Costello v. M. C. Slater, Inc.

• Decision Date: 17 May 1949
• Docket Number: No. 27555.,27555.
• Citation: Costello v. M. C. Slater, Inc., 220 S.W.2d 947 (Mo. App. 1949)
• Parties: COSTELLO v. M. C. SLATER, Inc.
• Court: Missouri Court of Appeals

220 S.W.2d 947

COSTELLO v. M. C. SLATER, Inc.

No. 27555.

St. Louis Court of Appeals. Missouri.

May 17, 1949.

Motion for Rehearing or to Transfer to Supreme Court Denied June 17, 1949.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

Not to be reported in State Reports.

Action by Lee Costello against M. C. Slater, Inc., for personal injuries sustained by plaintiff in collision between automobile operated by plaintiff and a tractor-truck and trailer operated by defendant's employee. Verdict and judgment for plaintiff and defendant appeals.

Judgment affirmed.

Milford T. English, St. Louis, for appellant.

Everett Hullverson, St. Louis, Forrest Boecker, St. Louis, for respondent.

McCULLEN, Judge.

This action was brought in the Circuit Court of the City of St. Louis, Missouri, by respondent, as plaintiff, to recover from appellant, as defendant, damages for personal injuries alleged to have been sustained by plaintiff as the result of a collision between an automobile operated by plaintiff and a tractor-truck and trailer operated by defendant's employee on May 20, 1947, in the City of Edwardsville, Illinois.

A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $2,500. In due time defendant filed a motion to set aside the verdict and judgment and, in the alternative, motion for a new trial, which was overruled by the court. Whereupon defendant duly appealed.

Defendant contends that the court erred in refusing to direct a verdict in its favor and strongly urges that plaintiff's evidence and the record facts failed to make a case for the jury; that plaintiff's evidence was impossible as opposed to the physics of the case and beyond reason and is, therefore, to be disregarded. This contention requires a rather full statement of the evidence adduced by plaintiff.

Plaintiff testified that on the day in question she was operating a 1940 Chevrolet Coach southwardly on Highway 66 in the State of Illinois; that as she came to the city limits of the City of Edwardsville in that state, she reduced her speed to thirty miles per hour and that when she came to a curve in the highway within said city she made a right hand turn around the curve; that the highway was a two lane street; that as she started around the curve, which was shown to be a curve of approximately 105 degrees, she was traveling not more than ten miles per hour; that she saw defendant's tractor and trailer outfit (also referred to as truck) traveling eastwardly on the right hand or proper side of the black line in the highway coming toward her automobile; that when she first saw the tractor-trailer "it was still down the street a piece" and that the driver thereof "started, more than likely to cross the black line at the corner"; that she pulled her automobile to the right against the curbing. She then said that the "first part of the truck missed me but the trailer part of the truck hit the front of my car then." Referring to the driver of the tractor-trailer, plaintiff said: "he didn't even stop, he kept going all the way around the curve and halfway down the next block and then he stopped and he got out of his car, and our radio aerial had caught on his car, and he took that aerial off the truck and threw it onto the highway, and he started to get back in the cab and I called to him, and he came back to the car and he just laughed and he said, `Oh, there isn't much damage here, just that fender, that is all, you need never think about it, we are insured, they will take care of it.'"

Plaintiff further testified: "Q. Now, at the time this collision took place what happened to you in the car? A. Well, when he hit me, why I was thrown forward and twisted sort of like this, twisting my back, and I hit my teeth on top of the steering wheel." Plaintiff further testified that she was too excited to notice any pain at that time but that on her way home from the scene of the accident her back started hurting her "terribly"; that her teeth did not bother her until after several days when she went to Dr. Handler, a dentist; that she did not see Dr. Handler until October 21, 1947; that she did not complain about her teeth to Dr. Spoeneman, to whom she went for treatment for her back.

