Brown v. Moore

• Decision Date: 14 April 1952
• Docket Number: No. 1,No. 42603,42603,1
• Citation: 248 S.W.2d 553
• Parties: BROWN v. MOORE et al
• Court: Missouri Supreme Court

Page 553

248 S.W.2d 553

BROWN v. MOORE et al.

No. 42603.

Supreme Court of Missouri, Division No. 1.

April 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 12, 1952.

Robert L. Jackson, W. H. Norton, Kansas City, for appellant Brown.

Hook & Thomas and Inghram D. Hook, all of Kansas City, for appellant Moore.

Roy P. Swanson, Charles B. Blackmar, Robert W. Dammann and Blackmar, Newkirk, Eager, Swanson & Midgley, all of Kansas City, for respondent.

DALTON, Judge.

Action for $26,200 damages for personal injuries and property damage sustained in a collision of automobiles occasioned by the alleged negligence of defendants (master and servant) in failing to operate the automobile of defendant Locke, Inc. (hereinafter referred to as Locke) as close to the right-hand side of the highway as was practicable. Defendant Moore, the operator of the automobile owned by defendant Locke, filed a counterclaim for $25,000 damages for personal injuries alleged to have been sustained on account of plaintiff's negligence in driving his automobile at an excessive rate of speed, failing to keep a proper lookout for vehicles ahead, not operating his automobile as close to the right-hand side of the highway as practicable and in driving said automobile into collision with the automobile operated by defendant Moore. Defendant Locke filed a counterclaim to recover $2,500 damages on account of damage to its automobile sustained by reason of plaintiff's alleged negligent operation of his automobile.

On trial, the jury found the issues on plaintiff's petition for plaintiff and against both defendants and assessed plaintiff's damages at $500. The issues on the respective counterclaims of Moore and Locke were found in favor of the plaintiff. Both defendants and the plaintiff filed motions for a new trial. Defendant Locke also filed a motion to set aside the verdict and judgment and to enter judgment for defendant Locke or in the alternative for a new trial. All three motions for a new trial were overruled but, on the same date, the court sustained defendant Locke's motion to set the verdict and judgment aside and enter judgment for said defendant. The motion was sustained on paragraph 4, towit: 'The evidence affirmatively shows that plaintiff was guilty of contributory negligence as a matter of law in swerving his car suddenly from the right side of said highway in front of and into defendant's said automobile, and in not sounding his horn or applying his brakes or in any way attempting to avoid said accident.' Plaintiff Brown and defendant Moore have appealed.

Appellant Moore and respondent Locke insist that appellant Brown's own testimony shows contributory negligence as a matter of law, barring any recovery. Appellant Brown insists that he was not guilty of contributory negligence as a matter of law; and that the trial court erred in sustaining respondent Locke's motion to vacate the verdict and judgment and in entering judgment for defendant Locke. A review of the evidence favorable to plaintiff on the issue of contributory negligence is required.

It was admitted that the alleged collision occurred on the afternoon of March 12, 1949, on U. S. Highway 71, approximately one-quarter of a mile north of Grandview, Missouri; that the automobile operated by defendant Moore was owned by defendant Locke; and that defendant Moore was 'in the general employ of Locke, Inc.'

U. S. Highway 71 at the place in question is paved. It has three traffic lanes and there is a gentle downhill slope toward the north. A side road extends east from the highway. There were yellow lines, or traffic control marks, on the highway. One yellow line confined northbound traffic to the east lane of the highway. Another yellow line, intended to confine southbound traffic to the west lane, did not begin until some 54 feet south of the point of collision. At the intersection of the side road there were no traffic control marks or yellow lines to confine southbound traffic to the west lane of the highway. Moore, a witness on behalf of both defendants, testified that he was familiar with the yellow lines on the day in question at the place in question. He said that it was the duty of northbound cars to be in the east lane, but that 'southbound traffic could still be in the center lane.' He further said that Brown had not reached, but was only approaching the yellow line or point where southbound traffic was supposed to start pulling back to the west lane.

