Bramblett v. Harlow
| Citation | 75 S.W.2d 626 |
| Decision Date | 08 November 1934 |
| Docket Number | No. 23106.,23106. |
| Parties | BRAMBLETT v. HARLOW et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.
"Not to be published in State Reports."
Action by Freeman Bramblett against Anna Harlow and another, in which defendant filed a counterclaim. Judgment for plaintiff, and defendants appeal.
Reversed and remanded, with directions.
J. H. Haley, of Clayton, for appellants.
F. D. Wilkins, of Louisiana, Mo., for respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff on October 5, 1932, in a collision between his truck and an automobile in which defendants were riding. From the judgment rendered upon a verdict assessing plaintiff's damages at the aggregate sum of $2,500, defendants have duly appealed.
The accident occurred in Pike county, Mo., at the intersection of U. S. Highway No. 61 with what is known as the Saverton road, the same being a local graveled highway or farm-to-market road which leads northwardly from the town or Frankford to the point where it crosses U. S. Highway No. 61 approximately at right angles.
Generally speaking, U. S. Highway No. 61 runs north and south, but its course is temporarily changed in the neighborhood of the scene of the accident so as to make it run east and west at that point. It is paved with the conventional eighteen-foot concrete slab, while the Saverton road, at least at the point of the intersection, is some forty to seventy feet in width, widening out to such proportions as it approaches and intersects with the main highway. At the northeast corner of the intersection, thirty to forty feet west of the Saverton road and about the same distance north of the pavement, stands a filling station, with the ground leveled off around it both to the east and to the west so that automobiles may conveniently drive up to it from either highway. In fact, the evidence shows that at a point as much as one hundred feet west of the filling station, the lay of the land is such that if necessary one could there begin to pull off upon the shoulder to the north of the pavement.
There is a slight upward incline in the Saverton road as it approaches the pavement, and a corresponding rise in U. S. Highway No. 61 to the west of the intersection for some five or six hundred feet on a straight line to the crest of a hill over which the highway dips. As a matter of fact, the record shows that by actual measurement the distance is 535 feet. From such point, that is, from the crest of the hill, one coming from the west towards the intersection on U. S. Highway No. 61 (as defendants were) has a clear and unobstructed view of a vehicle about to enter upon the highway from the Saverton road; and, of course, any one upon the Saverton road who is about to enter upon the highway (as plaintiff was) likewise has a clear and unobstructed view of approaching traffic from the west on U. S. Highway No. 61 as far as the crest of the hill 535 feet away.
The plaintiff is Freeman Bramblett of Frankford, who is engaged in the trucking business, and at the time of the accident was driving a Chevrolet truck. Defendants are Mrs. Anna Harlow and her husband, H. E. Harlow, of Seattle, Wash. Mr. Harlow, a former resident of Pike county, labors under a mental disability resulting from injuries suffered in the World War, and his purpose in being in Missouri with his wife at the time of the accident was to visit his relatives residing near Bowling Green. Mrs. Harlow had never been in Missouri before. She was the driver, the automobile being a 1932 Chevrolet coupé admittedly owned by her individually, and purchased but a short time before she left Seattle for Bowling Green.
All the testimony regarding the facts leading up to the accident came from plaintiff on the one side, and Mrs. Harlow on the other. Save for Mr. Harlow, who did not testify, there were no other actual eyewitnesses to the accident.
Plaintiff testified that he was driving northwardly on the Saverton road, intending to go directly across U. S. Highway No. 61, and that as the front of his truck came "right up against the pavement," less than three feet away from it, he stopped his truck, killed his engine, and looked first to his right and then to his left for approaching traffic. Seeing nothing, as he stated, he thereupon started his motor, a process which occupied some three or four seconds of time, and then without ever looking again in either direction, he started forward, and pulled out very slowly in low gear, with the front of his truck some two or three feet out upon the slab, when suddenly he saw the on-coming east-bound Harlow car "right at him," seemingly about ten feet from him, and apparently running at a "good speed." Under the circumstances he had no time to get out of the way, and the collision occurred; plaintiff being thrown out of his truck upon the highway, in consequence of which he sustained the injuries for which he has sued.
