Borrini v. Pevely Dairy Co.

• Decision Date: 05 December 1944
• Docket Number: No. 26693.,26693.
• Parties: BORRINI v. PEVELY DAIRY CO.
• Court: Missouri Court of Appeals

183 S.W.2d 839

BORRINI v. PEVELY DAIRY CO.

No. 26693.

St. Louis Court of Appeals. Missouri.

December 5, 1944.

Rehearing Denied December 22, 1944.

Appeal from St. Louis Circuit Court, Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by Mary Borrini against Pevely Dairy Company to recover damages for the death of her husband in a collision between automobile and a truck of defendant. Judgment for plaintiff, and defendant appeals.

Reversed.

Wm. H. Allen, of St. Louis, for appellant.

Reardon & Lyng and Jerome Simon, all of St. Louis, for respondent.

ANDERSON, Judge.

This is an action by Mary Borrini, widow of Louis Borrini, deceased, to recover damages for the death of her husband, who, on August 31, 1942, was injured and killed as the result of a collision between an automobile which he was driving and a truck of defendant Pevely Dairy Company, which at the time was being operated by its servant on Highway 66 in St. Louis County. The trial below resulted in a verdict and judgment for plaintiff in the sum of $7,000, from which judgment defendant brought this appeal.

The charge of negligence submitted to the jury by plaintiff's instruction was that "defendant negligently, carelessly, and unlawfully failed and omitted, in meeting the automobile with plaintiff's husband therein, coming from the opposite direction on the highway, to turn to the right of the center of the highway so as to pass without interference, all in violation of the law and statute in such case made and provided."

By its amended answer, upon which the cause was tried, defendant denied generally the allegations of the petition, and alleged that the injuries and death of Louis Borrini were caused by his own negligence directly contributing thereto, in that, while driving an automobile westwardly along the highway mentioned in the petition, he negligently swerved or drove said automobile, or permitted it to be swerved or driven, from the right-hand, or north, side of said highway to and upon the south side thereof, directly in front of a truck, which was then and there proceeding eastwardly on the south side of said highway, by reason whereof said automobile came into collision with said truck.

The collision in which Borrini received his fatal injuries occurred on August 31, 1942, on Highway 66, about nine-tenths of a mile east of Laclede Station Road, a short distance west of the St. Louis city limits. The highway, at this point, ran east and west, consisted of four lanes, and was forty feet wide. It was straight and level, except for a slight dip a short distance east of the scene of the accident. Down the center of the highway, there was a yellow line; and the lanes on either side of the center were separated by black lines. These lanes were each ten feet wide. In the evidence, the extreme outside lanes were referred to as the driving lanes, and the two inside lanes as the passing lanes.

At the time in question, Louis Borrini was driving a Plymouth coach westwardly on the said highway, and Richard M. Cochran was driving defendant's truck involved in the collision eastwardly on the said highway. This truck was approximately 18 feet long, and about 8 feet wide. It had a single pair of wheels in front, and two sets of dual wheels under the main body.

Shortly prior to the collision, a Ford car, with a Missouri license, was being driven eastwardly in the south driving lane by Roland Altman. This car contained a passenger, Betty McCreary. The collision occurred either as the Pevely truck was passing this car, or immediately after the rear of the truck had passed the front end of this car.

Behind this Altman car was another car, bearing a Michigan license and being driven by Arlon La Roy. In this car, the driver's brother, Maynard La Roy, was a passenger. Previously Arlon La Roy had been operating this car in the eastbound driving lane; but, just prior to the collision, he had pulled out into the eastbound passing lane, behind defendant's truck, intending also to pass the Altman car. At the time of the collision, the Michigan car was in the eastbound passing lane, about one hundred feet behind defendant's truck.

In support of the allegations of negligence charged in her petition, plaintiff adduced the testimony of two witnesses, to-wit: Joseph Burke, an attendant at a filling station about 150 yards from the scene of the accident; and Betty McCreary, the passenger in the Altman car.

Betty McCreary testified that she was seated to the right of Altman in the Ford car, and saw defendant's truck as it passed. She said that at that time Altman was driving with one arm around her, and when the truck was opposite to her she looked up at the truck driver; that he smiled and honked the horn. She stated that the accident occurred very soon after that, and while they were just in back of the Pevely truck; that at the time of the collision, the truck had not gotten back over to the right and in front of them.

