Clason v. Lenz

• Decision Date: 12 June 1933
• Docket Number: No. 31103.,31103.
• Citation: 61 S.W.2d 727
• Parties: CLARENCE L. CLASON v. JOSEPH C. LENZ, Appellant.
• Court: Missouri Supreme Court

61 S.W.2d 727

CLARENCE L. CLASON v. JOSEPH C. LENZ, Appellant.

No. 31103.

Supreme Court of Missouri, Division One.

June 12, 1933.^*

Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Brown, Douglas & Brown for appellant.

(1) There was no evidence of any negligence of any kind or character on the part of the defendant, which was the proximate cause of this injury. Therefore, plaintiff under no circumstances was entitled to a verdict. It was erroneous to grant a new trial, since the verdict originally was for the right party, and it was erroneous to refuse the demurrer offered at the close of plaintiff's evidence and again at the close of all the evidence in the case. Stewart v. Jeffries, 224 Mo. App. 1050, 34 S.W. (2d) 560; Castler v. Tures, 210 N.W. 415; Northern v. Chesapeake and Gulf Fisheries Co., 320 Mo. 1011, 8 S.W. (2d) 982; Wren v. Suburban Motor Transfer Co., 241 S.W. 464. (2) The Instructions I and K offered on behalf of the defendant and given by the court, were based on Instruction I given on behalf of the plaintiff. They discuss the same facts and the same conditions as plaintiff's Instruction 1. They were invited directly by plaintiff's instruction numbered one, and were proper, and it was erroneous to grant a new trial on account of the giving of these instructions. Carr et ux. v. St. Joseph, 225 S.W. 922. (3) Plaintiff in this case was guilty of the grossest contributory negligence. His negligence was such that as a matter of law he was precluded from any recovery. Consequently, it was error to grant a new trial, for any reason, since plaintiff by his own testimony has convicted himself of contributory negligence. Interstate Motor Freight Co. v. Johnson, 168 N.E. 143; Hughes v. Luther, 128 S.E. 145; Ruth v. Vroone, 222 N.W. 155; Axton-Fischer Tobacco Co. v. Landrum, 3 S.W. (2d) 1082; Frazier v. Hunter, 156 S.E. 268; Haney v. Troost et ux., 219 N.W. 594; Beck v. Flasch, 240 N.W. 190; Forrester v. Outagamie Equity Coop. Exchange, 221 N.W. 376; Mayne v. May Stern Furniture Co., 21 S.W. (2d) 211; Wheeler v. Wall, 157 Mo. App. 38, 137 S.W. 63.

James H. Hull, Melvin J. Duvall and W.J. Boyd for respondent.

(1) The defendant was guilty of negligence in parking and leaving parked and standing on the highway his motor vehicle truck and trailer and the load thereon so near to the curve in said roadway west of the truck that the view and vision of persons driving westwardly along said highway was thereby obstructed or obscured. Jones v. Mo. Freight Transit Corp., 40 S.W. (2d) 471; Mayne v. May, Stern Furniture Co., 21 S.W. (2d) 211; Ridenhour v. Ok. Contracting Co., 45 S.W. (2d) 108. The trial court rightly ruled defendant's demurrer to the evidence at the close of plaintiff's case and at the close of the whole case. See cases cited, supra. (2) The trial court rightly sustained plaintiff's motion for a new trial. (a) Defendant, in his answer pleaded that plaintiff was guilty of certain specific acts which were denominated as negligent and alleged that such acts contributed directly to cause plaintiff's injuries, yet Instructions I and K each authorize and direct a verdict for the defendant without any reference to such specific acts of alleged negligence and they, and each of them, were erroneous. State ex rel. Bank v. Globe Indemnity Co., 220 Mo. App. 155, 2 S.W. (2d) 821; Herrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Gordon v. Postal Teleg. Co., 24 S.W. (2d) 644; Dodge v. Kirksville, 260 S.W. 1012; Shumake v. Norton, 215 Mo. App. 87, 238 S.W. 813; Garvey v. Ladd, 266 S.W. 727; Heriford v. K.C. Rys., 220 S.W. 899; Head v. Leming Lumber Co., 281 S.W. 441; Crossin v. Ry. Co., 180 S.W. 454. (b) Said instructions I and K were each erroneous in that they, and each of them, gave to the jury a roving commission to set up their own standards of negligence, and did not limit the jury to the alleged acts of contributory negligence pleaded in the answer. See authorities cited above. (c) Instruction I in addition to going outside of and beyond the alleged acts of contributory negligence specified in the answer and giving to the jury a roving commission to set up its own standards of negligence, is vicious, in that it assumes, without having the jury find, that plaintiff, by exercising the highest degree of care after being confronted with an emergency and after having realized the situation, could have avoided colliding with the load upon said truck and trailer. (d) Instruction K, in addition to going outside of and beyond the alleged acts of contributory negligence specified in the answer and giving to the jury a roving commission to set up its own standards of negligence, contains the vice of assuming, without having the jury find, that plaintiff failed to exercise proper care, under the circumstances, to avoid coming in contact with the truck or trailer, and then directs a verdict for defendant regardless of all other facts and circumstances in evidence. (3) Plaintiff was not guilty of contributory negligence and the trial court committed no error in granting plaintiff a new trial. Jones v. Mo. Freight Transit Corp., 40 S.W. (2d) 465; Mayne v. May, Stern Furniture Co., 21 S.W. (2d) 211; Ridenhour v. Ok. Contracting Co., 45 S.W. (2d) 108.