At about 5:40 p. m. on the day in question Brown, who was operating a 1942 Pontiac automobile, was traveling south, uphill, in the west lane of the highway at 20 to 30 miles per hour. It was snowing awful hard and Brown had the headlights on. He had driven the road many times and was familiar with it. He was overtaking another automobile (the Binns' car) traveling in the same direction and, when about 100 feet behind it, he pulled out into the center lane to pass. He was about one-third of the way up the hill and would have had time to pass before reaching the top of the hill. It was then snowing so hard he could not see the top of the hill. He could not see more than 25 to 30 feet beyond and to the left of the Binns' car until he had pulled out into the center of the highway to pass it. Before he started to pull out, he could see 125 to 135 feet and to the left of the Binns' car. He didn't see Moore's car until he (Brown) had started to pull out of the west lane. He then saw Moore's car almost in the center lane and 75 to 100 feet or more to the south and pretty close to the Binns' car. Moore was operating a 1947 Pontiac automobile northward and was driving at 35 to 40 miles per hour. When Brown first saw Moore's car it was coming out of the east lane and over toward where Brown's car was on the highway. At the time the left front wheel of Brown's car passed over the line between the west lane and the center lane, Brown's car was moving at approximately 35 miles per hour. Moore's car was coming down the hill and down the highway in a slanting direction toward Brown's car. It 'was coming kind of in a diagonal direction, kind of antigoglin' and right beside Binns' or approximately so. The Moore car came within two or three feet of hitting Binns' car. It looked like Moore's car was going to come over to the west side of the highway, and Brown tried to get over to the other side. Brown pulled to the left, turned left, to avoid Moore's car. Brown did not turn back to the west lane because that would have been in the direction Moore was coming. Brown made no effort to turn right, and back into the west lane, nor did he have time to do so. To have turned back west would have been in the direction Moore's car was coming. He tried to turn left to avoid Moore's car, but before he had time to either get over out of the way, or to get back in the west lane, the collision occurred in the center lane of the highway. Only part of Brown's car was out in the center lane at that time. The right front of Brown's car collided with the right front of Moore's car. There was no evidence as to whether Brown sounded his horn or applied his brakes and no such issue is now raised. The point of collision on the highway was 15 feet north of the side road. Brown's car came to rest in the east lane of the highway headed north and partly off the pavement some 45 feet north of the side road. Moore's car came to a stop chiefly in the center lane of the highway headed east and extending into the east lane some 20 feet north of the side road. The cars were then 25 to 30 feet apart.

Appellant Moore contends that the court erred in overruling his motion for a directed verdict, which raised the issue of plaintiff's contributory negligence. The motion for a directed verdict was not mentioned in Moore's motion for a new trial, but appellant Moore did complain of plaintiff's instructions submitting the case to the jury. Moore's theory is, as stated, that Brown's own testimony shows contributory negligence as a matter of law; that Brown had an unobstructed view of Moore's car before Brown turned out directly into its path; that Brown's so turning was the proximate cause of the collision; that Brown must be held to have seen what he could have seen had he been looking; that he was charged with the duty to look and to see; and that the failure to see what could have been seen by proper observation in the exercise of the highest degree of care bars recovery. Appellant Moore insists that 'plaintiff himself admitted contributory negligence directly or by necessary and inescapable conclusion.' Appellant cites Secs. 304.010 and 304.020 RSMo 1949, V.A.M.S., and numerous cases. The sections and the cases cited are not decisive of the issue presented under the facts shown. None of the cases cited involve a consideration of the issue of contributory negligence under similar facts.

On the issue of plaintiff's contributory negligence respondent Locke adopts the argument of appellant Moore and further contends that the yellow lines mentioned in evidence are 'simply placed for the guidance of highway users'; and that they have no legal status to relieve a motorist from his duty to keep a careful lookout before undertaking to pass. These yellow lines, which were known to the parties familiar with the highway, were a part of the facts and circumstances for the consideration of the jury on the issues of negligence and contributory negligence. The same facts are for our consideration on the issue of contributory negligence as a matter of law.

We think the issue of contributory negligence was for the jury. On plaintiff's evidence an inference could be drawn that Moore's car was not in the center lane, nor had it started to enter that lane when Brown started to pull into the center lane, since, when Brown was partly in the center lane, he saw Moore's car coming out of the east lane. Brown further said it was coming in a slanting direction...