Block v. Rackers
| Citation | 363 Mo. 508,256 S.W.2d 760 |
| Decision Date | 09 March 1953 |
| Docket Number | No. 1,No. 42918,42918,1 |
| Parties | BLOCK v. RACKERS et al |
| Court | United States State Supreme Court of Missouri |
Roy Coyne, Joplin, for appellants.
Burden & Shortridge, Joplin, for respondent.
Action for damages for the wrongful death of plaintiff's husband. Section 537.080 RSMo 1949, V.A.M.S. Verdict and judgment were for plaintiff for $15,000 and defendants have appealed. Error is assigned on the giving of Instruction P-1 and on the court's action in permitting plaintiff's counsel to argue to the jury that defendant Rackers had not testified in the case.
On August 11, 1950, at about 8 a. m., Edward H. Block, an employee of the Sarcoxie Special Road District, was operating a 14,000 pound motor-driven road grader in a westward direction on the north side of U. S. Highway No. 166, about two miles west of Sarcoxie. The highway, a very heavily traveled public one, was paved with a twenty foot slab of concrete. The day was clear and the pavement dry. Block was operating the grader at about 20 miles per hour and, when he reached a point about 300 feet east of the point where State Highway No. 37 intersects U. S. Highway No. 166, the grader was struck from the rear by a 1949 International 'semi-truck' (a tractor with a stock trailer attached) operated by defendant Rackers. The front of the grader was thrown to the north side of the highway and, when the front wheels reached the far side of a three foot ditch on the north side of the highway the grader, while headed in a northwest direction, turned over on its left side and crushed Block under the cab of the grader. He was dead when removed therefrom.
The tractor portion of the truck came to rest on the north shoulder of the highway, with the major part of the trailer on the north half of the pavement, but extending over the center line so as to interfere with eastbound traffic. The witnesses referred to the tractor as having been demolished. The tractor and trailer stopped near the rear of the road grader. The right front fender and bumper of the tractor and the left rear wheel of the grader showed particular damage. Dirt and debris were visible on the north side of the pavement from where the tractor came to rest to a point 10 to 15 feet behind the trailer. Skid marks, which began 16 feet east of the dirt and debris, extended west to where the tractor came to rest. The truck (tractor with trailer attached) was owned by defendant Baclesse and was being operated by defendant Rackers, an employee of defendant Baclesse. Rackers was driving the truck to Joplin on business for Baclesse and under Baclesse's instructions. The truck approached the grader from the rear, as both vehicles were moving in the same direction. At a point one-half mile east of the point of collision the tractor and trailer were being operated at 50 to 60 miles per hour and their speed immediately before the collision was 70 miles per hour.
U. S. Highway No. 166 is fairly level for 'a considerable distance' from the intersection with State Highway No. 37, at least for a half mile or so east of the intersection. There was evidence that the driver of an automobile approaching the point of collision from the east after the collision was able to see the wrecked vehicles on the highway from the time he came within a half mile of their location.
A highway patrolman, who reached the scene within 15 to 20 minutes after the collision occurred, testified that defendant Rackers said he was driving at a speed of 45 to 50 miles per hour. He quoted Rackers as saying: 'I came upon this grader and tried to stop, and there was an oncoming car, I could not pass or stop in time.' Admissions against interest from defendant Rackers' deposition were offered in evidence to the effect that he was driving the truck; that he saw the road grader when he started to pass it, but he would not say how far he could see it; that he thought he was in the neighborhood of 50 to 75 feet from the road grader when he saw 'this other car'; and that he was then in the left lane approaching the grader to pass and he pulled back into the right lane and hit the grader. He said that he did not see where the other car came from and he did not see it after he stopped. The right center of his truck struck the left center of the road grader. Plaintiff offered a number of witnesses whose testimony tended to prove that there was no such 'other car' traveling east on the highway in the vicinity at about the time of the collision. In view of the issues presented, it is unnecessary to further review the evidence.
Appellants first contend that 'the court erred in giving plaintiff's Instruction P-1 for the reason that there is no evidence to submit to the jury on the rate of speed that defendants' driver was operating at the time of the collision.' Appellants submit no authorities and make no argument in support of this assignment. The assignment is without merit for the reason that plaintiff submitted her cause on two specific assignments of negligence in the conjunctive, to wit, negligent speed and negligent failure to keep a lookout ahead.
The instruction is in part, as follows: '* * * and if you further find and believe from the evidence that said tractor and trailer overtook from the rear and collided with said motor grader, if so; and if you further find and believe from the evidence that defendant Rackers failed to exercise the highest degree of care by negligently and carelessly driving and operating said tractor and trailer at a high and dangerous rate of speed under the facts and circumstances there attending, if you so find, and negligently and carelessly failing to keep reasonable lookout ahead for said motor grader being driven by said Edward H. Block and preceding said tractor and trailer on said highway, and other traffic, if you so find; * * *.'
Since the second assignment of negligence is fully supported by the evidence, and there is no contention that is is not so supported, it was not reversible error to give Instruction P-1 even if the first assignment of negligence, as submitted by the instruction, was unsupported by evidence. Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42, 47; Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897, 900; Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69, 74; Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105, 107. However, we think that both assignments of negligence are sufficiently supported by evidence.
Appellants further contend that Instruction P-1 is erroneous 'for the reason that the issue of negligence was submitted without any guide whatever as to what particular speed or * * * what particular circumstances would sustain a finding of negligence'; that 'no issues of fact were submitted for determination, although the parties had offered conflicting evidence as to speed and circumstances'; and that 'the jury was given a roving commission to speculate and make their own determination as to what conduct constituted negligence.' Defendants' motion for a new trial contained no general assignment of error as to the giving of Instruction P-1. The motion contains a number of specific assignments of error with reference to this instruction, but the assignment now made does not appear therein, nor is it included within any assignment made in the motion. In such situation, the point now attempted to be raised for the first time in this court has not been preserved for review. Sterrett v. Metropolitan Street R. Co., 225 Mo. 99, 105, 123 S.W. 877; Mitchell v. Russell, Mo.App., 170 S.W.2d 137, 138; Section 512.160, subd. 1 RSMo 1949, V.A.M.S.; Sup.Ct.Rule 3.23.
Further, even if the instruction in submitting the issue of negligent speed made an erroneous...
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