Hampton v. Raines
| Decision Date | 03 March 1960 |
| Docket Number | No. 7841,7841 |
| Citation | 334 S.W.2d 372 |
| Parties | Ellis J. HAMPTON and Arkansas-Best Freight System, Inc., an Arkansas corporation, Plaintiffs-Appellants, v. Charles E. RAINES and Melvin J. Ellis, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
George M. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, Harper, Harper & Young, Fort Smith, Ark., for plaintiffs-appellants.
Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for defendants-respondents.
As an after-product of a head-on collision between two tractor-trailer outfits, we are presented with a question of humanitarian negligence on the theory of 'failure to cease blinding.'
The collision occurred at approximately 4:30 in the morning in a fairly heavy fog. It happened in the east (northbound) lane of Highway 71 just south of Jasper, Missouri. The road at that point is two-lane asphalt, approximately 24 feet wide. A few hundred feet to the south of the scene of collision there is a fairly abrupt double curve. From there on north, at the scene of the collision and a considerable distance beyond, the road runs straight and level.
We can hardly give a complete picture of the occurrence without relating the substance of what the parties, who were the only witnesses to the actual collision, said. Plaintiff Hampton, who came from the south, was driving a tractor pulling a box trailer heavily loaded with paper. He says he came around the curve prior to the collision at about 30-35 mph and that he had been running, and continued to run, with his lights on 'low beam' and with his fog lights (mounted under the front bumper) turned on. His tractor-trailer carried small overhead clearance lights. After he rounded the curve he noticed the lights of defendant Ellis' vehicle approaching from the north, then some 700-800 feet away, and when they were about 400-500 feet in front of him he could tell they started across to his lane of traffic. He ran his arm through the horn cord and began to blow his horn, applied his brakes, pulled to the right as far as he could, and began flicking his fog lights. The shoulder was approximately 3 feet wide, and ahead of Hampton and near the scene of collision was a rather deep culvert, the edge of which was 3 feet 3 inches from the right edge of the pavement. At the last instant, just before the impact, he pulled his tractor sharply to the left in order to avoid a head on collision, so that at the time of the impact the left front wheel of his tractor was 'slightly' over the center line of the pavement although his trailer was still directly north and south. The highway patrolman, who appeared on the scene shortly, testified that skid marks extended from the rear dual wheels of the tractor back (south) a distance of 145 feet. The picture exhibits show these marks to be well over to the right and near the extreme east side of Hampton's northbound lane. The right front headlight of the Hampton truck was smashed. The patrolman said that the one remaining light was of 'normal' brightness, but because the collision had bent it downward he could not say whether it was on high beam or low beam.
Ellis, the defendant, the southbound party, was driving a tractor pulling a large empty stock trailer. He had his fog lights burning. He saw the lights of Hampton's tractor when he was 600-700 feet away. He was then driving 30-35 mph. It 'seemed like' 30 mph. At 500 feet he was completely blinded by Hampton's lights. He tried to hold the wheel straight and did not attempt to turn to the right or left. He began blowing his horn and blinking his lights. As to just where, in relation to the point of impact, he began this blinking of lights will be discussed in more detail hereinafter. He said that his vehicle had slowed to about 20 mph at the time of the collision, but as to just what effort, if any, he had made to brake his vehicle to a stop the record does not show. At one point in his testimony, in explaining that a vehicle will 'wander' to one side or the other even though the wheel is not voluntarily turned by the driver, he said, 'It is not possible you can coast along straight down the road.' He said he never saw Hampton's fog lights; that had he been able to see his position on the road he could have turned to his own (right) side of the road within a distance equal to the length of his outfit, which was some 45 feet long.
The case was tried to the jury largely on the question of 'high beam or low beam.' Defendant Ellis contended that had Hampton dimmed his lights he, Ellis, could have located himself on the road, turned aside, and thereby prevented the collision. Hampton, on the other hand, contended that he at all times had his lights on low beam. The trial resulted in a six-woman-three-man jury verdict for defendants on both plaintiffs' claim and defendants' counterclaim. Plaintiffs have appealed, and because of the juxtaposition of the parties we will refer to them hereafter by name.
