Dawson v. Scherff
| Decision Date | 11 July 1955 |
| Docket Number | No. 44229,No. 1,44229,1 |
| Citation | 281 S.W.2d 825 |
| Parties | Sanford R. DAWSON, Appellant, v. Weaver W. SCHERFF, Doing Business as Scherff Truck Lines, Respondent |
| Court | Missouri Supreme Court |
Curtis Quimby, Jefferson City, and R. J. Horsefield and Douglas H. Jones, St. Louis, for appellant Sanford R. Dawson.
Wilbur C. Schwartz and Roberts P. Elam, St. Louis, for (defendant) respondent, Joseph Nessenfeld, St. Louis, of counsel.
This case came to the write on reassignment.
Plaintiff had verdict and judgment for $40,000 for personal injuries sustained when an automobile driven westward by him collided with a bridge abutment as he overtook and attempted to pass defendant's westbound truck. Defendant's motion to set aside the verdict and for judgment in accordance with his motion for directed verdict filed at the close of the evidence or, in the alternative, for a new trial, was sustained. The verdict and judgment were set aside, judgment was rendered for defendant and, in the alternative, defendant was granted a new trial on grounds the verdict was against the weight of the evidence and based upon false or mistaken testimony, and for error in the refusal of one of defendant's requested instructions. Plaintiff appealed. The questions thus posed are whether, under the evidence, a submissible case was made and, if so, whether the trial court erred in granting a new trial.
The casualty occurred between 12:00 noon and 12:30 p. m., November 16, 1951, on U. S. Highway No. 50, about 15 miles east of Jefferson City. Plaintiff, a representative of National Distillers Products Corporation, travelling alone in his 1948 Cadillac automobile, was en route from his home in Kirkwood to Jefferson City to attend a sales meeting. At the same time a one and one-half ton motor truck of defendant, a licensed carrier of freight, was being driven westward on said highway by defendant's agent, Wilbur Herndon, with a cargo of freight for local deliveries along its route, including three cases of whiskey for delivery to Mead's Cafe, situate immediately west of the point of the collision and on the south side of the highway. Riding in the rear end of the truck and facing eastward was a young man, named Robert Duncan, 17 years of age, employed as a helper to Herndon in unloading freight.
Highway 50, of concrete construction, 20 feet in width, extends in a general eastwest direction and crosses a 67-foot bridge over Loose Creek. It was the southeast abutment of this bridge with which plaintiff's car came in contact. Beginning about a quarter of a mile east of the bridge, the highway slopes in a slight curve to within a distance of 152 feet of the east end of the bridge where it straightens, crosses the bridge and extends on westward in a straight level course for more than one-half mile. The slight curve in and slope of the highway east of the bridge did not obscure the vision of the driver of either vehicle or have any bearing upon the facts in controversy. Visibility was good, the pavement dry.
Plaintiff testified on direct examination: When he was 1,200 feet east of the bridge, he saw two westbound passenger cars ahead of him, travelling closely together at a speed of 30 to 35 miles per hour. He increased his speed to 40-45 miles per hour and passed them when they were 600 or 700 feet from the bridge. As he passed these cars he was aware of defendant's truck also proceeding westward approximately 200 or 300 feet ahead of the cars. After passing the two cars, he turned his car back into the westbound (north) lane and then saw that defendant's truck was not going as fast as he had thought. It was moving about 30 miles per hour. Plaintiff sounded his horn, slightly increased his speed, and turned his car into the left (south) lane to pass the truck. When he was approximately 300 feet east of the bridge and the front wheels of his car were approximately even with the rear wheels of defendant's truck, defendant's truck came over slightly into the left lane. Plaintiff again sounded his horn and touched his brake lightly, thinking the truck would return to its proper lane. By that time, plaintiff's car and defendant's truck were within 80 or 100 feet from the east end of the bridge. At this point, the truck, without any warning, came all the way over into the south lane. Plaintiff either had to go into a deep ravine to his left, hit the truck or strike the left abutment of the bridge, because 'he (defendant's operator) come directly in front of me when we were within a few feet of the bridge abutment.'
