Filkins v. Snavely

• Decision Date: 13 June 1949
• Citation: 221 S.W.2d 736
• Parties: JULIUS FILKINS, Guardian and Curator of EUGENE MOSES, a Minor, Appellant, v. CLARENCE LEE SNAVELY and SUPERIOR FORWARDING COMPANY, Respondents.
• Court: Missouri Supreme Court

221 S.W.2d 736

JULIUS FILKINS, Guardian and Curator of EUGENE MOSES, a Minor, Appellant, v. CLARENCE LEE SNAVELY and SUPERIOR FORWARDING COMPANY, Respondents.

Supreme Court of Missouri.

Division One, June 13, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, July 11, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B. Williams, Judge.

AFFIRMED AND REMANDED.

Dearing & Matthes and M.C. Matthes for appellant.

(1) The evidence must be viewed in the light most favorable to plaintiff, who is entitled to every inference of fact which may reasonably be drawn therefrom, and cannot be construed so as to give defendants the benefit of all favorable evidence tending to establish a lack of liability on part of the defendants as was done by trial court. Gray v. Columbia Terminals Co., 52 S.W. (2d) 809; Gilliland v. Bondurant, 59 S.W. (2d) 679; Cento v. Security Bldg. Co., 99 S.W. (2d) 1. (2) The transcript of record establishes that from evidence offered at trial below the jury was authorized to find that at the time of the collision the defendants' tractor and trailer unit was east of the centerline of Highway 61-67 and was not, while traveling in a southerly direction, being driven as close as practicable to right-hand side of highway. Ruby v. Clark, 208 S.W. (2d) 251; Hasenjaeger v. M.K. & T. Ry. Co., 53 S.W. (2d) 1083; Sparks v. Auslander, 182 S.W. (2d) 167. (3) The failure of the defendants to operate their equipment as close as practicable to right-hand side of highway 61-67 and in allowing their equipment to be east of the centerline of the highway constituted negligence per se. Sec. 8385, R.S. 1939; Benoist v. Driveaway Co. of Mo., 122 S.W. (2d) 86; Myers v. Nissenbaum, 6 S.W. (2d) 993. (4) The negligence of defendants arising from manner in which the equipment was operated, was the proximate cause of death of plaintiff's mother, and whether such negligence was the proximate cause of collision was a question for the jury. Young v. Wheelock, 64 S.W. (2d) 950; Mrazek v. Terminal Railroad Assn., 111 S.W. (2d) 26. (5) The defendant Superior Forwarding Company was, on the occasion in question, operating as a common carrier and as between the company and the public defendant Snavely was the agent of such company, which is liable for the tortious acts of its said agent. Cotton v. Ship-By-Truck Co., 85 S.W. (2d) 80. (6) As a common carrier for hire, the defendant Superior Forwarding Company was estopped from raising the defense of independent contractor, in an effort to escape its liability for the tortious act of its servant, and therefore the court did not err in refusing to give to jury Instruction C offered by defendants. Cotton v. Ship-By-Truck Co., 85 S.W. (2d) 80; Whitmore v. American Ry. Exp. Co., 269 S.W. 654. (7) The trial court did not err in refusing to give and read to the jury at the instance and request of defendants Instructions A and B because: Such instructions submitted a theory which would have permitted the jury to have exonerated the defendants from negligence when there was no evidence tending to establish or from which jury could have legitimately inferred that the defendants' motor truck swerved to east side of said highway in an emergency, and in the absence of such evidence the instructions were properly refused. The instructions submitted an issue for the jury's consideration which was contrary to and at variance with the testimony given by defendant Snavely. Elkin v. St. Louis Pub. Serv. Co., 74 S.W. (2d) 600; Gresham v. Reed, 171 S.W. (2d) 70; Mollman v. St. Louis Pub. Serv. Co., 192 S.W. (2d) 618.

Walther, Hecker, Walther & Barnard and Harold F. Hecker for respondents.

