Boyer v. General Oil Products

• Citation: 78 S.W.2d 450
• Decision Date: 05 February 1935
• Docket Number: No. 23332.,23332.
• Parties: BOYER v. GENERAL OIL PRODUCTS, Inc., et al.
• Court: Court of Appeal of Missouri (US)

78 S.W.2d 450

BOYER v. GENERAL OIL PRODUCTS, Inc., et al.

No. 23332.

St. Louis Court of Appeals. Missouri.

February 5, 1935.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be published in State Reports."

Action by Ernest Boyer against the General Oil Products, Incorporated, and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

P. S. Terry, of Festus, and Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for appellants.

Walter Wehrle, of Clayton, Sam Hatupin, of St. Louis, Sam McKay, of De Soto, and Forrest Hemker, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff late in the afternoon of December 3, 1932, when a wagon in which he was riding was run into from the rear by a truck owned by defendant General Oil Products, Inc., and driven by the latter's agent and servant, defendant Howard Hubbard. Tried to a jury, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $1,500; and following the overruling of their motion for a new trial, both defendants have duly appealed.

In the submission of the case to the jury plaintiff relied wholly upon negligence under the humanitarian doctrine, abandoning all his pleaded theories of primary negligence. Defendants had answered by a general denial, coupled with a plea of contributory negligence based chiefly upon the charge that plaintiff, in driving along the highway after sunset, had failed to attach to the rear of his wagon a red light or reflecting device of a type to be visible to the driver of a vehicle approaching and overtaking the wagon from the rear. The reply was in the conventional form.

Plaintiff was driving northwardly on State Highway No. 21, some two miles north of Old Mines, in Washington county, Mo., in a tiff wagon drawn by a span of mules. With him was one Elmer Minx, who had got on the wagon at John L. Boyer's store which stands alongside the highway about a quarter of a mile south of the point of the accident.

The highway is constructed with an oil mat or black-top pavement from sixteen to twenty feet in width, which is bordered on either side by a dirt shoulder about four feet in width. As has been indicated, the road runs generally north and south, curving slightly to the left from Boyer's store to the point of the accident, but not enough to have prevented Boyer from having had a clear view of the collision. North of the point of the accident the road runs straight for about a mile.

Plaintiff's evidence was that the accident happened not later than 5 o'clock in the afternoon, while it was still daylight and visibility was good, while defendants' evidence was that the time was about 6 o'clock, with visibility very poor.

At any rate, plaintiff was driving along on the right side of the road, with only his two left wheels upon the black-top, the two right wheels being out upon the shoulder. A southbound car was seen approaching at quite some distance from the north, seemingly with its lights burning; and plaintiff, at Minx' request, stopped to let him off the wagon, his purpose being to hail the driver and take passage with him to some point back to the south. After Minx had alighted, plaintiff started his team up again, and had gone about twenty feet when he chanced to turn and look back down the road and saw the head-lights of what proved to be defendants' truck. He warned Minx that there was a car coming up the road behind him, and after observing that Minx seemed to step over towards the side of the road, he paid no further attention to its approach. Meanwhile both on-coming vehicles were nearing plaintiff's wagon, and just as the south-bound automobile was even with or a little past the wagon, the truck crashed into the rear end of the wagon, overturning and demolishing it, and causing plaintiff to receive the injuries for which he has sued. As a matter of fact, the truck had first struck Minx, who was standing awaiting the car from the north, though plaintiff did not know about it until after he had crawled out from under the wreckage and saw Minx lying up against the fence.

For defendants, the testimony of the driver, Howard Hubbard, tended to show that he was blinded by the lights of the approaching south-bound automobile until just as it passed or was about to pass him, when for the first time he saw Minx out in the road some six feet in front of his truck, and the wagon about eight feet in front of Minx. He was driving at a speed of approximately twenty-five miles an hour, so that in the short time at his disposal he had no opportunity either to sound his horn or to apply his brakes. Instead he pulled sharply to his left, but not enough to avoid striking Minx, and then immediately straightened his truck out again, colliding with the left rear end of the wagon.

According to his testimony, after he struck Minx he applied his brakes, and stopped in the shortest distance possible, which was twelve or fourteen feet. The mechanical equipment of his truck, including brakes, lights, and steering apparatus, was perfect. His testimony was further to the effect that ordinarily his lights would have revealed an object on the road as much as seventy-five feet and perhaps as much as one hundred twenty feet ahead of him, but that under existing conditions, with the headlights of the south-bound car in his...