Chailland v. Smiley

• Decision Date: 14 January 1963
• Docket Number: No. 48487,48487
• Citation: 363 S.W.2d 619
• Parties: Louie CHAILLAND, Respondent, v. Franklin Elwood SMILEY, Appellant.
• Court: Missouri Supreme Court

Page 619

363 S.W.2d 619

5 A.L.R.3d 288

Louie CHAILLAND, Respondent, v. Franklin Elwood SMILEY, Appellant.

No. 48487.

Supreme Court of Missouri, En Banc.

Jan. 14, 1963.

Ford & Ford, Wendell W. Crow, James F. Ford, Kennett, James W. Steinsiek, Oscar Fendler, Blytheville, Ark., for appellant.

Dalton & Treasure, John Hall Dalton, Harold B. Treasure, James C. Bullard, Kennett, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff sued for damages for personal injuries and property loss sustained when a tractor-trailer truck owned and operated southward by defendant on Highway 'Y' in Dunklin County came into collision with a horse owned and ridden southward on said highway by plaintiff, causing death of the horse and physical injuries to plaintiff. The case, originally filed in the Circuit Court of Dunklin County, went on change of venue to and was tried in Stoddard County, resulting in a verdict and judgment for plaintiff for the sum of $15,000 for personal injuries sustained by him and $500 for the loss of his horse. Defendant has appealed, asserting error as follows: that plaintiff failed to make a submissible case of defendant's alleged failure to stop his truck and thereby avoid the collision; that plaintiff was contributorily negligent as a matter of law; error in plaintiff's submission instruction 'P-1' and plaintiff's measure of damages instruction 'P-2'; improper and inflammatory remarks by one of counsel for plaintiff during closing argument; improper and prejudicial statements on the part of the trial judge in orally instructing the jury during trial, in commenting on the evidence and in expressing his views and opinions as to the facts and the sufficiency and weight of the evidence; and improper and prejudicial admission of certain hospital records.

The appeal herein was originally heard and an opinion rendered in Division. Thereafter, the case was transferred to Court en Banc, where it was reargued and resubmitted upon the briefs filed in Division. Portions of that opinion will be adopted without use of quotation marks.

In determining defendant's contention that plaintiff failed to make a submissible case and his further contention that plaintiff was guilty of contributory negligence as a matter of law, we view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences and disregard defendant's evidence, except to the extent it may be favorable to plaintiff. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 663.

The collision occurred 3/8ths of a mile south of Caruth, in Dunklin County, about 1:00 p. m. on May 13, 1959, a clear day. Highway 'Y' at the scene and for at least one-fourth mile north thereof is a straight and level north-south blacktop road, 21 feet wide with a marked center line and has a good 6-foot shoulder on each side.

Plaintiff was sixty-six years of age and had engaged in farming, carpentering, and training horses. He was considered a good horseman. The horse, a filly named Tangerine, lacked about two months of being three years old. Plaintiff bought her when she was about three months old and had been riding her eleven months, training her for five gaits. He described her as the gentlest, best dispositioned filly he ever handled. She did not buck or try to run away; neither did she have a habit of 'backing up'. During early training, she showed fear of bicycles and, colt-like, wanted to go home, both of which faults she easily got over. Plaintiff rode her four or five times a week, six miles each way, and had ridden her on 'this blacktop' and other highways. She had given him no trouble on any of them. As plaintiff started south on 'Y' on this occasion, he stopped and talked to a hitchhiker, Albert Brisher. As he talked with Brisher, a car and a gravel truck passed without incident. Plaintiff then proceeded south at about five miles per hour along the center of the west shoulder of Highway 'Y'.

Defendant, 38 years old, engaged in farming and trucking, was southbound in his tractor-trailer unit, with a 27,500-pound load of gravel. The tractor was 8 feet long, the trailer 16 feet long and 7 1/2 feet wide. He stopped and picked up the hitch-hiker, Albert Brisher, and saw plaintiff about a quarter of a mile ahead of him. Thereafter plaintiff was at all times within defendant's view.

