Brown v. Raffety
| Decision Date | 15 February 1940 |
| Docket Number | No. 6104.,6104. |
| Citation | 136 S.W.2d 717 |
| Court | Missouri Court of Appeals |
| Parties | O.P. BROWN, RESPONDENT, v. JULIA T. RAFFETY, APPELLANT. |
Appeal from the Circuit Court of Mississippi County. — Hon. Frank Kelly, Judge.
REVERSED AND REMANDED (with directions).
McDowell & Craig for appellant.
Ashby & Banta for respondent.
As the respondent concedes that it is substantially correct, we will adopt the appellant's statement of the case.
This cause comes to this court on appeal from the Circuit Court of Mississippi County, Missouri. The appellant was the defendant in the lower court. The plaintiff's cause of action was based on damage done to his truck as a result of an accident.
On June 7, 1938, the accident involving the parties to this appeal occurred. The appellant, Julia T. Raffety, was driving her truck, and the respondent, O.P. Brown, was driving his truck at the time the accident occurred.
The evidence in the case is not lengthy, nor is it greatly in conflict. It shows that there is a gravel road running south from the town of Wyatt. At the edge of Wyatt, the road crosses a levee, and then continues straight, almost due south, through a rural part of the county. On the morning of the 7th of June, 1938, the appellant had started down this road going south from Wyatt. About a quarter of a mile after she crossed the levee she stopped on the right-hand side of the road, and was conversing there with someone. Her truck was off of the main part of the road and was headed south.
The respondent Brown had the job, so far as we are able to tell, of hauling WPA workers to and from their various jobs; he drove a new 1938 Ford truck. On this particular morning of June 7, 1938, Brown had picked up his usual load of WPA workers, consisting on this particular morning of about twenty-seven men. He was leaving Wyatt going south on the gravel road. As he crossed the levee at the edge of the town he saw, as he looked down the road ahead of him, Mrs. Raffety's truck stopped well on the right-hand side of the road. He continued to drive toward her, going in a southerly direction. As the thus approached her from the rear, he saw her start up in her truck and proceed slowly forward, and gradually pull toward the center of the road. She continued thus forward on the right-hand side of the center of the road about five or six miles per hour, until she reached a point where another road intersects the one on which both parties were driving. At the point of intersection of the two highways, the appellant started to make a left turn onto the highway coming in from the east, and at the same time the respondent Brown attempted to pass her on the left. A collision occurred. The evidence shows that Brown recognized the truck when he first saw it as belonging to Mrs. Raffety; that he knew she farmed down this road to the left or east; that he sounded his horn, and that he was passing her at the point where her truck was crossing the intersecting highway. Other witnesses testified that Brown was passing the appellant at the point where her vehicle was crossing or entering the intersecting highway. There was no evidence to the contrary on this point.
The respondent recovered in the circuit court for the damage done to his truck and it is from that judgment that the appellant appeals.
The allegation of negligence in the amended petition is as follows:
"... .
The answer is a general denial and a plea of contributory negligence, alleging, among other things, that:
"..., damages to plaintiff were directly contributed to by the negligence on the part of plaintiff ...; in failing to exercise the highest degree of care to keep a lookout for other vehicles which were using the Highway; in attempting to pass the Defendant's automobile from the rear at a point where one Highway intersects another;... ."
This plea of contributory negligence is based on the statute relating thereto. Hence, the sole question in the case is whether the respondent, by reason of his violation of the statute (Section 7777 (e), R.S. 1929), was guilty of contributory negligence. This statute, so far as applicable here, provides:
"..., that no operator or driver shall pass a vehicle from the rear ... while the vehicle is crossing an intersecting highway."
The appellant contends that, on the undisputed evidence, the respondent violated the statute supra; that such violation constituted contributory negligence per se, and, for this reason, the court erred in submitting the case to the jury, but should have directed a verdict for the defendant as it was requested to do both at the close of the plaintiff's evidence and at the close of all of the evidence in the case.
On the other hand respondent contends that appellant was not crossing an intersecting highway but was making a left-hand turn to enter the intersecting highway, and, under such facts, the statute has no application for the reason that there is a distinction between "turning at an intersection and crossing an intersection", and that, when section 7777 (e), supra, is read in connection with section 7777 (j):
"An operator or driver intending to turn his vehicle to the left shall extend his arm at an angle below horizontal so that the same may be seen in the rear of his vehicle, and shall slow down and approach the intersecting highway so that the left side of his vehicle shall be as near as practicable to the center line of the highway along which he is proceeding before turning," and with other provisions, it becomes apparent that section 7777 (e) "was not made a law by the Legislature for the purpose of protecting the motorist who is being passed by the motorist in the rear, but others who might be endangered if the motorist in the rear should pass the one in front while the one in front is obstructing the view."
No authority, either in this State or elsewhere, has been cited dealing directly with this question, nor have we been able to find one. After giving the matter the most careful thought of which we are capable we have reached the conclusion that the court is not authorized to so limit the statute by construction. Whether or not respondent is correct in his interpretation of what the Legislature intended to say, the fact remains; that is not what the statute says. It is a remedial statute, in pari materia with section 7775, Revised Statutes, 1929, requiring the operator of every vehicle to "exercise the highest degree of care," and is to be read in connection with that statute.
Our Supreme Court, in dealing with a somewhat analogous statute, says (Wilson Co. v. Hartford Fire Ins. Co., 300 Mo. 1, l.c. 39):
"... . The statutory provision (Sec. 1155, supra) that every action shall be prosecuted in the name of the...
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