Hall v. Phillips Petroleum Co.
| Decision Date | 13 September 1948 |
| Docket Number | 40098 |
| Parties | Donald Raymond Hall, A Minor, By Marie Hall, Guardian and Curatrix, Respondent, v. Phillips Petroleum Company, a Corporation, and Lank Shores, Appellants |
| Court | Missouri Supreme Court |
Motion for Rehearing or to Transfer to Banc, Overruled November 8 1948.
Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.
Reversed.
Henry Depping, Hale Houts, and Hogsett, Trippe, Depping & Houts for appellants.
(1) Defendants were entitled to a directed verdict if the evidence did not make a case for the jury on the humanitarian doctrine submitted by plaintiff's instruction 1. Guthrie v. St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Sec. 8385 (b) and (c), R.S. 1939. (2) There was no evidence that Shores saw or should have seen deceased in imminent peril in time to have averted the collision by swerving or sounding a warning. Stanton v. Jones, 332 Mo. 631 59 S.W.2d 648; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; Baker v. Wood, 142 S.W.2d 83; Lotta v. K.C. Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717; Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638; Gosney v. May Lumber & Coal Co., 352 Mo. 693, 179 S.W.2d 51; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Rafferty v. Levy, 153 S.W.2d 765; Borrini v. Pevely Dairy Co., 183 S.W.2d 839; Hutchison v. Thompson, 175 S.W.2d 903. (3) Shores was driving east at the south edge of the slab and could have owed no duty to turn off of the slab. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9; Frankel v. Hudson, 271 Mo. 495, 196 S.W. 1121; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. (4) There was no evidence that deceased was oblivious of the approach of the Phillips truck and no duty to warn could have arisen. Pentecost v. St. Louis Merchants' B. Term. R. Co., 334 Mo. 572, 66 S.W.2d 533; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Baker v. Wood, 142 S.W.2d 83; Secs. 112, 113, Civil Code, Laws, 1943, p. 387.
Fred F. Wesner, Harry C. Clark, and W. Raleigh Gough for respondent.
(1) Upon demurrer to the evidence, plaintiff is entitled to a most favorable consideration of all the evidence in the case, together with all reasonable inferences that may be drawn therefrom, in order to support the verdict. Steger v. Mehan, 63 S.W.2d 109; Gilliland v. Bondurant, 59 S.W.2d 679; Evans v. Farmers Elev. Co., 347 Mo. 326, 147 S.W.2d 593; State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193. (2) The conflicting statements in Shores's deposition were for the jury's consideration, along with his testimony at the trial. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. (3) The statements made by Shores to Patrolman Corl were in the case, as substantive evidence, to be weighed and considered by the jury. 31 C.J.S., pp. 1029, 1059, secs. 277, 294; 22 C.J. 443, sec. 533; Pulitzer v. Chapman, 85 S.W.2d 411. (4) There was evidence from which the jury could find that the deceased came into a position of imminent peril and that Shores saw or should have seen that he was in such position of peril. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Branson v. Abernathy Furn. Co., 344 Mo. 1171, 130 S.W.2d 563; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; White v. Teague, 182 S.W.2d 288; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648. (5) There was a submissible case on failure to sound a warning. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368. (6) There was a submissible case on failure to swerve and turn to the right. State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Griffith v. Berlin, 130 Conn. 84, 32 A.2d 56; LaRue v. Borrman, 260 A.D. 337, 22 N.Y.S. (2d) 209, affirmed, 285 N.Y. 550, 33 N.E.2d 239; Poyer v. State, 240 Wis. 337, 3 N.W.2d 369; Evans v. Farmers Elev. Co., 347 Mo. 326, 147 S.W.2d 593; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368.
Action for the alleged wrongful death of plaintiff's father, Raymond E. Hall, resulting from a collision on a public highway between tractor semi-trailer trucks, one of which was being operated by said Hall, for his employer, Schien, and the other (a gasoline transport) by defendant Lank Shores, for his employer, defendant Phillips Petroleum Company. Judgment for plaintiff for $ 10,000.00, and defendants appeal.
