Grisham v. Freewald

• Decision Date: 20 May 1936
• Citation: 95 S.W.2d 349,230 Mo.App. 1203
• Parties: CARLISLE S. GRISHAM AND W. D. BELL, CO-PARTNERS, COMPOSING THE FIRM OF SOONER DISTRIBUTING COMPANY, APPELLANTS, v. V. W. FREEWALD, RESPONDENT
• Court: Missouri Court of Appeals

95 S.W.2d 349

230 Mo.App. 1203

CARLISLE S. GRISHAM AND W. D. BELL, CO-PARTNERS, COMPOSING THE FIRM OF SOONER DISTRIBUTING COMPANY, APPELLANTS, v. V. W. FREEWALD, RESPONDENT

Court of Appeals of Missouri, Springfield

May 20, 1936

Rehearing denied June 27, 1936.

Appeal from the Circuit Court of Laclede County.--Hon. William E Barton, Judge.

AFFIRMED.

Judgment affirmed.

Robert C. Fields and Mann, Mann & Miller for appellants.

Ruark & Ruark and W. I. Mayfield for respondent.

SMITH J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This is a suit brought by plaintiffs to recover damages in the alleged amount of $ 400 for damage to plaintiff's truck caused by the defendant negligently colliding with said truck with a Ford motor car driven by the defendant.

The plaintiffs have given a reasonably fair statement of the case, and which statement with slight alterations we adopt.

This cause was brought by plaintiffs in the Circuit Court of Laclede County, to the May Term, 1934, of that court, to recover damages to a truck owned by them, growing out of an accident occurring on May 6, 1934, on Highway 66, some seven or eight miles west of Lebanon, Missouri, wherein plaintiffs' truck was run into and damaged by a Ford coupe automobile owned and driven by defendant. Plaintiffs in their petition alleged that defendant was negligent in driving his automobile at high speed; in driving his automobile to the left of the center of the road; in driving his automobile without keeping a proper lookout ahead and that the defendant negligently violated the so-called last chance or humanitarian rule.

Defendant filed an answer consisting, first, of a general denial and second, of a counterclaim seeking damages on account of the damage done to defendant's automobile, on account of injuries to himself and on account of loss of services, society and companionship of his wife, and for medical expense incurred in connection with his own and his wife's injuries. In this counterclaim defendant alleged that plaintiffs were negligent in that they failed to keep a vigilant watch and lookout ahead; that they failed to keep the truck and trailer under control; that the truck and trailer was operated at a high rate of speed, and that such truck was driven upon the left hand side of the highway, and further alleged the violation of the humanitarian or last chance doctrine on the part of plaintiffs' driver.

Plaintiffs sought to recover the sum of four hundred ($ 400) dollars by their petition and defendant's counterclaim is for five thousand ($ 5,000) dollars.

Plaintiffs filed an answer to the counterclaim wherein they alleged that defendant was guilty of negligence which caused or directly contributed to cause and bring about such, if any, injury or damage which he suffered and in which practically the same acts were alleged as contributory negligence on the part of defendant as were alleged by plaintiffs as constituting their cause of action and right to recover against respondent.

The case was tried at the February Term, 1935, of the Laclede County Circuit Court. Plaintiffs' evidence was to the effect that they owned the Ford truck and semi-trailer involved in the accident, which was then driven by one Howard Holly; that his accident occurred at a place some seven or eight miles west of Lebanon, Missouri, on Highway 66, and that the highway is paved to standard width of approximately twenty feet, with concrete, with dirt shoulders on either side; that the accident happened on a short level space at the top of a hill, that is, that there was a level space on the top of this hill, and that in either direction at the ends of this level space the highway slanted down so that both the truck and automobile drove uphill approaching the place of accident until they reached the level space estimated at about 300 to 400 feet in length. The evidence further shows that there was a slight curve in the highway toward the west end of this level space.