On cross-examination, plaintiff testified that her automobile was facing west when she first saw the tractor-trailer headed eastwardly and at that time it was about 120 feet distant from her; that when she saw the truck and trailer coming at her on the wrong side of the road she pulled over as far to the right as she could after she had gotten around the curve. Plaintiff was asked to describe the course that the truck took from the time she saw it, 120 feet away, and answered: "Well, instead of being over on this side of the black line, and swing around the other round turn that it had to turn in, it cut across the black line and come right towards me." The witness further testified that when she first saw the tractor-trailer her car was not going more than ten miles an hour. In this connection plaintiff said: "Well, I was starting to stop, I had turned my, turned my wheels over to the right of the curb, I saw he was coming across the black line, and I wanted to get as far away from him as I could." Plaintiff further testified:

"Q. The front end of your car did not hit the front end of the tractor, did it? A. No.

"Q. It hit the left rear wheel on the trailer, is that right? A. My car didn't hit him, I was stopped.

"Q. The two points of contact, the left wheel on the trailer, and the left front of your car came together, is that right? A. That is right.

"Q. Those are the only two parts that touched each other? A. That is right.

"Q. Now, at the time of these two parts contacting each other, had your car moved, was your car moving, or was it stopped at that time? A. I had stopped.

"Q. Completely stopped? A. Yes, sir."

Elsie Farmer, plaintiff's mother, testified that she was riding in the front seat of plaintiff's automobile and witnessed the accident; that her daughter made the turn when she saw the tractor-trailer outfit traveling eastwardly; that the tractor-trailer came on to their side of the road. At this point, the witness testified:

"Q. Now, did you observe whether at any time that it come over the line, that is, over the center line? A. Yes, as it come towards us, I could see it was coming over the line.

"Q. Well, I say, did you actually see that it came over the line? A. Yes.

"Q. It did come over the line? A. Yes.

"Q. And at that time where was your car, that is, your daughter's car riding? A. Well, I wasn't driving the car, so I don't know, I couldn't say just where she was.

"Q. Well, was it — with respect to the center line of the street, and the edge of the street, which way was she —? A. She was on her side.

"Q. What did she do as to her driving. A. She pulled over on the right."

The witness testified that plaintiff did not complain of any injuries after the accident and that the witness did not notice any mark of any kind on plaintiff's face or her mouth. She said her daughter acted like she was in pain.

Arthur Eugene Farmer, plaintiff's brother, testified that he was in plaintiff's car, but that he was reading a book and did not see the accident; that there were no cuts or bruises on plaintiff's mouth at the time after the accident and that she did not complain of any injuries or that her back was hurting her at that time.

Francis Avery Roberts, the driver of defendant's tractor-trailer, testified for defendant that his outfit was forty-two feet long overall and 46,000 pounds gross weight; that he was traveling about ten miles per hour at the place of the accident and about three feet south of the center of the highway; that as he rounded the curve his left rear wheels were about eight inches on his side of the road and that plaintiff's automobile struck the left rear of his trailer. It is not necessary to set forth any more of said driver's testimony, for, under the rule presently to be mentioned, in determining whether plaintiff made a case for the jury, we must disregard all testimony in conflict with plaintiff's testimony.

Defendant argues that it was incumbent upon plaintiff to place before the jury facts upon which the jury could reasonably and intelligently conclude that the defendant was negligent, and that a resulting injury occurred directly attributable to said negligence and directly flowing therefrom; that the mere fact that the front of the automobile of plaintiff and the left rear portion of the trailer being pulled by defendant's tractor collided is not itself proof of defendant's negligence. Defendant insists that the evidence is unrefuted that the left front of the automobile and the left rear of the trailer were the parts colliding; that the tractor and trailer unit was forty-two feet long and that plaintiff's automobile struck one of the left rear wheels of said trailer and that the entire tractor and front part of the trailer escaped collision. From this viewpoint defendant argues that it is impossible for the accident to have occurred as plaintiff and her witnesses testified; that plaintiff's automobile was facing west when the truck was still 120 feet away, and, therefore, both vehicles were parallel; that plaintiff then turned to the right and stopped, which would place the left front of her car a greater distance from the north of the center line of the highway than the left rear of her car; that "Under those facts the front end of the tractor would have had to have done the damage as there is no allegation or evidence that the tractor-trailer was operating broadsides down the street." Defendant asserts that it was impossible for a jury to reasonably infer from plaintiff's evidence how the accident occurred without resorting to speculation and conjecture.

We are unable to agree with defendant's contention on this point. We...