Ewen v. Spence

• Decision Date: 19 May 1966
• Docket Number: No. 8470,8470
• Citation: 405 S.W.2d 521
• Parties: Edgar Russell EWEN, Plaintiff-Respondent, v. Edward Gibson SPENCE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 521

405 S.W.2d 521

Edgar Russell EWEN, Plaintiff-Respondent, v. Edward Gibson SPENCE, Defendant-Appellant.

No. 8470.

Springfield Court of Appeals, Missouri.

May 19, 1966.

Rehearing Denied June 11, 1966.

Application to Transfer Denied Sept. 12, 1966.

Graves & Graves, Neosho, for defendant-appellant.

Douglas & Douglas, Herbert Douglas, Neosho, for plaintiff-respondent.

RUARK, Judge.

Defendant Spence has appealed from a jury-based judgment in amount of $4,262.00 for property damage, medical expense, and loss of wages. The occasion: Defendant's Ford station wagon collided with plaintiff's tractor at the approach entrance (commonly known as Lyon Gate) to the former Fort Crowder reservation from Highway 71 south of Neosho. At this place Highway 71 is a divided, concrete pavement running north and south. The immediate and surrounding area is approximately level and open.

The east northbound lane of 71 is twenty-seven feet in width. There is a paved cross-over from the west southbound lane, with a 'yield right-of-way' sign warning drivers approaching the northbound lane on the cross-over from the west. Immediately east of the northbound lane is a wide, level, spread-paved entrance area. The exhibits indicate at least four separate lanes, at least two of which are divided and curve outward from the center pavement. The actual road (farther on east) into the reservation is a dual lane. While the roadway and entrance road area are level at this place, south of Lyon Gate on 71 there is a small but fairly abrupt rise, or what the plaintiff terms a hill. According to plaintiff's testimony, the 'top' or crest of this hill or rise is approximately one-half mile south. There are no obstructions to vision between this crest of hill and the cross-over.

On this forenoon defendant Spence was driving northbound from the south on the east lane of 71 in a Ford station wagon. His young daughter was asleep in the front seat beside him.

Plaintiff Ewen had been going south on the west lane of 71 and had turned east and was, or had been, crossing the east or northbound lane of 71. He was driving what appears to have been a comparatively small tractor and pulling behind it a combine which he said was attached flush to the rear of the tractor. He gave the length of the combine as fourteen feet. We do not find the length of the tractor stated, but he said the over-all length of the tractor-combine assembly was approximately twenty feet. The only other plaintiff's witness stated the length of the combine to be approximately twelve feet. We must conclude the tractor was six to eight feet in length. Defendant's northbound station wagon collided with the right rear wheel of the tractor at a point on the entrance approach into Lyon Gate where the rear of the tractor was eight feet east of the east edge of the northbound lane of 71.

The plaintiff submitted on negligence under the humanitarian rule. Appellant's sole contention is that the physical facts show that the collision could not have happened as plaintiff said it did. Plaintiff's case is this: He approached the cross-over from the north with the intention of entering or passing through the former Crowder reservation and on beyond, where he intended to combine some wheat on his father's farm. He swung his assembly to the left to head east on the cross-over. As he made this turn, he says he looked to the south and saw a car, presumably the defendant's, at the crest or top of the hill which was approximately one-half mile away. After he made his turn to the east, he traveled east a distance (he testified) of one hundred feet until he reached the northbound lane. He says he was driving his tractor at a speed of the miles per hour. At that point (the northbound) lane) he looked to the south again, and the approaching car was then about halfway down the hill and one-fourth mile south of the cross-over. Not stopping, he continued on east with his tractor-combine assembly across, or almost across, the northbound lane of 71, when his attention was attracted by the scream of tires, 'and I looked up' and saw the approaching Ford. When the Ford struck the rear wheel of the tractor, it was in the entrance approach to the reservation, and the rear was eight feet east of the pavement on 71. Approximately seven feet of his combine still remained extended on the highway. Plaintiff offered in evidence as a part of his case the defendant's answer to an interrogatory, which plaintiff had addressed to him, in which defendant had stated that prior to the collision and at a point five hundred feet south of the place of impact, he had been driving at a speed of sixty-five to seventy miles per hour.

Defendant also testified that he was driving sixty-five to seventy miles per hour, and that is the only speed of defendant's car in evidence. Defendant also stated that when he was from fifty to seventy-five yards south of the entrance approach, he saw the tractor pulling the combine drive out ahead of him and enter upon the northbound lane. He first grabbed his sleeping daughter; then he applied his brakes and held to the right, hoping the tractor would stop. Plaintiff's witness, a highway patrolman who arrived before things had been moved, measured skidmarks to the south and leading to the place of impact, following the course defendant had followed. Marks left by right wheels extended a total of forty-one feet on the pavement and sixty-five feet on the grass, or a total of one hundred and six feet. The left tire marks extended forth feet on the pavement and thirty feet on the grass, or a total of seventy feet.

As nearly as we are able to calculate, the distance plaintiff traveled from the time he looked to the right (when his tractor was at the west edge of the northbound lane and entering upon it) until he reached the point of impact (where the rear of his tractor was not to exceed eight feet east of the edge of the pavement), was approximately forty-three feet. This distance represents the width of the northbound lane (twenty-seven feet), plus the distance from its east edge to the rear of the tractor (eight feet), plus the length of the tractor (not to exceed eight feet). We add this eight feet because the measurement commences from the front of the tractor at the west edge of the northbound lane and ends at the rear of the tractor, the place of impact. At the given speed of his tractor, ten miles per hour, he was traveling approximately 14.7 feet per second and would have covered the distance of forty-three feet in approximately three seconds. In order for the defendant to travel from halfway down the hill, one-quarter mile away, to the point of impact in three seconds, his Ford would have to have been proceeding at the rate of about, less than, three hundred miles per hour, and this does not take into account the effect of braking for at least one hundred and six feet.

Calculated another way: If we assume defendant was going seventy miles per hour (as being more favorable to plaintiff than the only other given speed because he would have reached the point of impact sooner), the Ford would have been traveling at a speed of approximately one hundred three feet per second, and the distance traveled (one-fourth mile) would have required him about 12.8 seconds to reach the place of impact (and this does not make any allowance for reaction time or braking distance); and, in that time the tractor, proceeding at approximately 14.7 feet per second would have traveled one...