Conway v. Silver King Oil & Gas Co.
| Decision Date | 25 May 1936 |
| Docket Number | No. 18653.,18653. |
| Court | Missouri Court of Appeals |
| Parties | CONWAY v. SILVER KING OIL & GAS CO. et al. |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
"Not to be published in State Reports."
Suit by Arnett Conway against the Silver King Oil & Gas Company and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
Hook & Thomas, of Kansas City, for appellants.
L. L. Watts, of Kansas City, for respondent.
This is a suit for damages for personal injuries and to an automobile, resulting from a collision between a truck owned by the defendant, Silver King Oil & Gas Company, being driven by the defendant, Carl Cage, and an automobile owned and being driven by plaintiff. There was a verdict and judgment in favor of the plaintiff in a lump sum of $1,000, covering both of said items of damages. Defendants have appealed.
The facts show that the collision occurred on November 20, 1934, on Prospect avenue near its intersection with Eighty-Third street on the outskirts of Kansas City. Plaintiff was driving northwardly on Prospect avenue his Model "T" Ford car equipped with machinery for sharpening knives, scissors and the like. The defendant, Cage, was driving southwardly on said street a one and a half ton truck belonging to his codefendant. The truck was equipped with dual rear wheels, the outer one of the dual wheels on each side of the vehicle extending further outwardly from the truck than the front wheels respectively.
Prospect avenue at the point in question is paved in the center with macadam 18 feet in width. On each side of the pavement is a dirt shoulder 4½ feet in width. On each side of each shoulder is a ditch. The ditch on the east side, or the side on which plaintiff was driving, is 18 inches deep and immediately adjoining the ditch to the east is a rock embankment 8 or 10 feet in height. At the time of the collision the shoulder was muddy.
Defendant, Cage, was driving the truck southwardly astride the center of the pavement, going at a rate of speed of about 30 or 35 miles per hour. One of plaintiff's witnesses, Boschert, was driving his automobile about 100 feet to the rear, or north, of Cage and going in the same direction and at about the same rate of speed as the latter. It was about dusk, the lights of all the cars being on. Cage continued to drive his truck over the center of the pavement and did not decrease his speed until the time of the collision.
Plaintiff testified that he was driving northwardly on the right-hand, or east, side of the pavement at a rate of speed of 8 or 10 miles per hour; that he saw that the two vehicles, which afterwards proved to be those driven by the defendant, Cage, and Boschert, approaching from the opposite direction when he was at Eighty-Fourth street and they about Eighty-First street; that when he was about a block from the point of the collision he saw that the driver of the truck was not going to vary his course so plaintiff switched his lights a "little bit" to attract the attention of the truck driver and, the latter not responding, plaintiff drove his car to the right so that his right wheels were on the edge of the pavement. He drove in this manner with perhaps his front wheel a little off of the pavement until he reached the place where the collision occurred. He was watching the truck all of the time and, seeing that it was not going to vary its course, he turned his front wheels to the right 8 or 10 inches, threw his transmission gears into neutral and stopped. About that time the left outer rear wheel of the truck struck the hub cap of the left front wheel of his car, dragging his car around so that after the two vehicles came apart the truck passed on to the south of the automobile. Plaintiff's car came to a stop headed in a northwesterly direction with its front end about halfway between the center of the pavement and the west side thereof. Boschert, being so close that he was unable to avert a collision, ran into plaintiff's car, damaging it.
The defendant, Cage, testified that he was proceeding southwardly upon the west side of the pavement going at a rate of speed of about 20 miles per hour; that he noticed plaintiff's car coming in the opposite direction with his left wheels about 2 feet over the center line of the pavement toward the west; that plaintiff's car maintained this position almost to the time of the accident when plaintiff turned his car to the west; that the witness began to change the course of his car when he was 200 or 300 feet away from plaintiff's car; that when he was about 30 feet from plaintiff he turned his truck to the west so that the wheels thereof were off of the pavement; that he started getting off of the pavement about "30 feet from him (plaintiff) when he came at me, * * * he was moving in my direction at the same time"; that he did not see the collision but felt a bump.
