Hall v. Rager, 48856

• Decision Date: 14 May 1962
• Docket Number: No. 48856,No. 2,48856,2
• Citation: 357 S.W.2d 83
• Parties: Gary Eugene HALL, a Minor, by his father and next friend, Dorwin Hall, Respondent, v. Verne F. RAGER, Appellant
• Court: Missouri Supreme Court

Page 83

357 S.W.2d 83

Gary Eugene HALL, a Minor, by his father and next friend, Dorwin Hall, Respondent, v. Verne F. RAGER, Appellant.

No. 48856.

Supreme Court of Missouri, Division No. 2.

May 14, 1962.

Robert L. Jackson, Kansas City, for appellant.

James E. Lockwood, Brenner, Wimmell, Ewing & Lockwood, Kansas City, Walter B. Patterson, Fort Scott, Kan., for respondent.

PER CURIAM.

In this action plaintiff sought to recover damages in the sum of $50,000 for personal injuries sustained in an occurrence involving the car in which he was riding and a truck operated by an employee of defendant. A trial resulted in a verdict for defendant. Thereafter, the trial court entered an order granting plaintiff a new trial upon the grounds that the court had erred in giving Instructions 7 and 9 at the request of defendant. Defendant has appealed from that order.

While defendant here contends that the said instructions were not prejudicially erroneous, his first and perhaps primary contention is that any error in the instructions would be immaterial because plaintiff failed to make a submissible case, and hence the trial court should have sustained his motion for a directed verdict filed at the close of all the evidence. In determining that contention we will view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences flowing therefrom, and disregard defendant's evidence except as it may aid plaintiff. Erbes v. Union Electric Co., Mo.Sup., 353 S.W.2d 659.

The casualty in question occurred shortly after noon on July 18, 1957, at the intersection of two county roads located approximately six miles northeast of Fort Scott, Kansas. Plaintiff, then 5 years of age, was riding in an automobile being driven by his grandmother, Mrs. Alta Jacquinot. The intersection involved was located a little more than a mile west of the Jacquinot farm home. Both roads were constructed of chat on rock. The east-west road (known as Richards Road) was 25 or 30 feet wide while the north-south road was not that wide. There were no stop signs at the intersection. Mrs. Jacquinot was driving her 1949 Chevrolet westwardly on Richards Road. John Bower was driving defendant's stock truck northwardly on the intersecting county road. The car and truck reached the intersection at about the same time, but, as will hereinafter more fully appear, there was no actual contact between the two vehicles.

Mrs. Jacquinot testified that when her car was one quarter mile east of the intersection she saw defendant's truck about a half mile to the south thereof; that from that point on her view of cars approaching from the south was obscured by corn growing in a field at the southeast corner of the intersection; that her car was going 'around' 25 m. p. h. and when she arrived at the east edge of the intersection she saw the truck about 40 to 50 feet to the south traveling at a speed of 50 m. p. h.; that when she saw the truck 'I didn't think I had time to go across, * * * I didn't have time to stop. If I had stopped, I would have been right in front of it. * * * I swerved to the right, and I kind of lost control of the car and I went back kind of to the west and hit the ditch on the northwest corner of the intersection and ran into a big bank there. * * * The truck went behind me as I hit the bank, going toward the north. He didn't slow down or he didn't stop. He went straight on to the north through the intersection just as I hit the bank.' This witness further testified that as a result of the impact she received certain injuries and that plaintiff's head hit the dashboard and he was rendered unconscious; that the truck driver returned to the intersection and took them to the home of a neighbor who drove them to the hospital.

Defendant presented the testimony of the truck driver, John Bower, who related a much different version of the occurrence. He stated that his truck arrived at the intersection first; that as he started to cross the intersection he looked to the east and saw Mrs. Jacquinot's car from 125 to 150 feet away and 'it looked like she put the brakes on and the front end went down and started to slide sideways a little'; that he went on across and her car passed back of the truck and he could see in the rear-vision mirror that it was in the ditch. On cross-examination Mr. Bower testified that as he approached the intersection his view to the east was obscured by tall brush; that his truck was going from 40 to 45 m. p. h. and he did not apply his brakes, reduce the speed of the truck, swerve or sound his horn.

Plaintiff's main verdict-directing instruction conjunctively submitted two assignments of negligence, i. e., (1) that the Jacquinot car entered the intersection ahead of or at the same time as defendant's truck and that defendant's driver failed to yield the right of way, and (2) that the truck was driven into said intersection at a speed of 45 to 50 m. p. h. and that under the circumstances detailed in said instruction such speed was negligent.

In considering the first assignment submitted it should be noted that Sec. 8-550, General Statutes of Kansas 1949, provides as follows: '(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. (c) The foregoing rules are modified at through highways and otherwise as hereinafter stated in this article.'

Defendant contends that plaintiff failed to make a submissible case of failure to yield the right of way because there is no substantial evidence to the effect that defendant's truck interfered with the right of way of the Jacquinot Chevrolet. His brief recites that 'there never was a collision between the two vehicles involved in this case, and, furthermore, there was no evidence that if both cars had proceeded in the same manner as testified to by Mrs. Jacquinot, that there ever would have been a collision between said vehicles. In fact, the evidence strongly indicates exactly to the contrary.' He cites cases such as Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203, 208, which state the rule that 'mere violations of traffic laws are not themselves sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the violation contributed to the collision and was a proximate cause of the injury sustained.'

At the outset of our consideration of this question it should be made clear that the 'mere absence of contact does not prevent an act of negligence from being the proximate cause of an injury. This general principle is applicable where a vehicle is forced off the highway, and is in accordance with the rule that he who, by his negligence, creates a dangerous situation is liable to one who, acting as a reasonably prudent person, is injured while attempting to avoid the danger so created. * * * To be the producing or proximate cause of an accident, it is not necessary that there be actual contact between the respective automobiles; the test of whether the negligent acts of two or more persons concurred in contributing to an accident being whether the accident could have happened without the co-operation of such acts.' 4 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Sec. 2538, pp. 35, 36, and Sec. 2644, p. 146. See also Tilden v. Ash, 145 Kan. 909, 67 P.2d 614, and Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557.

Defendant's contention in regard to nonsubmissibility as to excessive speed is substantially the same as his contention in regard to failure to yield the right of way. He says the speed of defendant's truck was not shown to be a proximate cause of the accident. He states in his brief that 'regardless of what defendant's speed was, there was no collision between the two vehicles. Furthermore, there was no substantial evidence that there was ever any danger of a collision * * *. Obviously, whatever defendant's speed was, the proximate cause of the accident here...