Brown v. Toedebush Transfer

• Decision Date: 05 November 1945
• Docket Number: 39130
• Citation: 190 S.W.2d 239,354 Mo. 611
• Parties: Walter L. Brown, Administrator of the Estate of Leslie Phillips Brown, Deceased, Appellant, v. Toedebusch Transfer, Inc., a Corporation
• Court: Missouri Supreme Court

190 S.W.2d 239

354 Mo. 611

Walter L. Brown, Administrator of the Estate of Leslie Phillips Brown, Deceased, Appellant, v. Toedebusch Transfer, Inc., a Corporation

No. 39130

Supreme Court of Missouri

November 5, 1945

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Fred Wesner and Trusty & Pugh for appellant.

(1) The defendant was under a duty to maintain a lookout not only ahead but laterally as well. R.S. Ann., Sec. 8383, Note 20; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Hornbuckle v. McCarty, 243 S.W. 327; Kaley v Huntley, 63 S.W.2d 21; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113. (2) The court erred in refusing to give the plaintiff's instruction marked 1 which was based on the duty of the defendant to maintain a lookout. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Bongner v. Ziegenheim, 165 Mo.App. 328, 147 S.W 182; Capps v. Beene, 162 S.W.2d 80.

Carl L. Crocker, Watson, Ess, Groner, Barnett & Whittaker, Carl E. Enggas, and Douglas Stripp for respondent.

(1) The refusal of Instruction 1 was neither erroneous nor prejudicial because the real issue, which the court submitted at plaintiff's request, was whether defendant drove on the wrong side of the road. The jury found defendant's vehicle was always on the right side and failure to keep a lookout was neither the proximate cause nor a material issue in the case. Walnut Park Loan & Inv. Assn. v. Hennkens, 121 S.W.2d 179; Krelitz v. Calcaterra, 33 S.W.2d 909; Carle v. Akin, 87 S.W.2d 406; Arnold v. May Dept. Stores Co., 337 Mo. 727, 85 S.W.2d 748; Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602; Weinel v. Hesse, 175 S.W.2d 903; Pharies v. Century Elec. Co., 131 S.W.2d 879; Sec. 8385, R.S. 1939; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Albright v. Joplin Oil Co., 206 Mo.App. 412, 229 S.W. 829; Robinson v. Ross, 47 S.W.2d 122; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Bach v. Ludwig, 109 S.W.2d 724; Feeherty v. Sullivan, 129 S.W.2d 926; Huger v. Doerr, 170 S.W.2d 689; Roznowski v. East St. L. Ry. Co., 81 S.W.2d 969; Jacobson v. Beffa, 282 S.W. 161; Hutchison v. St. Louis-S. F. Ry. Co., 335 Mo. 82, 72 S.W.2d 87. (2) The court did not err in refusing Instruction 1 because it was not supported by the evidence. Carner v. St. Louis-S. F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947; Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847.

OPINION

Douglas, J.

Deceased was riding in an automobile going east on Highway 40 on a February night. There was snow on the ground and some parts of the highway were coated with ice. Several miles west of the New Florence junction the automobile collided head on with defendant's truck comprising a tractor and trailer. Three of the four occupants of the automobile were killed.

Plaintiff, administrator of deceased's estate, alleges in his petition the collision was caused by the truck being on the wrong side of the highway. He then specifies two acts of negligence on the part of defendant namely, (1) failure to keep a lookout ahead; and (2) failure to drive as close to the right-hand side of the highway as practicable.

The sole survivor of the occupants of the automobile testified he was riding "scooted down in the back seat looking out the right side of the window" when an exclamation of alarm came from the occupants of the front seat which caused him to raise up to the rear of the front seat and look ahead along the highway. He saw the truck traveling on his side of the highway coming toward him. They collided head on in the middle of the highway.

The driver of the truck testified he was driving west on Highway 40. At the New Florence junction he saw a highway sign warning of ice on the pavement. After traveling a short time he saw in the distance ahead of him the lights of an approaching car coming over the crest of a hill, so he dimmed his lights. Shortly he observed that the approaching lights "swerved to the south and then they swerved back to the north." He drove the tractor completely off the pavement and on the shoulder and only the left rear tire of the trailer was on the pavement when the automobile crashed into the left front end of the tractor. Witnesses who came to the scene of the accident said the highway west of the place of collision was icy or slippery.

The sole issue of negligence submitted by the court to the jury was whether the collision was caused by the truck being driven on the wrong side of the highway as presented in one of plaintiff's offered instructions. The court gave for the defendant a converse of this instruction. The jury found for defendant and plaintiff appeals.

The only question for decision is whether the court erred in refusing another instruction offered by plaintiff on the failure of defendant to keep a lookout ahead. Such instruction proposed to charge the jury that if defendant failed to keep a reasonably careful and vigilant lookout ahead which directly contributed to the collision and was the direct and proximate cause of deceased's death, then the jury should find for plaintiff.

It is well established by the decisions that the duty imposed by statute on a motor vehicle operator to drive in a careful and prudent manner and exercise the highest degree of care now requires the operator to keep more than a mere lookout ahead. He must keep a careful or vigilant lookout both ahead and laterally. Sec. 8383, R.S.A. 1939, Anno. Note 20.

There are cases where a failure to keep such a lookout was the only negligent act which directly caused the accident. This was so in Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21 where an automobile was being driven on a clear, unobstructed road when the driver turned her head to talk to an occupant of the back seat. The automobile left the road and crashed into a tree injuring a passenger.

In a case of contributory negligence, where the failure of plaintiff to keep a proper lookout causes an accident such is, of course, solely sufficient to uphold a judgment for defendant. In Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, plaintiff attempted to pass an automobile traveling ahead of him in the same direction and failed to observe whether the other lane of the highway was clear before doing so and saw def...