Ely v. Parsons

• Decision Date: 18 January 1966
• Docket Number: No. 31919,31919
• Citation: 399 S.W.2d 613
• Parties: J. E. ELY, Plaintiff-Respondent, v. Gordon PARSONS, Parsons Construction Company, and Harold H. Parsons, Defendants, Gordon Parsons and Harold H. Parsons, Appellants.
• Court: Missouri Court of Appeals

Page 613

399 S.W.2d 613

J. E. ELY, Plaintiff-Respondent, v.Gordon PARSONS, Parsons Construction Company, and Harold H Parsons, DefendantsGordon Parsons and Harold H. Parsons, Appellants.

No. 31919.

St. Louis Court of Appeals, Missouri.

Jan. 18, 1966.

As Modified Feb. 21, 1966.

Charles E. Rendlen, Jr., of Rendlen & Rendlen, Hannibal, for appellants.

Marion F. Wasinger and Frank B. Harvey, of Carstarphen, Harvey & Wasinger, Hannibal, for respondent.

JAMES D. CLEMENS, Special Judge.

The keystone of this case is the question of defendants' negligence as a matter of law.The plaintiff was driving his automobile along a highway when the defendants' road grader emerged from a private road.There was a collision, causing damage to both vehicles.PlaintiffJ. E. Ely sued and defendantGordon Parsons counterclaimed.The jury found against the plaintiff on his petition and for the defendantGordon Parsons on his counterclaim.The trial court granted plaintiff a new trial, and defendantsGordon Parsons and Harold H Parsons appeal, the only issue here being whether the trial court was justified in granting the new trial.

It was granted primarily on the ground that the driver of the grader, defendantHarold Parsons, was contributorily negligent as a matter of law.The trial court further based its order on the ground that it had erred in allowing the defendant to amend the counterclaim at the close of evidence.Additionally, the plaintiff claims he was entitled to the new trial for errors in empaneling the jury and in a given instruction.However, we believe the issue of the defendants' contributory negligence is decisive on this appeal, and we so limit our opinion.We state the pertinent facts in a light favorable to the defendants.

State HighwayNo. 19 runs due east and west through Ralls County, between the towns of Perry and New London.There is a paved surface twenty feet wide with concrete flanges about six inches wide and four inches higher than the pavement.This paved surface is flanked by six-foot shoulders and by ditches and back slopes of unstated widths.The highway was being repaired, and defendantGordon Parsons had a subcontract for grading the shoulders, ditches and entrances.The highway was liberally marked with warning signs, which plaintiff ignored.The Arch Robertson farm lay on the south side of the highway, and a private road led upgrade from the highway to his house.The defendants' work included grading this entrance.DefendantHarold Parsons was near the Robertson house, 75 to 100 feet back from the highway, operating his grader down the private road toward the paved portion of the highway.Meanwhile, the plaintiff was driving eastward at 50 to 60 miles per hour along the very south, right-hand edge of the paved portion of the highway.Each driver's view of the other was unobstructed for one-half to one mile.When plaintiff was about half a mile west of the Robertson entrance he saw the grader, which was then about a hundred feet back from and headed down toward the highway.Harold Parsons was then at a stop, and although he looked both ways he did not see plaintiff coming from the west.Harold Parsons then 'set his blade' and begun moving the grader forward, at a speed of less than one mile per hour, without again looking toward the highway.He testified:

'Q.Now you told Mr. Rendlen that you were back about a hundred feet from this driveway when you looked both ways and you saw a car coming from the east but didn't see any thing coming from the west, is that right?

'A.I said approximately, didn't I, seventy-five to a hundred feet.

'Q.Well, whatever it was.I thought you said a hundred feet, but whatever you said, you looked and you saw a car coming from the east and none coming from the west, is that right?

'A.That's right.

'Q.Then you put your blade down and it took about two minutes to get down to the highway and you never looked again, is that right?

'A.I never looked east or west, no, sir.'

Plaintiff did not see the grader again until the moment of impact and the defendants' grader had just come to a stop when the two vehicles collided near the edge of the pavement, the right side of plaintiff's car sideswiping the front tires of the grader.

