Hampy v. Midwest Hanger Co.
| Decision Date | 04 February 1962 |
| Docket Number | No. 23483,23483 |
| Citation | 355 S.W.2d 415 |
| Parties | Charles HAMPY, Respondent, v. MIDWEST HANGER COMPANY, a Corporation, and Carl F. Painter, Jr., Appellants. |
| Court | Missouri Court of Appeals |
McFarland, Rittman & Krimminger, Kansas City, for appellants.
Gene J. MacElhern, E. E. Thompson, Ernest H. Fremont, Jr., Kansas City Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
MAUGHMER, Commissioner.
Plaintiff drove his 1952 Chevrolet Sedan into the rear end of defendant's International tractor-trailer, which was standing in the outside lane of a dual lane highway. The trial resulted in a verdict and judgment awarding plaintiff $15,000 as damages. Defendants have appealed.
Many of the events leading up to this accident are not disputed. It occurred about 1:30 a. m. February 6, 1958, on a cool and clear winter night. The highway pavement and shoulders were dry. The place was the Village of Pleasant Valley, just north of Claycomo in Clay County, Missouri. The exact location was Highway 69, 300 or 400 feet south of its junction with Highway 10. The streets in Claycomo were lighted. Those in Pleasant Valley were not, but there was a blinker light at the junction of Highways 69 and 10. Both cars were headed generally in a northerly direction. Highway 69 forked a few hundred feet south of the place of collision and continued with four lanes of pavement--two for northbound and two for southbound traffic--and with a median in the center. The northbound pavement was 24 feet wide with a 12 foot shoulder of gravel. There was a cross-over immediately adjacent to the spot of collision. The front end of the Chevrolet hit the rear end of the tractor squarely, both cars being one or two feet right of the center line.
Plaintiff Charles Hampy was 30 years of age, employed as an inspector at the General Motors B. O. P. plant in Kansas City. On the evening in question he had worked from 4:00 p. m. until 12:30 a. m. With a fellow employee Cleo Burton, he started to drive in the Chevrolet to his home near Liberty, Missouri. His brakes were in good order and from the time he left the plant until the accident he drove with his lights on low beam. He had traveled this route many times and was quite familiar with it.
Carl F. Painter, Jr., the defendant operator, was employed by defendant Midwest Hanger Company as a truck driver. At about 12:30 a. m. he left the company dock with a load of coat hangers and was bound for Des Moines and Mason City, Iowa. The load weighed 26,000 pounds. The transport vehicle consisted of a 1957 International truck and tractor-trailer. Mr. Painter did not ordinarily use this particular equipment and he was not fully familiar with the operation of the gas tanks which were three in number--a seat tank and two saddle tanks. Fuel from these tanks was utilized and its flow controlled by means of a hand-operated valve located on the cab floor. Mr. Painter drove into North Kansas City, stopped at a Hudson Oil Company station, took on 30 gallons of gasoline and proceeded on by way of 69 Highway to the place of the accident.
Beyond the evidence just recounted there is some dispute as to just what actually occurred and why. Mr. Painter stated that as he entered upon the divided highway and started up the slight incline there his motor began to sputter, which indicated to him that the seat tank which he was then using, was empty. He reached down and turned the valve which would connect one of the saddle tanks. He said the motor immediately picked up, but an instant later again sputtered and quickly stalled, leaving him standing on the right lane of the northbound dual lane. He stated the engine stalled so quickly that he had no opportunity to pull onto the shoulder. He then picked up his flash light and started to get out but before he was able to do so 'there was a screeching and a loud bang' and the accident had happened. He testified that he then got out of the truck and found the Chevrolet wedged under the back end of the trailer. He tried to open the Chevrolet left door, was unable to do so, then tried the right door, which did open. He said he had not had time to set out flares.
It was plaintiff's version and testimony that as he approached the scene he was driving 40 to 45 miles per hour; that he had just met a car coming from the north; that its lights did not blind him, but there was a glare. He said he saw defendant's vehicle an instant later and estimated he was 120 or 130 feet away. He stated that at first he thought the tractor-trailer was moving, but quickly realized it was not; that he immediately put on his brakes and attempted to 'veer to the left'. However, he declared he was afraid to turn clear to the left lest he turn over and because he thought someone might be standing on the left side of the truck. Plaintiff testified further that no flares were out and the rear end of defendant's vehicle was unlighted. He said that when defendant Painter opened the right door and helped him out that Painter said: . Defendant denied making this statement.
State Trooper Oberhelman found skid marks from the Chevrolet for a distance of 30 feet to the point of impact. Plaintiff estimated that he could see a distance of 100 feet with his lights on low beam but said if they had been on high beam he could have seen a distance of 300 feet. The testimony of plaintiff's passenger Mr. Burton was substantially in accord with plaintiff's.
We have not summarized the evidence relating to plaintiff's injuries since no point has been made on appeal as to the amount of recovery. Plaintiff did receive substantial injuries. The transcript in this case contains 712 pages. While much of it concerns plaintiff's injuries and evidence relating to certain jurors which will be discussed later, there was voluminous testimony relating to the question of liability. Depositions of the parties were discussed and gone over again and again. The parties were examined and re-examined, cross-examined and re-cross-examined. Our summary of the facts is by comparison brief and counsel may feel, rightly or wrongly, that we have omitted some details which may seem important and which were probably of value in conducting a complete trial. However, we believe our summary presents the salient and basic facts, both parties' explanations and contentions sufficiently to portray the occurrence and to enable us to determine the fundamental issues posed by the appeal.
Defendant's first assignment of error is that the court should have sustained the motion for directed verdict because plaintiff was guilty of contributory negligence as a matter of law. Defendants' Instruction No. 3 submitted contributory negligence to the jury on two points. (1) plaintiff's failure to turn to the left and (2) plaintiff's failure to stop. The verdict was against them under this submission.
This court (Rader v. David, Mo.App., 207 S.W.2d 519, 523) defined contributory negligence this way: .
In Thompson v. Byers Transp. Co., Inc., 362 Mo. 42, 239 S.W.2d 498, 499, 500, plaintiff was driving in fog and ran into defendant's truck which was stopped on the highway. Plaintiff said defendant's truck had no rear lights. Plaintiff, driving 15 to 20 miles per hour, said he would have required 50 feet in which to stop. He first saw defendant's truck 10 feet away. Plaintiff's lights were on dim. The court said:
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The Supreme Court in Parsons v. Noel et al., Mo., 271 S.W.2d 543, reiterated that the defendant carries the burden of showing plaintiff's contributory negligence, that usually the question is one of fact for the jury especially where there is a conflict in the testimony, that it is for the jury unless reasonable minds can draw only the conclusion that plaintiff was negligent and that all legitimate inferences are viewed in a light most favorable to pl...
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