He testified further that he heard no horn sounded prior to the accident. He admitted that there were no other vehicles upon the highway at the time; that there were no obstructions to have prevented him from seeing the Harlow car approaching if it had been in sight when he looked; and that he had been entirely familiar with the surroundings at the intersection ever since the construction of U. S. Highway No. 61.
Other evidence for plaintiff disclosed that as a result of the force of the impact, plaintiff's truck was turned completely around near where it was when struck, with the rear wheels barely on the pavement and the front part of the truck headed south upon the graveled highway, and that the Harlow car was stopped at the northeast corner of the intersection, about ten feet east of the east edge of the Saverton road and still headed east, with the two left wheels off of the pavement.
Mrs. Harlow for her part testified that as she came over the crest of the hill, at a moderate rate of speed, she observed the truck approaching the highway from the side road, and that when she reached a point halfway of the intersection, the truck stopped at the edge of the pavement, to let her pass as she supposed. Continuing onward at about thirty miles an hour, she came to a point about two car lengths, or thirty-two feet, from the path of the truck, when suddenly it was started forward and driven out upon the highway in front of her. She swerved to the left, and increased her speed in an endeavor to pass to the left of the truck, apparently believing that its driver was attempting a right turn upon the highway; but the collision nevertheless occurred, Mrs. Harlow being thrown against the steering wheel and rather seriously injured in the region of the chest.
At one point in her testimony she admitted that after she saw plaintiff start his truck forward, when she was still thirty-two feet back from its path, she could have stopped her car, but didn't do so because she thought "he was intending to go her way," and that by putting on more speed she would be able to pass him.
In his petition plaintiff counted upon numerous assignments of primary negligence, together with negligence under the humanitarian doctrine. However, in the submission of his case he relied only upon the humanitarian doctrine and the charge of negligence on Mrs. Harlow's part in driving her automobile at a high and reckless rate of speed proximately resulting in the collision. Damages were prayed in the total sum of $20,725, including items for injury to plaintiff's person and damage to his truck.
For their answer defendants set up a general denial, coupled with a plea of contributory negligence. Along with their answer they also filed a counterclaim, charging negligence on plaintiff's part under the humanitarian doctrine, and asking damages in the sum of $6,300 on account of the personal injuries suffered by Mrs. Harlow and the partial destruction of her automobile. No question seems to have been raised at any stage of the trial regarding the right of defendant H. E. Harlow to be joined as a party to the assertion of the counterclam based upon such cause of action.
The verdict of the jury was for plaintiff, and against defendants, on plaintiff's cause of action in the aggregate sum of $2,500, and likewise for plaintiff, and against defendants, on the counterclaim. Within due time defendants moved for a new trial; and this being refused, they have appealed to this court from the judgment rendered in conformity with the verdict.
As a matter of prime insistence, defendants complain of the giving of plaintiff's instruction No. 1, which predicated a recovery for plaintiff upon a finding that the collision proximately resulted from Mrs. Harlow's act in driving her automobile at a reckless, negligent, and high rate of speed, and that plaintiff himself was at the time in the exercise of due care for his own safety. The objections are that there was no evidence to support a finding of high and reckless speed on Mrs. Harlow's part, and further that plaintiff, by his own evidence, was convicted of contributory negligence as a matter of law.
Though the case is not without its difficulties, we can reach no other conclusion than that under the evidence the issues hypothesized in the instruction were for the jury to determine.
It need scarcely be said that in testing the sufficiency of the evidence to have made jury questions of both of the matters complained of, plaintiff is to be given the benefit, not only of all favorable direct testimony, whether from his own or from defendants' side of the case, but also of all the favorable inferences reasonably and legitimately deducible from all the proof. In other words, for the purpose of determining his right to have had his case submitted to the jury, plaintiff's evidence is to be taken as true so long as it is not manifestly impossible or entirely beyond all reason,...
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