Clark v. Simmons

• Decision Date: 13 November 1961
• Docket Number: No. 48408,No. 1,48408,1
• Parties: Ramona CLARK, Appellant-Respondent, v. William SIMMONS and Zuzich Truck Lines, Inc., Appellants, and White Motor Company, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 1

351 S.W.2d 1

Ramona CLARK, Appellant-Respondent, v. William SIMMONS and Zuzich Truck Lines, Inc., Appellants and White Motor Company, a Corporation, Respondent.

No. 48408.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Goldman & Goldman, St. Joseph, for appellant-respondent, Ramona Clark.

James H. Ottman, M. Randall Vanet, Kansas City, for appellant William Simmons.

Price Shoemaker, Elmer E. Reital, St. Joseph, for appellant Zuzich Truck Lines, Inc.

Sebree, Shook, Hardy & Ottman, Kansas City, and Shoemaker & Reital, of counsel, for appellants.

W. J. Sherwood, W. H. Utz, Jr., of Smith, Sherwood, Utz & Litvak, St. Joseph, for defendant-respondent, White Motor Co.

HYDE, Judge.

Action for damages for personal injuries sustained in a collision in which the Chevrolet car in which plaintiff was riding was struck by a tractor driven by defendant William Simmons while acting as the employee of defendant Zuzich Truck Lines (hereinafter called Zuzich). Defendant White Motor Company (hereinafter called White) was the manufacturer of the tractor involved. Plaintiff had a verdict for $25,000 against Simmons and Zuzich and White had a verdict in its favor. Defendants Simmons and Zuzich have appealed from the judgment entered on the verdict against them. Plaintiff has appealed from the judgment entered on the verdict for White.

Plaintiff's evidence showed she was riding in the car, driven by her husband, north on U. S. Highway 71 in clear, dry weather. Simmons, who had been ordered to leave his trailer in St. Joseph and bring his tractor to Kansas City, was driving south. The pavement was 20 feet wide and crossed a creek at the bottom of two hills. As plaintiff's car came down the south hill, Simmons' tractor was seen coming down the north hill around a curve about 500 feet away. According to plaintiff's evidence the tractor's speed was about 65 miles per hour (Simmons said about 50) and plaintiff's husband was driving about 50 to 55 when he first saw the tractor. Plaintiff's car was slowed to 10 or 15 miles per hour before the collision, which occurred on the lower part of the south hill, and it was estimated that the tractor had at that time traveled 300 feet of the 500 feet between the two cars when it came into view. Plaintiff's evidence was that, soon after she and her hubsand saw the tractor, it went to the west side of the road hit the shoulder, then came back east across the middle dividing line of the pavement, then went back west and hit the shoulder again and thereafter came back east across the middle line and struck the left side of plaintiff's car when it was partly on the east shoulder. Plaintiff's car was knocked off the highway and landed upside down in the creek. Simmons was thrown out on to the shoulder near the point of collision and his tractor went off the highway 168 feet farther south striking and lodging against some large trees.

There was a lip or gutter at the edge of the pavement where according to plaintiff the tractor hit the shoulder the second time and went a foot or more off the pavement with the right front wheel. Defendant's testimony about this was: 'I allowed the tractor to come close to the right or west edge of the road, be in my lane. And at that time I might have let it get partially, as I say split the wheels on the edge of the road. Out to the edge of the highway, the lip or edge of the road, it fought me a little bit, see; it came back to the left. I didn't particularly worry about it; the car was quite a ways from me. But as I came to the bottom of the hill, the car got closer and I took back to the right again. And as it came back in contact with this wash or lip or gutter, it seemed to pull to the right. * * * I tried to pull it back to the left at that time, probably a little bit. Still I didn't notice anything wrong until all at once it just jumped to the left. At that time naturally I tried to pull it back to the right and that's when I noticed the steering wheel had no resistance, went slack.' It was also shown that Simmons smoked constantly and took one hand off the steering wheel to flip a cigarette out of the window just before his right wheels first went on the shoulder. Other facts will be stated in connection with our rulings.

