Condos v. Associated Transports, Inc.

• Decision Date: 24 March 1970
• Docket Number: No. 33268,33268
• Parties: Virginia CONDOS, Plaintiff-Respondent, v. ASSOCIATED TRANSPORTS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 682

453 S.W.2d 682

Virginia CONDOS, Plaintiff-Respondent, v. ASSOCIATED TRANSPORTS, INC., Defendant-Appellant.

No. 33268.

St. Louis Court of Appeals, Missouri.

March 24, 1970.

Gerald D. Morris, St. Louis, for defendant-appellant.

Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for plaintiff-respondent.

BRUCE NORMILE, Special Judge.

In this case plaintiff was a passenger in an automobile involved in a collision with a tractor-trailer unit operated on defendant's behalf. Plaintiff received a verdict and judgment in the amount of $10,000.00. Defendant appeals.

The accident in which plaintiff was injured occurred at about nine o'clock a.m. on June 12, 1964, a clear, dry day, on U.S. Highway 66, at the northwest edge of St. Clair, Missouri. At that point, the highway runs generally east and west. The two westbound lanes are divided from the two eastbound lanes by a grassy median. Each westbound lane is concrete and 12 feet wide. Along the north or right side of the westbound lanes is a solid, gravel shoulder 12 feet wide. The road is straight for a considerable distance in the vicinity of the accident and westbound traffic is traveling downhill. The crest of the hill is about 1,000 to 1,500 feet east of the point of the accident. Both vehicles were traveling westwardly. The accident occurred on or just north of the westbound lanes at a private gravel drive which intersects the north edge of the highway and leads back northeastwardly to a plant operated by the Steelweld Corporation. This private drive is about 20 feet wide with the mouth of it being somewhat wider. The east edge of the drive is lower than the west edge and the east curb of the drive is broken down at the end of a culvert running under the drive. Directly south of the private drive is a cross-over between the two westbound lanes and the two eastbound lanes.

Plaintiff was a passenger in a 1959 Cadillac operated by her son-in-law, William Harp. The defendant's vehicle was a tractor-trailer auto transport rig with a total length of 50 feet and a width of 8 feet. It was loaded with two automobiles on the bottom deck and three panel trucks on the top deck. Defendant's driver was Mr. Charles R. Hensic, who was familiar with the highway and the private drive into the Steelweld Corporation Plant.

There is a sharp conflict in the evidence relating to the movement of defendant's tractor-trailer unit and its position on the highway at the time of the impact.

Plaintiff's evidence was as follows: The Harp car was in the left-hand lane when it came over the crest of the hill east of the private drive. Defendant's vehicle then first came into view an unknown distance ahead in the right-hand, westbound lane. At about this time the left turn signal on defendant's rig began to flash and the whole rig moved from the right-hand lane completely into the left-hand lane. Thereafter, defendant's rig continued to slow down. Its brake lights flashed off and on, and as it neared the point of accident, they remained on constantly. At all times defendant's left turn signal was flashing. Mr. Harp moved into the right-hand lane when a distance of 500 feet separated the two vehicles. He was aware of the cross-over ahead of both vehicles going left from the westbound lanes over to the eastbound lanes. When the Cadillac reached a point in the right-hand lane where it was either even with or a short distance behind the trailer in the left-hand lane, the tractor-trailer started to turn to the right into the path of the Cadillac. Mr. Harp sounded his horn, applied his brakes, and swerved to the right. However, the collision occurred with impact to the front, left-hand corner and side of the Cadillac and to the right side of the tractor, at the right door and front fender. Both vehicles pretty well stopped at impact with the Cadillac completely off the paved portion of the highway and completely on the private drive to the north of the highway. The tractor portion of defendant's rig was mostly into the private drive facing northwest with the trailer blocking the right lane and a large part of the left lane of the highway. The Cadillac left 30 paces of skid-marks which began on the right-hand, westbound lane and veered to the right on the shoulder and into the drive up to the rear wheels of the Cadillac. The vehicles remained in contact after they came to rest.