The case is not presented to us upon any complaint of error in refusing to direct a verdict for plaintiffs. Four assignments are made. Two of them are in respect to the giving of instructions; one complains of error in the refusal to permit amendment of pleadings; and the remaining one deals with alleged error in respect to argument of counsel. The parties devote most of their attention to several alleged errors in the giving of defendants' instruction number 4, which is as follows:
'With respect to the counterclaims of the defendants against the plaintiffs, the court instructs the jury that if you find from the evidence that at the time and place and before the collision defendant Melvin Ellis was blinded by the lights of plaintiffs' truck and was on the wrong side of the highway and in a position of imminent peril of being struck and injured by plaintiffs' truck, and if you further find from the evidence that plaintiff Hampton saw, or by the exercise of the highest degree of care could have seen defendant Ellis in such position of imminent peril in time thereafter by the exercise of the highest degree of care, with the means and appliances at hand, with reasonable safety to himself, his vehicle and others using the highway to have ceased blinding defendant Ellis (if so) and to have given defendant Ellis warning by dimming or lowering the beam of his headlights in time thereafter for defendant Ellis to have discovered his position on the wrong side of the highway and to have turned his vehicle back onto the right or west side of the center line of the highway and that had plaintiff Hampton so dimmed or lowered his lights defendant Ellis could and would have returned to the west side of the center line and by so doing the collision could have been avoided;
'And if you further find from the evidence that plaintiff Hampton failed to exercise such care to cease blinding defendant Ellis (if so) and to give defendant Ellis such warning and that such failure of plaintiff Hampton was the direct and proximate cause of the collision and that defendant Ellis was thereby injured and defendant Raines' truck damaged, then you are instructed that you must return a verdict for the defendants on their respective counterclaims and against the plaintiffs jointly, and this is true even though you find from the evidence that defendant Ellis was negligent in getting himself and his truck in such position of imminent peril on the wrong side of the highway.'
The first attack upon this instruction is that it does not hypothesize Ellis' obliviousness. While obliviousness of the injured party has been said to be an essential element in many failure to warn cases, 1 nevertheless it has been held to be but a 'subsidiary evidentiary fact' and need not be hypothesized in an instruction. Perkins v. Terminal R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Harrow v. Kansas City Public Service Co., Mo., 233 S.W.2d 644; Donahoo v. Illinois Terminal R. Co., Mo., 300 S.W.2d 461, 466; Scott v. Terminal R. Ass'n of St. Louis, Mo.App., 86 S.W.2d 116.
Moreover, we think Ellis was not oblivious in the sense intended by the humanitarian doctrine. He knew that his vehicle was approaching another vehicle upon a two-lane highway, the principal width of which would soon be consumed by the two vehicles. He was an experienced truck driver. He knew that his vehicle might 'wander' even though he did not turn the wheel. He knew that if the two vehicles continued their approximate courses a collision was not only possible but highly probable. He may not have known which side of the road he was on, but he knew he was in danger of collision and he knew why he was in danger. He was in this respect like a man who has fallen into a pen of wild bulls. He may not be sure that he will be gored, nor, if so, which bull will gore him, nor, if so, from which side the goring will come; but he is not oblivious to the fact that he is in danger of being gored. It seems to us that if defendants' case is to be sustained it must be upon the principle that Ellis became in a position of peril by virtue of being trapped, in this case trapped by blinding lights, and that he could not escape by turning aside until Hampton released that trap by dimming his lights. 2 We think Ellis was not oblivious, but in the peculiar factual situation we have there are some analogies which may be drawn from those cases involving 'fixed purpose' inattention or obliviousness, in assessing Hampton's duty to discover the cause and apply the remedy for the peril. And we think there might remain the question of whether Ellis, being aware of his danger and not incompetent, was actually not in imminent and inextricable peril so long as he had the time and ability (if he did) to avoid the collision by braking his vehicle to a stop, and also whether his position on the road under these circumstances carried the 'reasonable appearance' of...
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