As said, after a verdict and judgment in the defendants' favor on both the petition and the counterclaim, the trial court granted plaintiff a new trial on the ground that the defendant grader driver was guilty of contributory negligence as a matter of law.We do not review this ruling with the oft-repeated statement that the granting of a new trial is discretionary with the trial court.That is so when the issue is one of fact.But the ruling now before us is one of law, and we review it unhindered by any presumption in favor of correctness.Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142;Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674.The question of defendants' freedom from negligence was for the jury, unless reasonable minds could not draw such a conclusion; and we must consider the evidence in the light most favorable to the defendants, in whose favor the jury found.Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498[3, 4];Johnson v. Lee Way Motor Freight, Inc., Mo., 261 S.W.2d 95.

In their brief the defendants stress the evidence showing plaintiff knew of the highway work, that he passed defendants' warning signs, and that he did not maintain a lookout after he saw their grader approaching the highway.They cite three cases in support of their contention that plaintiff was guilty of negligence as a matter of law.That argument is sound but is not relevant here, for we are concerned only with the trial court's ruling that defendants were negligent as a matter of law.

In granting the plaintiff a new trial on that ground, the trial court filed a memorandum, saying:

'1.The evidence showed defendants were negligent as a matter of law in violating their common law and statutory duty to yield the right-of-way when the operator of the grader approached and entered the highway from a private drive from the south.The operator of the grader drove seventy-five or one hundred feet toward the highway after setting his grader blade at a speed of one mile per hour and never looked to the west to see if there were any vehicles approaching on the highway from the west.His failure to look before coming onto the traveled portion of the highway was a violation of both his common law and statutory duty, and constituted negligence as a matter of law.Major v. Davenport[Mo.App.], 306 S.W. (2d) 626;Douglas v. Whitledge[Mo.App.], 302 S.W. (2d) 294, Roux v. Petters [Pettus][Mo.App.], 293 S.W. (2d) 144. The operator had an unobstructed view from 1/2 mile to one mile and at the rate of speed of one or two miles per hour he could have stopped before reaching the point of collision; the operator stated that he did not see the plaintiff's car until the impact.It was error for the court to submit defendant's counterclaim on primary negligence because defendant's claim was barred, on such negligence, by the contributory negligence of the operator of the road grader.'

Of necessity, this finding of negligence of defendantHarold Parsons must be based on a breach of some duty owed by the defendant to the plaintiff.We will examine the parties' contentions as to that duty.

Defendants argue that because they were engaged in work upon the highway, they were under no duty to keep a lookout for plaintiff's approaching automobile.They cite cases holding that an injured workman afoot on the highway was not contributorily negligent in failing to see the approaching automobile that struck him.These cases are not in point, because they deal with the duty of a pedestrian rather than the duty of a motorist.That duty is imposed by Sec. 304.010 RSMo 1959, V.A.M.S., which requires every person operating a motor vehicle on a highway to use the highest degree of care.Other courts have declined to except road machinery from this duty (see60 C.J.S.Motor VehiclesSec. 371, p. 925), and we find no authority to do so.

Most of the argument of each party is pointed to the factual issue of whether defendantHarold Parsons drove the grader onto the paved portion of the highway, or whether the collision occurred just short of that line.Viewing the evidence in a light favorable to defendants, the jury could have believed: that the right-hand wheels of plaintiff's car were moving along the very edge of the pavement, and that the overhang of his car extended somewhat beyond that line; and that the front of the grader's tires reached but did not extend beyond the edge of the pavement.This factual issue would be material only if it affected the duty owed by the defendants to the plaintiff.

The duty of a motorist to use the highest degree of care is not limited to the paved portion of a highway, but extends to the shoulder of the highway.This issue was ruled in Eoff v. Senter, Mo.App., 317 S.W.2d 666[7-8], the court saying:

'* * * We find no evidence that at the time plaintiff was struck defendant was operating the motor vehicle on the privately owned parking lot of the aircraft company.At that time the automobile was either on Banshee Road, a public drive, or on the shoulder, some 15 feet from the traveled portion of the road.* * * From this evidence we conclude that defendant was operating his automobile upon a 'highway' traveled by the public within the meaning of Sec. 304.010, supra, and not upon private property. * * *'

And, in the case of Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331, where the issue was the care required of a bus driver standing on private property just off a public street, the court said:

'* * * It certainly would be a strained construction of the statute, Sec. 8383, R.S.M.o.1939, Mo.R.S.A. Sec. 8383[now Sec. 304.010 RSMo 1959, V.A.M.S.], to say that under such circumstances the...