Instruction 1 authorized a verdict against Simmons and Zuzich (uncontroverted facts hypothesized omitted) on the following findings: '[I]f you further find that said Chevrolet automobile was on the right or east half of the Highway, if so, and if you further find that at said time and place on the occasion mentioned in evidence William Simmons was operating the White tractor southwardly on said Highway #71 toward the approaching Chevrolet automobile, and you further find that William Simmons operated said tractor so that a wheel of the tractor struck the lip on the edge of the west side of the pavement, if so, and you further find that said tractor then swerved or angled over on to the east side of the pavement and collided with the Clark automobile, if so, and you further find that said William Simmons failed to operate the White tractor on the right half of the roadway and operated same on the east side of the roadway, if so, and you further find that William Simmons in said respect thereby failed to exercise the highest degree of care in the operation of said tractor, and that in so doing he was negligent, and you further find that such negligence, if any, directly caused the collision mentioned in evidence with the Clark automobile * * *.'

Simmons and Zuzich make three contentions, as points relied on, as follows: (1) that Instructions 1 and 2 are in irreconcilable conflict and are mutually repugnant, the proof of one disproving the other; (2) that Instruction 1 assumed negligence as a matter of law, failed to hypothesize sufficient facts to support a finding of negligence; and directed a verdict as a matter of law; (3) that plaintiff's evidence does not support the charge of negligence submitted.

Taking these contentions in inverse order, these defendants say the only negligence submitted against them by Instruction 1 is: '[A]nd if you further find that said William Simmons failed to operate the White tractor on the right half of the roadway and operated same on the east side of the roadway.' They say plaintiff proved only that the tractor came on to the east side of the pavement and that the steering wheel went slack; and that plaintiff brought this out by calling Simmons as a witness in presenting her case, citing Reece v. Reed, Mo.Sup., 326 S.W.2d 67, 72. However, in that case, the plaintiff showed by questions and answers from a deposition of the defendant that defendant had 'blacked out' before running into his car from the rear. We held that 'plaintiff, having presented the positive testimony and statement of defendant that she blacked out, may not successfully contend that such evidence was contradicted or destroyed by other testimony from the same witness as to facts which might warrant vague inferences to the contrary.' Nevertheless we recognized that 'a party is not bound by the unfavorable testimony of one * * * witness[es] if such testimony is contradicted.'

In this case, plaintiff's counsel was attempting to examine Simmons as an adverse party under the rules applicable to the cross-examination of witnesses (Section 491.030 RSMo 1959, V.A.M.S.) to support his alternative theory (which as hereinafter indicated we find was not supported by substantial evidence) that the striking of the lip or gutter by the tractor due to Simmons' negligence broke the ball stud loose from the relay lever of the tractor's steering apparatus; and that this was the cause of the steering wheel to going slack, if it did. 'When the plaintiff calls a defendant as his witness he is entitled to cross-examine him, Section 491.030, and plaintiff is not bound by his testimony unless it is the only testimony in the case on that point. Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 141 A.L.R. 1. He has the right to introduce evidence contradicting that given by the defendant.' (Frank v. Wabash R. R. Co., Mo.Sup., 295 S.W.2d 16, 22; Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596.) We find plaintiff did have contradicting evidence. In the first place, the maneuvering operation of the tractor (shown by plaintiff's evidence and partly corroborated by Simmons) requiring many definite turning movements of the steering wheel was substantial proof that the steering wheel was not slack before the collision. Each change in the direction of the tractor required an effective related turning of the steering wheel, or at least the jury could have so found from plaintiff's evidence. Simmons' testimony shows the tractor responded to his movements of the wheel at least until he got on the pavement the second time; and plaintiff's evidence also showed that, after Simmons traveled with his right wheels on the shoulder for some distance, he got the tractor back on the pavement before coming across to the east side of the highway. The jury could reasonably believe from the physical facts shown that pulling the tractor suddenly back over the lip could cause it to jump to the left as Simmons said it did. Moreover, Simmons said he never did claim there was anything wrong with the steering mechanism and that it was not his idea; but he also said he did tell his lawyers about the wheel going slack. These...