime he had bumped the Beezley car, while moving at 'approximately five miles per hour.' The bumper of the tractor slid over the rear bumper of the car. There was some uncertainty in the evidence as to whether, and if so, how much, the Beezley car was actually moved forward, since it was apparently held back more or less by the interlocking of the bumpers. We think this immaterial. When Spiva and plaintiff Glenn Beezley got out, the former admittedly said, in substance, that he was sorry but that he had no brakes. Police were called and he was arrested. There was much ado at the trial about the result of those proceedings, all of which was wholly unnecessary and improper. The evidence showed that a 'diaphragm' on the tractor, constituting a part of the air-braking system, had suddenly split and had let the air in the system escape. There is no real contention that this was not a sudden and excusable emergency, so far as the air brakes were concerned. The real controversy here revolves around the mechanical emergency brake and the alleged failure, under Sec. 304.560(3) RSMo 1949, V.A.M.S. (all statutory citations will be to RSMo 1949, V.A.M.S.), to have '* * * two sets of adequate brakes, kept in good working order * * *.' Plaintiffs produced no testimony regarding the brakes. Spiva, as stated, did not attempt to use the emergency brake until approximately the instant of the contact. He testified that the emergency brake, not connected with the air system, was the 'second best way' of slowing down in the absence of air brakes, the best way being with the gears; that the emergency brake would not stop that unit, loaded, in 20 or 30 feet at 8-10 miles per hour, and that while it would have 'slowed it down' in that distance, it would require 50 feet to stop the unit with the emergency brake. The latter statement was apparently an estimate based on no actual experiment. The import of Spiva's testimony was that he did not have sufficient space in which to stop the unit with the emergency brake and intentionally used a means which he considered preferable. There was no evidence of the distance in which a normal or 'adequate' emergency brake would stop such a loaded unit, and no evidence as to what would constitute an adequate emergency brake. Spiva further testified that the emergency brake would hold the unit 'in setting still'; a mechanic (not in the general employ of defendant Frisco) who worked on the air brakes and installed a new diaphragm a day or so after the collision, testified that the emergency brake would not hold the tractor on a sloping floor and they blocked the wheels, as they did on 'every truck,' and that this brake was in a bad state of repair; he did not state, however, that he had ever specifically examined it or worked on it; he also testified that such a brake could be rather suddenly burned out if left on while the tractor was moving.
In the view we take of the case we need not digest the evidence concerning Mrs. Beezley's injuries. She claimed a more or less typical whiplash injury. Counsel for defendants make much of the contention that the medical testimony merely showed that her condition 'could have been caused' by either bad teeth or by injury suffered in thsi collision, and that the verdict, therefore, rests upon speculation and conjecture. We shall not find it necessary to discuss this point, but we may say, in view of another trial, that the evidence clearly shows that some injury was sustained by her in this collision. Nor do we find it necessary to consider the point made that the court erred in refusing to discharge the jury by reason of statements of counsel and controversies which arose when the parties, pro and con, indulged in wholly improper attempts to show the result of the police court proceeding against defendant Spiva. That, we trust, will not occur again. The two points just mentioned are sufficiently raised in appellants' brief. Points 3 and 4, both involving instructions, are insufficient. See Ambrose v. M. F. A. Co-Op. Ass'n of St. Elizabeth, Mo., 266 S.W.2d 647, loc. cit. 649, 650. However, given Instruction No 1, which appellants seek to attack by their Point 3, constitutes the very crux of this case and we find it impossible to consider the appeal intelligently without ruling upon it. For that reason only we consider the point. For a somewhat analogous situation see Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726, loc. cit. 736.
Given Instruction No. 1 was as follows: 'The Court instructs the jury that under the evidence in this case ...
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