When defendant's truck turned all the way over into the south lane, plaintiff had decreased his speed to 25 or 30 miles per hour and the truck had increased its speed. During this time the left wheels of plaintiff's car had gotten onto the south shoulder of the highway. Plaintiff had 'to cut my wheel with everything I had to get out of his way, and apply my brakes.' The sharp application of his brakes when the two left wheels of his car were on the grassy-gravel shoulder caused plaintiff's car to skid. The right front wheel of his car struck the abutment, resulting in serious injuries to plaintiff. He was not, however, rendered unconscious. His car was badly damaged and was later sold for $200.
There was no contact between the truck and plaintiff's car. Although plaintiff sounded his horn when he first turned out to pass the truck, sounded it again when he first applied his brakes lightly and 'blew the devil out' of it just before the collision, no portion of the truck ever returned to its right side of the highway. There was no traffic in front of or coming toward the truck and plaintiff from the west.
After his car struck the abutment, plaintiff watched the truck go across the bridge and turn to the left off the highway to Mead's Cafe, which is about 38 feet south of the highway and 250 to 300 feet west of the bridge. Plaintiff called out for some one to get the name of the operator and license number of the truck and, before he was removed to the hospital, a heavy cardboard bearing the truck's license number was thrown into his car.
On cross-examination, plaintiff testified: He saw no reason to turn back into his lane when the truck first veered slightly over the center line. There was no indication it was about to turn to its left and there was no emergency. His car ran alongside the truck for a split second--possibly, 50 feet. When the car and truck were 200 feet from the bridge, the truck was one foot, more or less, across the center line. The truck may have increased its speed when it was 30 feet from the bridge, but he was not sure it did. Plaintiff said he had succeeded in reducing the speed of his car to 20 to 30 miles per hour before striking the abutment; later, he estimated his speed at that point at 15 to 20 miles per hour. Plaintiff admitted that on the day before (during the instant trial) he testified the truck was only part of the way (two-thirds) over the center line when it reached the abutment and that he had testified at a prior trial that when the truck reached the bridge it was all the way over; and that he had so testified in a deposition. Plaintiff never at any time during the 1,200 feet of travel exceeded 50 miles per hour. When his car wheels were even with the truck's rear wheels, plaintiff's speed was about 40 miles per hour, defendant's speed 30 miles. Plaintiff admitted that in a deposition he had testified that the front end of his car was appriximately 'abreast' of the truck when it began to crowd over into the left lane, meaning that the front wheels of his car and the front wheels of the truck were approximately even, and that during the instant trial he had said that his front wheels were even with the rear wheels of the truck at that time. His explanation of this discrepancy was:
Plaintiff admitted that in a deposition he had testified that when he was attempting to pass the truck and was within 'possibly 30 feet of the bridge (instead of 80-100 feet as he testified in the instant trial), he (the truck driver) cut directly in front of all of it, over to my lane and remained there until he had crossed the bridge * * *.' Plaintiff's explanation of this discrepancy was that footage was a hard thing to estimate and that the aforesaid distance could have been 30 feet or it could have been 100 feet.
Defendant's evidence was: The truck operator's (Herndon's) first stop on the trip was to be at Mead's Cafe. As he approached the bridge over Loose Creek, he was travelling 25-30 miles per hour. When he neared the bridge, he put out his hand as a slow signal, intending to slow his vehicle, looked into his rear view mirror and saw two cars to his rear. One of the cars had started to pass him but returned to its lane after he gave the slow signal. When his truck had passed 100 feet west of the bridge, Herndon heard the squeal of brakes, looked into his rear view mirror and saw defendant's car hit the abutment. This was the first instant he had seen plaintiff's car. He drove on down and across the highway to Mead's Cafe, stopped his truck and returned to the scene of the collision. There was skid marks extending from the rear of plaintiff's car a distance of 84 feet to the center line of the highway. The truck never at any time crossed over the center line of or encroached upon the...
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