Downing v. Dixon
| Decision Date | 12 May 1958 |
| Docket Number | No. 46172,No. 2,46172,2 |
| Citation | 313 S.W.2d 644 |
| Parties | Harry J. DOWNING, Respondent, v. Taft DIXON, Appellant, and Bill Hullet, Respondent |
| Court | Missouri Supreme Court |
Riddle & Baker, Veryl L. Riddle, Charles H. Baker, Malden, James A. Vickery, Caruthersville, for appellant.
Web A. Welker, Portageville, for respondent Downing.
Robert H. Jones, Jones & Jones, Kennett, for respondent Hullet.
This case is comprised of several personal injury claims, arising from a single automobile collision. The collision occurred just south of Kennett, in Dunklin County, on January 27, 1956. Plaintiff and his wife were riding with her brother-in-law, the defendant Dixon, when the latter's 1955 Ford collided at an intersection with a Chevrolet driven by the defendant Hullet. Downing sued both Dixon and Hullet in two counts, the first for his own personal injuries, and the second for loss of his wife's services and his expenses on her behalf; in his second amended petition plaintiff alleged both primary and humanitarian negligence against each defendant. In so far as any specific references to the contents of pleadings become necessary they will be made later. Defendant Dixon cross-claimed against Hullet, in two counts, alleging several grounds of specific primary negligence and humanitarian negligence in failing to warn, stop, slacken or swerve; his first count was for personal injuries and his second for property damage. Hullet cross-claimed against Dixon, in two counts, alleging specific primary negligence and humanitarian negligence in failing to warn, stop, slacken or swerve. By answers the defendants denied generally all respective negligence. Defendant Dixon specifically alleged contributory negligence of Hullet in answer to the latter's cross-claim. Hullet alleged affirmatively that the plaintiff and his wife were engaged in a joint enterprise with Dixon, but that point is not involved on this appeal. All claims were tried together; the theories of the various submissions will be discussed later. The jury found for plaintiff Downing against defendant Dixon in the amount of $5,000 for personal injuries and $400 for loss of Mrs. Downing's services and his expenses; it found in favor of Hullet on plaintiff's claim against him. It found for Hullet on his cross-claim against Dixon, $5,000 for personal injuries, and $740 for property damage. The jury returned no verdict whatever on Dixon's cross-claim against Hullet, a somewhat understandable failure arising in the necessary confusion of claims and contentions. Plaintiff filed no motion for new trial, nor did Hullet. Dixon filed three separate motions for new trial which were overruled by operation of law. He appealed in due course: (a) from plaintiff's judgment against him; (b) from Hullet's judgment against him; and, (c) from 'the judgment in favor of Defendant Hullet' on Dixon's cross-claim (as though such had been entered). Judgments were duly entered against Dixon on the verdicts in favor of plaintiff and Hullet, no reference being made therein to any disposition of Dixon's cross-claim against Hullet.
The so-called 'South By-Pass' is an east-west concrete road, 22 feet wide, south of Kennett. At its western terminus it runs into and forms a 'T' with Missouri State Highway 25, a north and south concrete road which, south of the intersection, is 19 feet and 2 inches wide. We shall, for convenience, refer to this highway as 'No. 25.' As the by-pass intersects No. 25, it is widened by a 10-foot apron along its north side,--thus, in effect, affording a three-lane entrance. The collision here in question occurred in this junction or intersection. The terrain in the quadrant south of the by-pass and east of No. 25 is open and flat. Approximately 1,000 feet south of the intersection on No. 25 is a bridge; near the bridge, on the east side, are several signs; of these one is a 'Speed Limit 35 miles' sign, one is a Highway Department sign disclosing distances to other towns, and one is a Kennett 'City Limits' sign.
It is substantially conceded that from the bridge northward, there is nothing either in the contour of the roadway or in the nature of obstructions, to keep a driver on No. 25 from seeing a car on the by-pass, and vice versa. On the north edge of the by-pass there is a regulation stop sign 57 feet east of the roadway of No. 25, and still further east a 'Junction' sign, and a 'Stop Ahead' sign. A photograph demonstrates that the view extending southwardly along N0. 25 from the stop sign on the by-pass is entirely unobstructed as far as the bridge, and only slightly impeded beyond that point by the bridge railings and the road signs. The bridge seems to be on a very slight rise. The east shoulder of No. 25 for a distance south of the by-pass is practically level and from 8-12 feet wide.
