Calhoon v. D. C. & E. Mining Co.

• Decision Date: 18 January 1919
• Docket Number: No. 2336.,2336.
• Citation: 209 S.W. 318,202 Mo. App. 564
• Court: Missouri Court of Appeals
• Parties: CALHOON v. D. C. & E. MINING CO. et al.

209 S.W. 318

202 Mo. App. 564

CALHOON v. D. C. & E. MINING CO. et al.

No. 2336.

Springfield Court of Appeals. Missouri.

January 18, 1919.

Rehearing Denied February 25, 1919.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by George M. Calhoon against D. C. & E. Mining Company and Andy Nolan. Judgment for plaintiff, and defendants appeal. Affirmed as to defendant Nolan, and reversed as to the mining company.

W. R. Shuck and Frank L. Forlow, both of Webb City, for appellants.

McReynolds & McReynolds and John H. Flanigan, Jr., all of Carthage, for respondent.

BRADLEY, J.

Plaintiff sued the D. C. & E. Mining Company, a corporation, and its foreman, Nolan, to recover damages resulting to his automobile from a collision with a car owned by the defendant corporation, and driven at the time by Nolan. Below, before the court without the intervention of a jury, plaintiff recovered against both defendants and they appealed.

Two propositions as we view the record, are presented here: (1) Was plaintiff guilty of contributory negligence as a matter of law? (2) Wins Nolan at the time of the injury acting within the scope of his employment?

1. The collision between plaintiff's car and the car driven by defendant Nolan was at the intersection of two public highways in Jasper county, on September 15, 1917, about 6:20 p. m. At the time thereof plaintiff was traveling east and the defendant Nolan north. There was a cornfield on the south side of the east and west road, and on the west side of the north and south road; also along the fence on the west side of the north and south road were some walnut trees and undergrowth. The corn, trees, and undergrowth prevented one approaching this intersection from the west from seeing south along the north and south road any appreciable distance until within close proximity to the crossing. Likewise the same obstructions prevented one approaching from the south from seeing down the west highway. Plaintiff's version is substantially as follows: That both roads at and near the intersection are graveled ; that he approached the crossing at 12 or 14 miles per hour, and that some 75 or 80 feet west of the crossing he sounded his horn; that he could not see south on the north and south road until he was within about 50 feet of the crossing, and that then he could see south about 100 feet, and that he looked and saw no car approaching ; that there was a signboard some four and a half feet wide, length not given, sitting east and west near the southwest corner of the intersection ; that when he was about 18 feet from the center of the intersection, measuring from the seat of his car, he first saw the approaching car from the south, which at that time he places 40 feet away, and running 35 miles per hour ; that he made no attempt to stop his own car or change its course, because the impact came so soon after he first saw the approaching car that he had no time to stop or change his course; that they came together about the center of the crossing; that he heard no horn sounded by the defendant Nolan, and that Nolan made no effort to stop his car. Plaintiff is corroborated in his version of the affair by a witness who was accompanying plaintiff at the time. Defendant Nolan's version is about the same as to the obstructions as plaintiff gives. He says that he approached the crossing at 15 or 20 miles per hour, and that he sounded his horn when pretty near the crossing, and that he heard no horn sounded by plaintiff; that he was within 15 or 20 feet of plaintiff's car before he saw it ; that plaintiff swerved slightly to the north and then back, making a slight curve, and that as plaintiff came back to the tracks of the roadway that they then came together. The car driven by Nolan hit plaintiff's car about opposite the seat, and of the force of the impact defendant Nolan says: "It sprung my Ford so we had to buy the whole thing new."

While it is by no means absolutely certain that plaintiff was wholly free from negligence, yet we are not willing to say as a matter of law that he was guilty of negligence. He says that when within about 50 feet of the crossing he could see south along the north and south road for about 100 feet, and that he looked and saw no car. He does not say that he looked any more, and evidently he did not, as he did not see the approaching car until it came within the range of his vision. But if he looked, as he says he did, and saw no car approaching within 100 feet, and was running 12 or 14 miles per hour, then he had a right to assume that no car or other vehicle would approach the crossing at a speed sufficient to arrive there from a point 100 or more feet south thereof while plaintiff traveled 50 feet. Plaintiff places his maximum speed at 14 miles per hour, which would be approximately 20 feet per second; and he places Nolan's speed at a maximum of 35 miles, which would be approximately 50 feet per second. If it be assumed that Nolan was running 35 miles per hour, then credence can be given to plaintiff's statement that when he was within about 50 feet of the crossing he looked south for at least 100 feet and saw no car, provided we also assume that plaintiff was not exceeding 14 miles an hour. Granting that plaintiff and defendant were runing 14 and 35 miles per hour, respectively, and continued at this rate to the point of impact, then when plaintiff was 50 feet west of the crossing defendant Nolan was 125 feet south thereof. We are frank to say that the question of plaintiff's contributory negligence is a close one, yet plaintiff's version is not without the realm of probability. There are, however, many reasons why the conclusion might be reached that plaintiff did not look as he approached this crossing; but the trier of the facts did not reach that conclusion, and in view of this record we cannot interfere. Where the evidence of plaintiff's contributory negligence is such that reasonable minds might reach different conclusions then It becomes a question of fact. Meng v. Railroad, 108 Mo. App. loc. cit. 559, 84 S. W. 213 ; Barrett v. Delano, 187 Mo. App. 501, 174 S. W. 181; Hamman v. Central Coal & Coke Co., 156 Mo. 232, 56 S. W. 1091; Shamp v. Lambert, 142 Mo. App. 567, 121 S. W. 770; Linn v. Massillon Bridge Co., 78 Mo. App. loc. cit. 115. In Meng v. Railroad, supra, 108 Mo. App. loc. cit. 559, 84 S. W. 214, the court, discussing a question of contributory negligence, said:

"The question conspicuous at the threshold of an examination of the case, and earnestly and diligently discuss, ed by respondent, is the right of plaintiff to have the case submitted to the jury by the denial of the customary imperative instruction tendered at close of plaintiff's testimony. Defendant's contention being that, as the colliding car was in plain view and within a short distance, it was manifestly impossible, if in the proper exercise of his senses of sight and hearing, the plaintiff could have escaped warning of its approach, and in attempting to pass over the tracks before a rapidly moving car he was convicted of such contributory negligence on his part as to debar his recovery. The question whether the conduct of a plaintiff, under a given state of facts, constituted contributory negligence, has been reiterated to be sometimes a question for the count and sometimes a question for the jury. Upon the state of facts demonstrated by plaintiff's testimony as surrounding the collision, the conclusion might reasonably be reached that plaintiff was guilty of contributory negligence, particularly in the light of personal details narrated by plaintiff and held up by appellant as contradictory and inconsistent with conceded facts. But in considering this question every reasonable inference and intendment in favor of plaintiff must be deduced from the testimony, and only where the evidence is substantially all one way, and no two opinions can be formed in the minds of fair-minded, reasonable men of ordinary intelligence, should its effect be declared by the court; but where such description of men might well differ as to...