The submission was under the humanitarian doctrine, hypothesizing negligence on the part of defendants in failing to divert the course of the Phillips gasoline transport truck to the right, or to sound a warning of its approach. The only contested issues at the trial were those of negligence, and the amount of recovery. The questions on this appeal have also been sharply narrowed, the principal one being whether plaintiff made a submissible case.
The case is unusual in that plaintiff relies upon the testimony and extrajudicial statements of the defendant Shores, the sole surviving eyewitness, Hall having perished in the collision. Of this peculiar situation plaintiff's brief says: "Plaintiff was compelled to rely largely upon the testimony of his adversary and could only dispute that testimony by a showing of the physical facts apparent after the collision and by showing conflicting statements by the defendant Shores." Plaintiff took Shores' deposition, portions of which, as well as a statement made by him at the scene of the accident to Officer Corl of the Highway Patrol, were offered and received as admissions against interest. He was present at the trial, and testified for himself and his co-defendant. Plaintiff stresses those portions of Shores' extrajudicial statement, deposition and testimony at the trial which are favorable to his (plaintiff's) theory of the case, but asserts that other portions (which are utterly destructive of any theory of humanitarian negligence on the part of defendants) may be disregarded for reasons hereinafter to be noted.
On the issue of the submissibility of plaintiff's case, defendants' specific contentions are: (1) That there was no substantial evidence that Shores saw or should have seen deceased in imminent peril in time thereafter to have averted the collision by swerving or sounding a warning; (2) That, in any event, Shores was under no duty to turn off the slab and onto the right shoulder, all of the evidence being to the effect that Shores was driving at the extreme right edge of the slab when the collision took place; and (3) That there was no duty to warn because there was no evidence that deceased was oblivious of the approach of the Phillips truck. The first of these contentions may reasonably be said to turn on whether Shores' statement made at the scene of the accident and his deposition, when contrasted with his testimony at the trial, demonstrate such inconsistency and self-contradiction that, the physical facts considered, the jury might infer that the Schien truck did not pull right to its own side of the center line, nor, when about 35 or 40 feet away, pull again to the left toward and thence into the Phillips outfit when it was too late to do anything to avoid the collision, all as testified to by Shores at the trial. The determination of the first contention may make it unnecessary to develop the others, and the statement of facts will be limited accordingly.
The casualty occurred about 7 a.m., on March 28, 1944, on U.S. Highway 50 approximately a mile east of Lees Summit in Jackson County, and adjacent to the Muckey farm. The highway runs east and west. It it concrete, 18 feet wide, divided by a center line marking the two traffic lanes, each lane being 108 inches in width. On the south side of the concrete there is, first, an abutting 4-foot gravel shoulder sealed with asphalt; then a 2-foot earth shoulder, plus 3 additional feet to the ditch. The same situation exists on the north side. The weather was dry, and visibility good. Shores was driving east. His gasoline transport outfit consisted of a tractor (202 inches in length) and semi-trailer tank (24 feet in length), the over-all length of the coupled unit (because of the overlap of the tank on the tractor) being about 33 feet, 2 inches. The weight of his tractor was 8690 pounds; that of the trailer (empty) 8070 pounds; load at time of accident, 21,061 pounds; aggregate weight, 37,821 pounds. Hall was driving in the opposite direction, west. He was operating a tractor semi-trailer truck (van) for his employer, Schien Truck Lines. The weight of his load of freight was about 18,000 pounds. The length of his outfit was not shown, but from photographs it appears to have been about the same as the Phillips tractor and trailer.
The tractors were similar. Each had dual (rear) drive wheels, and single front wheels. The semi-trailers had, of course, no front wheels, but both were equipped with dual rear wheels. The outside edges of each set of wheels (both front and rear, tractors and trailers alike) were 93 inches apart, this figure representing the maximum width of each tractor. The semi-trailers were 94 inches wide, or one-half inch wider on each side than the wheels.
It is conceded that the vehicles collided south of the center line of the highway, i.e., in the eastbound traffic lane which was the...
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