HYDE, C.

This is an action for damages for plaintiff's personal injuries and damage to his automobile, which resulted from plaintiff's automobile skidding and striking some electric light poles on defendant's truck and trailer. The negligence charged in plaintiff's petition is that defendant negligently parked his truck and trailer thereto attached, loaded with forty-five-foot electric light poles, on the pavement of State Highway No. 1, in violation of the warnings of the State of Missouri and contrary to custom; that he allowed them to remain parked there so near to a curve that they obstructed the view of persons traveling westwardly on the highway; and that he thereby created a dangerous obstruction on the highway, of which he negligently failed to give any signal or warning.

Defendant's answer admitted parking his truck and trailer on the pavement and that plaintiff collided with it, but denied all other allegations and set up as contributory negligence on the part of plaintiff the following facts:

"Plaintiff was traveling at a high and dangerous rate of speed, in excess of forty-five miles per hour; that the highway was wet and slippery; that plaintiff saw, or in the exercise of the highest degree of care could have seen the defendant's truck and trailer when plaintiff was from eight hundred to one thousand feet from the same, and in ample time to have stopped or slowed down his automobile and to have thereby avoided the collision; that nevertheless, plaintiff knowing the slick and slippery condition of the highway and the position of said truck and trailer thereon, negligently failed to stop his automobile, to slacken the speed thereof, or to take any other steps to avoid colliding with said stationary truck and trailer; that plaintiff negligently failed to keep a lookout for automobiles coming from the opposite direction, and negligently undertook to pass to the south of said truck and trailer, without first having ascertained whether any automobile was approaching upon the highway from the opposite direction; that plaintiff negligently continued to operate his automobile in the manner above described until he ran into and collided with said truck and trailer."

State Highway No. 1 was a much traveled road, at the time the only paved highway through Holt and Andrew counties leading to St. Joseph and Kansas City. The pavement was concrete, eighteen feet wide. The scene of the accident was seven or eight miles west of Savannah. Measurements by an engineer, who was defendant's witness, showed that the highway near this place went down grade west from the top of a hill for a little more than 1,000 feet, then curved to the north on an eight-degree curve. About 130 feet from the beginning of the curve, there was a private driveway leading to a farmhouse. Defendant and his brother each owned trucks and were hauling poles, which were to be used in the construction of an electric line. This line ran along the highway to the point of the curve and thence on west, across a pasture. The truck and trailer belonging to defendant's brother, loaded with poles for that part of the line, had been driven off the highway, nearly to the pasture gate just west of the beginning of the curve, where his trailer stuck in a mudhole. Defendant drove up with his truck and trailer, likewise loaded with poles, and went to assist his brother in extricating his trailer from the mudhole. Defendant's testimony was that he left his truck on the north half of the pavement with the back end of the poles about forty-five feet west of the farm house driveway; that poles were forty-five feet long and rested upon both the trailer and the part of the truck behind the cab; and that from the cab to the front end of the truck was about ten feet, so that the truck, trailer and poles took up about fifty-five feet of the highway. The front end of the truck was, therefore, about thirty feet from the beginning of the curve. Plaintiff's evidence placed it perhaps ten or fifteen feet closer. The cab of the truck was seven or eight feet high and four and one-half to five feet wide. The poles stuck out fifteen or twenty feet behind the end of the trailer. The truck, as parked, came about to the center of the highway so that only one car at a time could pass on the pavement to the south of it. On the north side of the road, there was a bank seven or eight feet high, which somewhat obstructed the view of the highway beyond the curve. It had rained that day and the shoulders of the highway were muddy. Defendant's truck was left unattended, without any signal or warning, on the highway, to show it was there, except that there was a red flag on the end of the poles. Defendant admitted that h...