Branscum v. Glaser
| Decision Date | 11 December 1950 |
| Docket Number | No. 41588,No. 1,41588,1 |
| Citation | 234 S.W.2d 626 |
| Parties | BRANSCUM v. GLASER |
| Court | Missouri Supreme Court |
B. J. Creech, Troy, George F. Heege, Clayton, Williams & Huston, Troy, (Wm. Hungate, Troy, of counsel), for appellant.
Byron G. Carpenter, Julian C. Jaeckel and Moser, Marsalek, Carpenter, Cleary & Carter, all of St. Louis, for respondent.
Action for $15,000.00 damages for wrongful death of plaintiff's husband, killed in a collision between his car and defendant's gasoline tank truck. Verdict and judgment for defendant, from which plaintiff appeals.
The case was submitted solely upon humanitarian negligence. Plaintiff alleges error in giving and refusing instructions and improper cross-examination and oral argument. However, we have concluded that these matters are immaterial because plaintiff failed to make a case for the jury and defendant's motion for a directed verdict should have been sustained. Bello v. Stuever, Mo.Sup., 44 S.W.2d 619, and cases cited. We will, therefore, state the facts shown by the evidence most favorable to plaintiff.
On April 14, 1948, plaintiff's husband Cagle Branscum, accompanied by his son Troy Branscum, was driving his automobile (an Oldsmobile) south on Highway C (a north and south highway of St. Louis County) approaching its intersection with U. S. Highway 50, on which defendant's truck was being driven west by his employee Thomas Eatherton. The pavement was wet from intermittent rains. The Branscums were going to Eureka, which required them to cross Highway 50 and continue on Highway B which was an extension of Highway C south of the intersection. There was an 'S curve' on Highway 50 east of the intersection but it was possible to see from 1000 to 1200 feet east from the intersection. On Highway C also, the approach from the north was on a curve. However, on both highways, there was a four lane straight strip about 40 feet wide and 150 feet long on each side of the intersection. There were hills on each side of the intersection, on all four approaches to the intersection, so that the approach was down grade from every direction, although it was level on the south. lane strips except on the one to the south. The view north on Highway C, of one approaching from the east, was obstructed by trees and shrubbery and there was also a house at the northeast corner of the intersection. The testimony was that it was possible to see north on Highway C from 75 to 100 feet (one witness said 150 feet) when 400 feet east of the intersection on Highway 50. There was a stop sign on both the north and south sides of Highway 50 facing traffic coming on to Highway 50, but none for traffic on Highway 50, which, therefore, had the right of way.
A Highway Patrolman (witness for plaintiff) who came to the scene soon after the collision between defendant's truck and Branscum's car, fixed the point of collision from debris and marks on the highway as about two feet north of the center line of Highway 50 and about two feet west of the center line of Highway C. The collision marks on the Branscum car extended back from the windshield, showing that the front of the Branscum car was two or three feet over the center line of Highway 50 at the time of the collision. There were no skid marks east of the point of collision on Highway 50 and none north of that point on Highway C. There were marks from that point southwest across Highway 50 to the place where both vehicles were found south of that highway after the collision.
The only account of what occurred was given by Troy Branscum. He said his father stopped at the stop sign on the north side of Highway 50; that 'he changed gears and started across the highway' and was going 'approximately 12 to 15 miles per hour'; and that 'the truck hit us instantly and that is all that I remember.' He said he first saw the truck 'just as it hit us.' He did not say that his father looked east before proceeding into the intersection. He said he had never been over the intersection before but that his father had. Defendant had evidence that no stop was made by the Branscum car.
Plaintiff made several allegations of...
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