Brooks v. Stewart
| Decision Date | 09 May 1960 |
| Docket Number | No. 47710,No. 1,47710,1 |
| Citation | 81 A.L.R.2d 508,335 S.W.2d 104 |
| Parties | Harry BROOKS, Respondent, v. Cloid F. STEWART, Appellant |
| Court | Missouri Supreme Court |
Powell & Jones, Dexter, for appellant.
Briney & Welborn, Bloomfield, McHaney & McHaney, Kennett, for respondent.
This is an action for $25,000 damages for the wrongful death of plaintiff's wife. Verdict and judgment were for defendant, but the court set the judgment aside and granted plaintiff a new trial for error in giving defendant's Instruction No. D-5. Defendant has appealed.
Late in the afternoon of January 18, 1956, while snow was falling, plaintiff accompanied by his wife was driving his 1955 Plymouth automobile in a southerly direction on the west side of Highway No. 25 and, at a point approximately eight-tenths of a mile north of the intersection of Highway No. 25 and Route AA in Stoddard County, plaintiff's automobile collided head on with a state highway grader operated by the defendant. Plaintiff's wife sustained serious injuries which caused her death on January 29, 1956. Defendant was operating the grader in a northerly direction on the west or left side of the highway blading snow off of the pavement.
Although the petition contained several allegations of negligence, the only finding of negligence which plaintiff submitted to the jury was that defendant 'was negligent in operating the said highway grader on the left or west side of said highway without having warnings of its approach in front of said grader * * * at a time when said left or west side of the highway was not free of oncoming traffic.' All other assignments were abandoned. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93(1).
Appellant contends that the court erred in granting plaintiff a new trial (1) because Instruction D-5 was not erroneous; and (2) because the court should have sustained defendant's motion for a directed verdict as requested by defendant at the close of all the evidence. Appellant says: (a) There was no evidence that defendant was negligent; (b) the plaintiff was guilty of contributory negligence as a matter of law in failing to stop or swerve; and (c) the defendant was performing a governmental function in grading snow off of the highway in order to make the highway safe for public travel and, therefore, was not guilty of negligence.
If plaintiff failed to make a submissible case for the jury, he was not prejudiced by the giving of Instruction D-5. Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, 442; Howard v. Johnoff Restaurant Co., Mo.Sup., 312 S.W.2d 55, 56; Seeley v. Hutchison, Mo.Sup., 315 S.W.2d 821, 824 (1). If defendant's motion for a directed verdict presented at the close of all the evidence should have been sustained, the trial court erred and abused its discretion in granting plaintiff a new trial. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 826; Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, 661(1-3); Schmidt v. Allen, Mo.Sup., 303 S.W.2d 652, 655. From a careful consideration of the record we have reached the conclusion that the question of plaintiff's contributory negligence is the decisive issue in the case.
Plaintiff was 66 years of age and was engaged in selling hail insurance. He had attended a meeting in Cape Girardeau and was returning to his farm home when the collision occurred. He had been over the same road 'a lot of times', including the morning before the collision. While plaintiff had been blind in his right eye since he was 16 years of age, his left eye was 'good'. He could see off at a distance 'practically' as well without glasses, although he wore glasses for reading purposes.
Plaintiff left Cape Girardeau about 2 p. m., shortly after it had started to snow, and by the time he reached Highway No. 25, 'it was snowing pretty bad' and it 'commenced to snow harder.' Plaintiff drove south on Highway No. 25 at around 30 m. p. h. The weather was rough. 'It was snowing and sleeting and freezing' and so slick he was afraid to drive fast. Snow covered both sides of the road. He figured it was about two inches deep. There were ruts in the ice and snow. After plaintiff had driven 40 to 45 miles from Cape Girardeau and had reached 'a little curve coming down the hill', he saw the grader with which he subsequently collided. There was still some curve down to where the grader was located. He judged the grader was moving, coming north towards him, but when he first saw it he could not tell whether it was on the right or left side of the road. When he first saw the grader from the top of the hill, it was something like 300 yards away. He was 'probably 75 yards' away when he determined it was on his side of the road. It was on 'the grader man's left-hand side' of the road, on the west side, plaintiff's right-hand side.
Plaintiff testified: 'I was trying to get over on the other side, and my car slipped and went sideways, and I thought it was going to turn over, so I whipped back and was going to take the ditch, and I couldn't ever get it out of them ruts no more.' When plaintiff put his brakes on, it seemed like he picked up more speed going down hill. He 'couldn't say hardly at all' about his speed at the time of the collision, but it was 'something like 20 m. p. h.'
Plaintiff fixed the time of the collision as Plaintiff had his car lights 'on dim' and the grader's lights were on. About a mile or so before the collision occurred, plaintiff had met and passed another state highway grader going north on the east (plaintiff's left) side of the road. It was blading snow off of the east side of the highway and leaving that side of the highway 'fairly clean.' Plaintiff, however, continued to drive in the snow on his right-hand side of the highway. When plaintiff first saw the second grader, he was approximately 300 yards from it, it was just getting to a small curve, but plaintiff could not say exactly where the grader was in this curve when the collision occurred. He said he did not see the grader go around this curve. Plaintiff was 'practically over' the second curve north of Bloomfield when the collision occurred, but he had not reached the second curve after he came over the hill. When he came over the hill he was in the act of going on a curve to his right. The grader was then not too much to his left, but it was down where you straighten out to go to Bloomfield and where there is not too much of a curve. He could not say how far the grader had moved from the time he first saw it until the collision occurred. It was coming toward him all of the time. It didn't look to him like it ever stopped. While it seemed to him like it was moving when the collision took place, he couldn't say positively. When he saw the grader he 'tried to get over one way or the other.' Later he said he didn't start to turn to the right or left until he was about 50 or 75 yards from the grader. He said he had 'practically' gone 200 or 250 yards before he tried to turn to the right or left, after he saw the grader, but at that time he didn't know which side of the road it was on. About the time he saw the grader, he slackened speed by lifting his foot off the accelerator and putting his foot on the brake. He did that after he passed the hill and straightened out. Before he saw the grader, he had gotten clear around the curve on the hill and was starting down the grade where 'it is not too awful steep.' He also said he saw the grader before he got off of the curve on the hill; that he took his foot off the gas and put his foot on the brake immediately and that was before he straightened out. He did not try to turn to the left or right until 'about 50 or 75 yards before' he got to the grader.
Plaintiff further testified:
'
When plaintiff first saw the grader, he did not see the big red flags sticking out on both sides of the grader that said 'Danger.' He did not see them until he was leaving the grader after the collision, but he judged they were there before the collision. He did not see any big red flag sticking up above the cab on the grader.
Plaintiff further testified that, as he approached the hill in question, there were no warning signs along the highway in front of the grader, nor did he see any signs before he reached the top of the hill and saw the grader in the valley below. There were no signs on the highway to notify him that the grader was coming on the...
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