On cross-examination, she gave the following testimony:

"Q. You testified at the Coroner's inquest about all this, didn't you? A. I did.

"Q. You testified that when he passed you and went on forward he was driving wholly in the second lane, that is, the first lane south of the center of the highway; that's right, isn't it? A. Yes.

"Q. In other words, the Pevely truck at all times that you saw it before this accident was in that lane just next to the center where it passed you, isn't that right? A. Yes. * * *

"Q. You testified that the Pevely Dairy Company truck never got to the north side of the center of the line, didn't you, at this inquest? A. I said I didn't know.

"Q. Didn't you testify — now, let's see — well, you testified: `You know when this truck passed you? A. Yes, sir. Q. He was in the second lane when he passed? A. He seemed to be. He passed like any other car.' You testified to that? A. Yes, that he seemed to be. * * *

"Q. `When he passed was he on his right side of the center of the road? A. I would say that.' Did you give that testimony? A. Yes, sir.

"Q. And that's true, isn't it? A. Yes, sir."

On further cross-examination, this witness was asked if, after the accident, she saw glass and debris on the south side of the highway, and she answered: "I don't know."

The following questions and answers with reference to her testimony at the Coroner's Inquest then appear:

"Q. I will ask you if you were not asked these questions: `Did you get out of the car and go up to where the wreck was? A. Yes, sir.' Is that correct? A. Yes, sir.

"Q. `Q. Did you see glass and dirt and parts on the road? A. Yes, sir.' That's correct, is it? A. Yes, sir.

"Q. `Q. Could you look at that diagram and tell the jury about where you saw the broken glass in the highway, assuming this is east, that is to say, you were going east, and west is the direction that the car was going in? The Witness: Those two cars were closer together and the glass on the right side of the highway.' That was your answer, wasn't it? A. Yes.

"Q. And by `right side of the highway' you meant your right as you were going east? A. Yes, sir.

"Q. The south side of the highway? A. Yes.

"Q. That's right, isn't it? A. Yes, sir.

"Q. `Q. That is the side of the highway you were traveling on? A. Yes, sir.' You were asked that question and you gave that answer, didn't you, Miss McCreary? A. Yes, sir.

"Q. `Q. You didn't see any glass on the other side of the highway? A. I don't remember.' Did you make that answer? A. Yes, sir.

"Q. `Q. You are sure you saw glass on your side of the highway? A. Yes, sir.' Did you give that testimony? A. Yes, sir.

"Q. Now, are those answers that you gave to these questions correct? A. Yes, sir.

"Q. They are still true and correct, aren't they? A. Yes."

Miss McCreary testified that she first saw the Borrini car after the accident, at which time it was on the south side of the road. She stated that it hit the left side of the Altman car, while the latter was still in the outside lane, and then it collided with the Michigan car, which was following them.

Plaintiff's witness Joseph Burke testified that on the day in question he was employed at a filling station on the south side of Highway 66, about three-quarters of a mile east of Laclede Station Road. He stated that the first knowledge he had of the accident was when he heard the crash of the collision. He did not see either the Pevely truck or the Borrini car immediately before the accident. After the accident, the driver of the truck came to his filling station and asked him to call an ambulance. He called for an ambulance and then went to the scene of the accident. At that time, the Pevely truck was on the north side of the highway, with about ten feet of it on the slab, and the rest on the shoulder.

He further testified that he saw glass and mud there on the highway.

"Q. You saw glass and mud. With reference to the center line of the highway there, can you tell us where that glass or mud was located? A. It was on the third lane going east.

"Q. What would be the third lane going east? What do you consider the third lane going east? A. Third lane from the right-hand side of the road. * * *

"Q. That glass that you saw, where was it with reference to whether or not it was north of the center line of the highway? A. It was on the left-hand side — the third lane.

"Q. On the left-hand side of the highway going east, is that right? A. Right. * * *

"Q. * * * Now, was there any glass on the south side of the center line? A. Never seen none.

"Q. You don't want to say there wasn't any there? A. I would say there was none there.

"Q. * * * Was there any other debris on the south side of the line? A. I never noticed any."

The witness further testified that the damage to the Borrini car was on the right side, and the damage to the truck was also on its right side.

It was stipulated that the driver of the truck was employed by defendant and was on his master's business...