Dixon was proceeding west on the by-pass in his 1955 Ford, with plaintiff Downing on the right side of the front seat and Mrs. Downing in the middle. According to his own testimony, he stopped even with the stop sign (57 feet from No. 25) and looked first to the south, then to the north, and again to the south; he testified that he saw nothing and then proceeded steadily forward at about 5 miles an hour toward and into the intersection, without applying his brakes thereafter at any time; after he got his front wheels on the highway he saw Hullet's car for the first time; it was then about 75 feet 1 to the south, and it seemed to be traveling at 55-60 miles per hour. Dixon further testified: that he wouldn't have 'had any chance' if he had stopped then so he tried to speed up and get out of Hullet's lane; that most of his car was across the center line when Hullet hit the left side of his car at about the rear of the hood; that Hullet first swerved to his left, but then cut back to his right immediately before the collision. Dixon further stated that from the by-pass one can see to the bridge and that there was nothing closer to obstruct the view; that he had looked 'since' and verified this; that nevertheless he did not see Hullet's car until the time just stated.
Hullet testified: that he had long been familiar with this intersection; that he was driving at 60-65 miles per hour south of the bridge, but there slowed up somewhat; that just prior to the impact he was traveling at 45-50 miles an hour; that he knew he was 'in the city' when he crossed the bridge, but he didn't notice the speed limit sign, nor did he know what the speed limit was; that he had seen Dixon's car coming west on the by-pass when it was perhaps 'half a quarter' east of the intersection and saw it stop east of the intersection, presumably in the neighborhood of the stop sign; apparently Hullet saw this when he was north of the bridge, but he could not identify his location more closely. He further testified: that when he saw Dixon stop he looked away to the north along No. 25 where there seemed to be a sort of minor traffic jam (north of the intersection) which he continued to watch until the Dixon car showed up 'right in front of me,' and only 50-70 feet away; that he then 'went for' his brake and cut his wheels to the left to try to miss him; that he could not have stopped after seeing the Dixon car, and could not have missed him by swerving to the right; that he was simply wrong when he said in his deposition that he thought he could have missed Dixon by swerving to his right, although there were no obstructions on the shoulder; that if he had seen Dixon 'the second time' when 150 feet away, or possibly even less, he could have 'hit my brakes or pulled to the right and missed him,' but that the required angle of deviation was too great to permit him to swerve and miss Dixon at 50-70 feet.
For our purpose it is unnecessary to consider the other testimony; only plaintiff testified as an additional eyewitness. The evidence concerning the various and sundry injuries to all concerned is immaterial on this appeal. We do note in passing that plaintiff testified that he first looked to the left just as they started up on the highway and then saw Hullet, at which time Hullet was 3-4 car lengths away, and that he had no time to warn Dixon. The evidence fairly indicates that the roads were dry, although it had been misting further to the east at some time that morning. Both Dixon and Hullet were farmers, if that is of any consequence.
We shall first consider the appeal of Dixon from the judgment of plaintiff against him. This claim was submitted upon humanitarian negligence on the part of Dixon in failing to stop when he saw or could have seen Hullet approaching, and when he should have known that plaintiff was in imminent peril. Dixon urges: (a) that humanitarian negligence was not properly pleaded, but was defectively pleaded; (b) that instruction 5-P on the measure of damages was erroneous; and (c) that instruction 7-P was erroneous as injecting primary negligence into a humanitarian submission. Both of these instructions were given at the instance of the plaintiff. We shall consider these contentions in reverse order. Instruction 7-P was as follows: Plaintiff's counsel say that Instruction 7-P is a proper instruction merely defining the 'highest degree of care' and 'negligence,' citing State ex rel. Berberich v. Haid, 333 Mo. 1224, 64...
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