(1) The trial court properly sustained defendants' motion for new trial on the ground that it was error to overrule defendants' motions for a directed verdict. Schoen v. Plaza Express Co., 206 S.W. (2d) l.c. 536; Borrini v. Pevely Dairy Co., 183 S.W. (2d) 839; Hall v. Phillips Pet. Co., 214 S.W. (2d) 438. (2) Where the evidence justifies two inferences to be drawn, one of which would justify a verdict for plaintiff and the other would not, plaintiff's must fail. Pietraschke v. Pollnow, 147 S.W. (2d) 167; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W. (2d) 99; Luettecke v. St. Louis. 140 S.W. (2d) 45. (3) To draw a permissible inference the court should not base an inference upon an inference. Pape v. Aetna Cas. Co., 150 S.W. (2d) l.c. 573; Hamilton v. K.C.R. Co., 250 Mo. l.c. 723, 157 S.W. l.c. 624. (4) Plaintiff failed to make a submissible case of negligence on the assignment that defendants carelessly and negligently failed to drive their tractor and trailer as close to the right-hand side of the highway as was practicable, and it was error for the court to give plaintiff's requested Instruction 1. The trial court properly sustained defendants' motion for a new trial for error in giving Instruction I. Blashfields Enc. of Automobile Law, sec. 920; Borrini v. Pevely Dairy, 183 S.W. (2d) 839; Lewis v. Zagata, 166 S.W. (2d) 595; Stack v. General Baking Co., 223 S.W. 89; Lavigne v. Portland Traction, 170 Pac. (2d) 709. (5) If Instruction I was proper, then defendants refused Instructions A or B should have been given by the court and the trial court properly held that it was error to refuse defendants' requested Instruction B and in granting defendants a new trial on said ground. Garvey v. Ladd, 266 S.W. 727; Mayne v. May Stern Co., 21 S.W. (2d) 211; Hicks v. Morgan, 259 S.W. 265; Clark v. Woop, 159 N.Y. App. Div. 437.

HYDE, J.

Action for wrongful death; verdict for plaintiff for $10,000.00. The Court granted a new trial upon the grounds that the Court should have directed a verdict for defendants; that the Court erred in giving Instructions 1, 2 and 6 offered by plaintiff; that the Court erred in refusing Instructions A and B offered by defendants; and that the Court erred in refusing to instruct the jury on the law of emergency. Plaintiff has appealed from this order.

[1] On the issue of directed verdict, the question is whether plaintiff made a jury case of negligence of defendant's driver in failing to keep as close as practicable to his right-hand side of the highway. We think plaintiff made a submissible case. The following facts appear from the evidence considered most favorably to plaintiff. The mother of the minor plaintiff was killed in a collision between a Plymouth coupe, in which she was riding with Thomas L. Hayes (also killed in the collision) and a tractor-trailer transport driven by defendant Snavely, who was the only surviving eyewitness. The collision occurred on a curve about four miles south of Festus on Highway 61-67 about 8:40 P.M. on May 15, 1947. The general direction of the highway was north and south. The coupe was travelling north and the transport was going south. The curve was to the east (to the left) for southbound traffic and it was possible for southbound drivers to see a quarter of a mile beyond it. Northbound drivers could see through the curve about 300 yards. The slope of the highway was a little downgrade to the north. The pavement was eighteen feet wide and was dry at the time of the collision but it started raining soon afterward.

Both vehicles came to rest on the east side of the highway. State Patrolmen who came soon after the collision found broken glass, dirt, debris and oil spots on the east half of the highway. There was a freshly gouged out place about four inches long, two feet ten inches east of the center line of the highway and there were scratches leading back from it toward the coupe. This mark dug deeper into the mud and gravel of the east shoulder and led to the front of the coupe. Its left front wheel was broken off and these marks appeared to have been made by its axle. Nothing was found on the west half of the pavement. The coupe was against the fence, which paralleled the highway on the east side. Its left rear wheel (which was its nearest part to the highway) was 15 feet 2 inches from the east edge of the pavement and it was 47 feet 4 inches from the gouged place in the pavement. The transport (which was about 40 feet long and with its load weighed about 45,000 lbs.) extended about seven feet on to the east half of the pavement. The rest of the transport was off the pavement at an angle of about 35 degrees to the southeast, with its tractor on top of the coupe. Photographs in evidence show the character and extent of damage to each vehicle (which was also described in detail) and indicate that it was the left front parts of each vehicle that came in contact.

We think these physical facts and surrounding circumstances with the inferences that might reasonably be drawn from them are sufficient to make a jury case on the negligence submitted, at least with the statements of the driver in his testimony hereinafter referred to, that he did not swerve to the left before the collision. [See Ruby v. Clark, 357 Mo. 318, 208 S.W. (2d) 251; Payne v. Reed, 332 Mo. 343, 59 S.W. (2d) 43.] Defendants rely on Schoen v. Plaza Express Co., (Mo. Sup.) 206 S.W. (2d) 536. However, the evidence in that case was much different. The vehicles involved were found on opposite sides of the highway and tracks made by the transport appeared...