Gosney v. May Lumber & Coal Co.

• Citation: 179 S.W.2d 51,352 Mo. 693
• Decision Date: 06 March 1944
• Docket Number: 38784
• Parties: Roy Gosney v. May Lumber & Coal Company, a Corporation, and William H. May, doing business as May Coal & Lumber Company, Appellants
• Court: United States State Supreme Court of Missouri

179 S.W.2d 51

352 Mo. 693

Roy Gosney v. May Lumber & Coal Company, a Corporation, and William H. May, doing business as May Coal & Lumber Company, Appellants

No. 38784

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed and remanded (with directions).

Richard H. Beeson, David P. Dabbs and Spurgeon L Smithson for appellants.

(1) As plaintiff was not oblivious of the approach of the truck the danger zone extended beyond the path of the truck only the distance within which plaintiff would not be able by his own efforts to stop short of the path of the truck; no case was made by plaintiff under the humanitarian doctrine. Lotta v. Kansas City Public Serv. Co., 342 Mo. 743, 117 S.W.2d 296. (2) Plaintiff's testimony in rebuttal on speed and stopping distances being in unexplained and unexcused contradiction of his previous testimony should be disregarded. Steele v. Kansas City So. Ry., 265 Mo. 97, 175 S.W. 177; Stevens v. Thompson, 175 S.W.2d 166. (3) Plaintiff was guilty of contributory negligence as a matter of law in starting up from a position of safety and entering the path of the closely and rapidly approaching truck. Parkville Milling Co. v. Massman, 83 S.W.2d 128, syllabus par. 9.

Hook & Thomas, Phillip J. Close, Harry L. Thomas and Inghram D. Hook for respondent.

There was liability under the humanitarian rule.

OPINION

Clark, P.J.

Respondent (plaintiff) sued appellants (defendants) for $ 35,000.00 for injuries alleged to have been received in a collision between an automobile driven by respondent and a truck driven by an employee of appellants. The verdict and judgment were for appellants. The trial court granted a new trial, stating as the reason therefor that he had committed error in giving appellants' instruction "F". From the order granting a new trial an appeal has been taken to this court.

Appellants offered demurrers to the evidence at the close of plaintiff's case, and at the close of the whole case. The demurrers were overruled and the case submitted to the jury solely upon negligence under the humanitarian doctrine for failure of the driver of appellants' truck to stop, slacken or turn the truck aside.

Because we believe that respondent failed to make a submissible case, we deem it unnecessary to pass upon the correctness of appellants' instruction "F" or upon other points raised in the briefs.

The collision occurred at the intersection of Crysler Road and Thirty-ninth Street in Jackson County. Crysler Road runs north and south, has an eighteen foot concrete slab and with the usable portion of the shoulders is about thirty feet wide. Plaintiff was driving his sedan west on Thirty-ninth Street across Crysler Road. Oscar Steen, an employee of one of the defendants, was driving the truck south along the west half of the concrete slab on Crysler when the front of the truck struck the right rear door and wheel of the sedan four or five feet from its rear bumper.

Gosney, the plaintiff-respondent, testified that there was a stop sign on Thirty-ninth a little east of Crysler. He brought his sedan to a complete stop with its front end about one foot from the east edge of the concrete slab on Crysler. He then saw appellants' truck, about seventy or eighty feet away, approaching from the north on Crysler at a speed of thirty to thirty-five miles per hour. (The truck was loaded with coal and, with contents, weighed nearly 12,000 pounds.) Respondent started his sedan in low gear and drove on the slab. When the front end of the sedan got on the east edge of the slab the truck was fifty or sixty feet away and when the front end of the sedan reached the middle of the east half of the slab the truck was distant forty feet or less, about thirty-five feet. The truck was traveling on the west side of the slab and did not veer to either side or reduce its speed. When the collision occurred the front end of the sedan had crossed the west side of the slab and the rear end was a little past the center. (The sedan was about 16 feet long.) He testified to the speed of his sedan while crossing Crysler Road and the distance in which it could be stopped at various speeds. He said he started in low gear at about two or three miles per hour and attained a speed of fifteen or twenty miles before the collision; that he could stop in ten or twelve feet at fifteen miles per hour, and in one or two feet at six miles. Respondent again took the stand in rebuttal and said he was going about five or six miles per hour when he moved out on the highway and could stop in eight or ten feet.

Elmer Johnson, a motor mechanic, testifying for respondent, said that under the conditions existing at the place of the collision the truck could be stopped in fifty or sixty feet. He said he knew nothing about "reaction time", that is, the time necessary for the driver of the truck to react to the danger and apply the brakes, but said the driver should be on the alert when approaching a well traveled crossroad.

Curtis Moss said he saw the truck about one hundred feet north of the intersection and estimated its speed at twenty miles per hour or a little faster.

Respondent introduced the depositions of William H May, Jr., son of one of the appellants, and of Oscar Steen, driver of the truck. In his deposition May said he visited the scene shortly after the collision and discovered skid marks on Crysler, commencing from fifty to fifty-eight feet north of, and continuing up to, the center of Thirty-ninth Street; that these marks veered slightly to the west, the east mark being about six inches west of the center of the slab at the start and the west mark being right at the west edge of the slab where they stopped. He saw no marks running east and west on Thirty-ninth Street. He said under the prevailing conditions, counting reaction time, the truck could be stopped in sixty-five or seventy feet going at thirty-five miles per hour and in fifty-five or sixty feet at thirty miles per hour. Steen's testimony in his deposition is at variance with other testimony offered by respondent. Steen said he was driving the truck at thirty or thirty-five miles per hour; that respondent approached on Thirty-ninth Street at about forty miles per hour and drove into the intersection in front of the truck without ever stopping or reducing speed; that when he first saw the sedan was not going to stop the truck was about thirty feet north of the intersection (according to respondent's brief this would be about forty feet from the point of impact) and the sedan was fifty to seventy-five feet...