About 15 seconds before the collision, plaintiff heard an 'awful noise', a spitting popping, backfiring, missing noise, to his rear, north of him. The noise frightened the filly and she squatted, made a couple of little jumps, and turned her rear slightly toward the blacktop. Plaintiff spoke to her, tapped her on the neck, touched her with his heels, and she started lining up with the highway. About 3 seconds later, 12 seconds before the collision, the noise, 'worse than ever', began again and she became unruly. Plaintiff tried to get her under control but never completely got control of her after she first became scared. She began to 'work' slightly backward toward and onto the center of the blacktop. Plaintiff got a glance at the truck's cab as it passed him and, in an instant, the left rear of the horse and the west side of the trailer, about three feet from its rear end, collided. At that moment the tractor-trailer was about 18 inches west of the center line and traveling 25 to 30 miles per hour. The collision knocked the filly back in the direction of the west shoulder. She was fighting to stay on her feet. Plaintiff, feeling she was going to fall and might injure him, 'brought [his] foot over' and pushed the filly from him. He sustained severe injuries when he landed about the center of the blacktop. The filly fell at the edge of the blacktop and died.

Defendant testified that after he picked up the hitchhiker, Brisher, he started his truck in low gear and increased his speed. He pulled to the east to go around plaintiff when about 150 feet north of him; his vehicle was on the east side of the blacktop about as far as it could be and remain on the blacktop as he passed plaintiff, at which time his truck was traveling about 30 miles per hour. When the tractor got even with plaintiff the horse started 'showing out big' and running backward toward the truck and defendant heard it strike the right rear of the trailer. He pulled over onto the west side of the blacktop and stopped in 150 to 200 feet. The trailer brakes were new and good and the tractor brakes were ordinarily good brakes. He did, however, plead guilty in the magistrate court to the charge of having 'insufficient brakes', to avoid the expense of hiring a lawyer.

Trooper Frank Sheible arrived at the scene about 1:45 p. m. He drove the tractor-trailer just far enough to test the brakes. He testified the tractor did not have any foot brakes and that 'it was a noisy rig.' He did not test the trailer brakes.

Additional evidence will be stated as necessary to determine certain of the assignments of error.

Did plaintiff make a submissible case of actionable primary negligence on defendant's failure to stop? Under the evidence favorable to plaintiff the noise from defendant's truck frightened the filly and her actions gave defendant notice of plaintiff's efforts to control, but lack of control over, her while defendant was approaching the point of impact, about 12 seconds. Plaintiff was in defendant's line of vision. Defendant never attempted to stop before the collision after having attained a speed of approximately 30 miles per hour. He pulled over to the west side of the road and stopped in 150 or 200 feet after the collision. At 30 miles per hour, a vehicle travels approximately 44 feet in a second. Plaintiff's case was clearly submissible on defendant's primary duty to stop. Priebe v. Crandall, Mo.App., 187 S.W. 605, 607; Schulkey v. Brown, 59 N.D. 345, 230 N.W. 6[1, 2]; 60 C.J.S. Motor Vehicles Sec. 381, p. 935; Holloway v. Barnes Grocer Co., 223 Mo.App. 1026, 15 S.W.2d 917.

Defendant's contention that plaintiff was contributorily negligent as a matter of law is based upon plaintiff's failure to look to his rear and to dismount from his horse. Plaintiff knew that something, but not what, was coming from the north. He at no time looked to his rear. He thought he was agile enough to have 'jumped' off the filly in 15 seconds, but he made no attempt to do so. Upon hearing the second noise, 12 seconds before the impact, the filly became completely unruly, put herself into a bow, bowed her head towards the center of the highway and worked backward onto and toward the center of the blacktop. Plaintiff was working with, pulling and reining, the filly, 'hoping I'd get her under control without having no collision.' He stated that when a horse bows 'you can't rein them nowhere.' Defendant cites the following cases: Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 625-626[12-14]; Carpenter v. Kansas City Pub. Serv. Co., Mo., 330 S.W.2d 797, 800; Curtis v. Capitol Stage Lines Co., Mo.App., 27 S.W.2d 747, 750[1-4]; Adkins v. Boss, Mo., 290 S.W.2d 139, 144. They do not control the situation here presented. The rider of a horse, an animate object, does not have that exclusive control over the horse's and his own movements as does the pedestrian or motorist, who, ordinarily and under the circumstances of this record favorable to plaintiff, has and should have exclusive control over himself and the movements of the machine he operates. Moreover, defendant was under a duty to exercise the highest degree of care. Plaintiff's duty was to exercise ordinary care. The duties and abilities of the parties to avoid the collision in the available seconds were not the same; defendant being in the better position and plaintiff having a right to rely to some extent upon defendant's exercising the required care to avoid injurying him and his filly. Annotation, 50 L.R.A., N.S., 566; 38 Am.Jur., Negligence, Secs. 185, 188, pp. 862, 864-865; 61 C.J.S. Motor Vehicles Sec. 466, p. 25 et seq. Defendant's contention that ...