Plaintiff's evidence then further tended to show that the truck was running east and defendant's car (which we will call the Ford) was going west. There were no actual eye witnesses to the wreck, except the truck driver, Howard Holly, and defendant, Mr. Freewald, and his wife, Mrs. Freewald. Witness Holly testified that as he came over the top of the rise from the west he was running about thirty miles an hour and saw the Ford car coming at a high rate of speed, that he judged to be about fifty miles an hour; that the Ford was just then coming over the crest of the rise from the other direction and was driving about a foot to the left of the center of the highway. He stated he then pulled as close to the right hand side of the pavement as he could, but that the Ford turned back and got over on its right side of the highway and then again swerved to the left when the truck and Ford were only about thirty feet apart, and ran into the left side of the truck and trailer. This witness testified that as the Ford made the last swerve toward the left he pulled his truck clear off of the pavement and had his right wheels off on the shoulder at the time of impact, and that the left front end of the Ford first hit that part of the truck known as the tractor, or truck proper, about at the back end of the cab and then sideswiped clear on back along the side of the trailer, struck the left rear trailer wheels and then swerved around and came to rest back on the north side of the highway, facing back in a southeasterly direction. The truck, in turn, went clear on over with its right wheels in the ditch to the south of the south shoulder of the highway; the two vehicles coming to rest about eighty or ninety feet apart.

Several witnesses produced by plaintiffs testified to finding tracks at the scene of the accident immediately following the wreck indicating that the wreck occurred on appellant's right and respondent's left hand side of the road and as testified to by the witness, Howard Holly.

Plaintiff's witnesses, Albert Mager and Rowlena Mager, testified that defendant's car was running at a very high rate of speed as it passed them at the bottom of the hill just before the accident occurred and as it went on up over the crest of the rise and out of their sight. These witnesses were those persons who arrived first at the scene of the accident and immediately following the wreck.

Plaintiff then offered evidence by the witness, Harry Hooker, as to the damage to their truck.

Defendant was the first witness for himself. His testimony was to the effect that he was on a trip home to Neosho from Chicago and that he left Lebanon, Missouri, the morning of the accident about six o'clock. He described the place of accident in about the same manner as it had been described in plaintiffs' evidence, except that he contended the curve at the top of the hill was a sharper curve than plaintiffs' evidence showed it to be and contended that the grade down from the place of accident leading west was not so steep an incline as plaintiffs' evidence had showed it to be; that is, that the truck, in approaching the place of accident, had not pulled so sharp a grade as plaintiffs contended. He testified that as he drove west that morning he was running about forty-five miles an hour but slowed down going up the grade approaching the place of accident, so that as he came in sight of plaintiffs' truck he was running about forty, forty-one or forty-two miles an hour. He stated he could not, and he did not give any estimate as to the speed the truck was running, would not say that it was running as fast or faster than he was.

He testified that the accident occurred about 200 feet west of the crest of the rise that he drove over, that is, said "I had this accident a couple of hundred feet after I went over the crest of this rise." And further stated "Before I got clear to the crest I could see on on over the top and see the top of this truck coming."

He then testified that when he first saw this truck it had already gotten over the center line, that is, to the north of the center line and stated "When I first got up to where I could see the whole truck I then saw it was over on my side of the road." He testified that the truck was something over 200 feet from him when he saw that it was clear over on his side of the road, and that it was still coming more on his side, cutting across the curve, and that it then ran straight down the road entirely on his side of the road. He testified that then, while they were 200 feet or more apart, he "commenced to get off on the shoulder." He testified that the truck driver did attempt to turn the truck back to its side of the road, but that the truck and trailer were so long that in angling back across the road it blocked the entire width of the pavement and he continued on and ran into the left rear side of the trailer, hitting it just at the left rear wheels. He testified that his brakes were in "first class shape;" in such shape that they ought to slide all four wheels, and further testified that, running at the speed he was going, he could have stopped in 100 feet.

There are other parts of the evidence which we shall notice under the consideration of different points in the case.

The case was tried to a jury and resulted in a verdict against the plaintiffs on their claim for damages, and a verdict for defendant for $ 1500 on his counterclaim.

Motion for new trial was overruled, and plaintiffs appealed to this court.

The first complaint is that the trial court erred in refusing the plaintiffs' requested peremptory instruction to the effect that the defendant was not entitled to recover upon his counterclaim.

There is competent evidence in the case that the plaintiffs'...