Mr. Hensic's version of the accident was as follows: He had created the hill in the right-hand, westbound lane at about 20 miles per hour intending to make a right turn into the private drive to get to the Steelweld Plant. He had turned his right turn signal on at the crest of the hill and it remained on up to the time of the accident. When he was about 65 feet from the private drive, Mr. Hensic turned into the left lane, 'Six, eight inches, something like that, just enough to get over far enough so I could swing in.' When asked why he didn't make the right turn from the right-hand lane, Mr. Hensic testified, 'That was impossible'; and he explained: 'There's a culvert there and you can't turn a 50-foot outfit into the driveway at that angle.' Mr. Hensic did not see the Cadillac prior to his turn to the right towards the private drive. His first notice of danger was the squealing of tires. At impact his tractor had cleared the north edge of the pavement by about 4 inches and was at the west edge of the drive. The trailer completely blocked the right lane and a small part of the left lane.

In rebuttal to Mr. Hensic's evidence, plaintiff submitted the evidence of a registered engineer, Mr. Bilhorn, who stated that defendant's tractor-trailer rig could have made a right turn into the drive from the right-hand hand without moving into the left lane at all.

Defendant's first assignment of error relates to the submission of Instruction No. 3 which reads as follows:

'Your verdict must be for the plaintiff if you believe:

'First, defendant in approaching the intersection intending to turn right and in making a right turn failed to drive its tractor-trailer as close as practicable to the right hand edge of the highway, and

'Second, as a direct result of such conduct, plaintiff sustained damage

unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.

(MAI 17.17 Modified)'

Instruction No. 3 is based on violation of § 304.018 RSMo V.A.M.S. 1959, subd. 1(1) as follows:

'1. The driver of a vehicle intending to turn at an intersection shall do so as follows:

'(1) Both the approach for a right turn and while making a right turn, shall be made from that portion of the roadway as close as practicable to the right-hand curb or edge of the highway; * * *.'

Instruction No. 3 was a modified MAI 17.17 'per se negligence--improper turn'. It did not refer to negligence nor require a finding that the defendant's submitted conduct was negligent.

Defendant first urges that the instruction erroneously omitted a required finding of 'negligence' and held defendant to an absolute, inflexible standard which was not applicable under all the circumstances.

A failure to comply with the statute, in the absence of a showing of a reasonable excuse for its non-observance, constitutes negligence per se. Lix v. Gastian, Mo.App., 261 S.W.2d 497, 501, Rowe v. Kansas City Public Service Co., 241 Mo.App. 1225, 248 S.W.2d 445, 448. The fact that the parties present conflicting and divergent theories of the manner in which the collision occurred does not preclude one injured by violation of the statute from relying upon negligence per se. Lincoln v. Railway Exp. Agency, Inc., Mo., 359 S.W.2d 759, 764, Jones v. Smith, Mo., 372 S.W.2d 71, 77.

In Lincoln v. Railway Exp. Agency, Inc., supra, and Anthony v. Jennings, Mo.App., 368 S.W.2d 533, 537 the courts stated:

'* * * It has been frequently stated that traffic regulations are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions, Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, and that the duties thereby imposed may be qualified by circumstances, Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, such as considerations of safety, Lix v. Gastian, Mo.App., 287 S.W.2d 354, emergency conditions, Lewis v. Zagata, 350 Mo. 446 166 S.W.2d 541, Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or impossibility. Politte v. Miller, supra. (Mo.App., 301 S.W.2d 839). In such unusual circumstances deviation from the statutory standard will not be considered as negligence per se.'

Unless there are such unusual circumstances here, the facts hypothesized in Instruction No. 3 do make out a case of actionable negligence on the part of the defendant as a matter of law; and it would not be necessary to submit to the jury the question of whether or not such facts constituted negligence. Courtney v. City of Ferguson, Mo.App., 401 S.W.2d 172, 175.

Essentially the defendant urges that the necessity for Mr. Hensic to turn the tractor-trailer unit to the left before he could make the right turn (as required by the length of the tractor-trailer rig, the narrowness of the drive, etc.,) constituted such an unusual circumstance so as to qualify the requirements of the statute. The defendant relies upon Lincoln v. Railway Exp. Agency, Inc., supra, Lix v. Gastian, supra, Garrison v. Ryno, Mo., 328 S.W.2d 557, and Anthony v. Jennings, supra.

The Lincoln case involved a charged violation of Section 304.018, Subd. 1(2), V.A.M.S., 1959, which requires an approach for a left turn to be made in the portion of the right half of the roadway nearest the center line. Defendant's leading vehicle had made a left turn in front of plaintiff's overtaking vehicle. Plaintiff's instruction No. 1 there, submitting defendant's failure to approach for a left turn from that part of the roadway nearest the center line, did not require a finding of negligence. Defendant-Appellant...