The undisputed testimony shows that the left outer wheel of the truck and the hub cap of the left front wheel of plaintiff's car came in contact. There is no dispute in the testimony as to substantially where plaintiff's car came to rest after the collision between it and the truck.
Defendant, Cage, testified that he stopped within 25 feet after the collision. He testified that, under the circumstances (he was going down hill), he could have stopped his truck within a space of 10 or 12 feet; that he had slowed up his speed to the extent of about 5 miles per hour when he turned off of the pavement on to the shoulder; that he saw plaintiff's car approaching him when the vehicles were two blocks apart.
Cage's deposition had been taken before the trial and certain admissions contained therein were introduced in evidence by the plaintiff. These were to the effect that Cage proceeded about 300 feet after he first saw plaintiff's car before he started to turn off of the pavement; that plaintiff's car was 100 feet away from him when "he (Cage) gradually moved over"; that he was traveling at the rate of speed of about 20 miles per hour and could have stopped within a distance of 10 or 12 feet; that he did not slacken the speed of his truck until the vehicles were about 30 feet apart and plaintiff "started angling over onto my side of the street and I slowed down to about fifteen miles and went clear over into the dirt."
The petition pleaded primary and humanitarian negligence.
Defendants insist that their instruction in the nature of a demurrer to the evidence should have been given, for the reason that it was impossible for the collision to have occurred as plaintiff testified. In this connection it is said that the undisputed evidence shows that the only point of contact between the wheel of the truck and the hub cap of plaintiff's car was at the rim of the truck tire. The evidence shows that an examination of the truck after the accident disclosed no mark upon the truck except a decided backward bend on the outer edge of the rim on the left outer rear wheel, indicating that the rim had been struck to the front and not to the rear of the wheel. The evidence shows that the tire, itself, extended a half inch beyond and outwardly from the outer edge of the rim. Because there was evidence that there were no marks upon the tire, it is claimed that it was impossible for the hub cap of plaintiff's car to have struck the rim of the truck in the manner plaintiff claimed, that is, with the truck going straight and directly south; that one or the other of the vehicles must have been at a sharp angle at the moment of the collision; that if defendant's truck was proceeding in a straight line, then plaintiff's car must have been turned to the left in making the contact.
It will be noted that plaintiff's testimony shows that his car was not turned to the left but rather to the right at the time of contact. He testified that he examined the truck four days after the collision and could find no mark upon the tire or the body of the truck. The fact that there was no mark upon the tire at that time does not prove, in the face of plaintiff's testimony as to how the collision occurred, that there was not any mark immediately after the collision. Nor, are we able to say, in view of the fact that rubber is very pliable, that a mark would necessarily be left for any considerable length of time, if at all, upon the tire even though the hub cap came in contact with it prior to its striking the rim. The evidence shows that the pavement of the street was old macadam and the edges of it were rough. The evidence was such that the jury could find that it was not entirely smooth and, as the truck was coming down hill at a fair rate of speed, there may have been some sidewise motion of its rear wheels at the moment of the collision. Under all of the circumstances, we would not be justified in holding as a matter of law that it was physically impossible for the collision to have happened as testified to by plaintiff.
In this connection our attention is also called to the fact that plaintiff testified that his automobile was headed in a northwesterly direction, with its front wheels about half way between the center of the pavement and the west line thereof, when it came to a stop. It is said that, if the collision between the two vehicles came about in accordance with plaintiff's version of that happening, then the force of the collision would have tended to have pushed or thrown plaintiff's automobile to the east and not around to the rear of the truck. We would not be justified in so saying as a matter of law. There was evidence that the character of the collision was not that of a blow unaccompanied with no entanglement of the two vehicles. One witness testified that immediately after the collision the "skid marks * * * looked like you drug something across the pavement." Another witness testified that the truck "drug" the automobile and another that it "pulled it." Plaintiff testified that his car...
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