Hansen v. St. Joseph Fuel Oil & Manufacturing Co.

• Decision Date: 13 June 1950
• Docket Number: No. 14033.,14033.
• Citation: 181 F.2d 880
• Parties: HANSEN v. ST. JOSEPH FUEL OIL & MANUFACTURING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F.2d 880 (1950)

HANSEN v. ST. JOSEPH FUEL OIL & MANUFACTURING CO. et al.

No. 14033.

United States Court of Appeals Eighth Circuit.

May 17, 1950.

Rehearing Denied June 13, 1950.

Charles M. Miller, Kansas City, Mo., for appellant.

Francis Smith, St. Joseph, Mo. (R. E. Culver, B. L. Kaufmann, W. J. Sherwood, and J. M. Garvey, St. Joseph, Mo., were with him on the brief), for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This appeal is from a judgment in an action brought by appellant against appellees to recover damages for injuries caused by a collision between an automobile operated by appellant and an oil truck owned and operated by appellees. Jurisdiction is based upon diversity of citizenship.

In his complaint, appellant (plaintiff below) charged appellees with negligence causing the accident, as follows: "Plaintiff states that on November 6, 1947, about 10:30 A.M., near Smithville in Clay County, Missouri, he was driving an Oldsmobile automobile, which he owned, accompanied by his wife, Bertha Hansen, on State Highway No. 169, moving south on said highway on the concrete paved portion of the west side thereof designated and marked for southbound vehicles and traffic when an oil truck and motor vehicle owned and operated by the defendants above named and being operated on the concrete paved portion of said highway on the east side thereof for northbound motor vehicles and traffic negligently on a descending grade on said highway suddenly turned over while moving northward onto the concrete pavement marked and designated for southbound traffic and motor vehicles, and negligently, immediately collided with the automobile of plaintiff moving southward thereon, seriously injuring and damaging plaintiff's and his automobile and injuring his wife so that she later died as a direct result and seriously and permanently injuring plaintiff as hereinafter set forth."

Appellees, after denying appellant's charge of negligence, alleged that any injury or damage sustained by appellant was directly caused by appellant's contributory negligence in the following respects:

"(a) That the plaintiff Emil Hansen was driving an automobile in a southerly direction on Highway 169 in which automobile his wife, Elizabeth L. Hansen was riding as a passenger, and defendant Harvey Hoyt was operating a truck and trailer in a northerly direction on said highway approaching the vehicle of plaintiff; that in addition to the vehicle driven by the said Harvey Hoyt another automobile truck was being operated at said time and place in a north-bound direction on said Highway 169, referred to in plaintiff's petition, and approaching the vehicle operated by plaintiff, and plaintiff knew or, by the exercise of the highest degree of care, could or would have known that unless he, the said Emil Hansen, stopped or slowed his said vehicle or changed the course thereof, his vehicle would run into and collide with the vehicle driven by the said defendant, Harvey Hoyt, and the said Emil Hansen then and there carelessly and negligently failed to stop, to swerve or to slow his said vehicle or to change the course thereof and thereby caused or contributed to cause the vehicle of plaintiff to collide with the vehicle driven and operated by the said Harvey Hoyt.

"(b) That plaintiff negligently and carelessly failed and neglected to keep his automobile under control so as to prevent the collision with the vehicle operated by defendant Harvey Hoyt at said time and place when he saw or in the exercise of the highest degree of care could have seen the said Hoyt vehicle with which he collided in time to have stopped his automobile or to have checked or slackened the speed thereof or to have turned the same aside and thereby avoid said collision and the damages and injuries occasioned thereby, if any, all of which acts the said plaintiff negligently and carelessly failed so to do.

"(c) That plaintiff negligently and carelessly failed and omitted to exercise the highest degree of care to keep and maintain a careful and vigilant lookout for other vehicles on said highway at said time and place and failed to exercise the highest degree of care to avoid colliding with the truck operated by defendant Hoyt.

"(d) That at the time and place mentioned in evidence the vehicle driven by defendant Harvey Hoyt was proceeding northbound on said Highway 169 and at said time and place both it and another automobile truck were traveling in a northbound direction and approaching the vehicle driven by plaintiff, and although there was ample room for all three vehicles to pass each other in safety to said vehicles and their occupants, considering the highway and the level shoulders adjacent thereto, plaintiff carelessly and negligently swerved his vehicle from the west side of said highway and shoulder into the truck driven and operated by said Harvey Hoyt and thereby caused his said vehicle to collide with said truck."

The collision between the motor vehicles occurred in the forenoon of Thursday, November 6, 1947, near the bottom of a hill, referred to in the evidence as the Smithville Hill, on Highway 169, a heavily-traveled main highway. In this vicinity the highway runs north and south, is paved with concrete pavement 18 feet wide, with a black line dividing the southbound traffic lane from the northbound traffic lane. There are wide level dirt shoulders on each side of the concrete pavement. On appellant's side of the highway the shoulder is from 6 to 12 feet in width. From the crest of the Smithville Hill the highway descends a 5 per cent grade to the north for some distance, not stated in the evidence, to a level stretch approximately 800 feet long, then descends again on a 5 per cent grade for a distance also not shown by the evidence to a point where the highway levels off, several hundred feet from a bridge across the Little Platte River. Descending the Smithville Hill the highway makes an S curve. The operator of a motor vehicle descending the hill to the north comes out of this curve into the straightway at the beginning of the last descending grade on the hill.

The oil truck involved in the collision consisted of a tractor owned by appellee, Stevenson, and leased to appellee, St. Joseph Fuel Oil and Manufacturing Company, and a tank trailer owned by St. Joseph Fuel Oil and Manufacturing Company. The truck was driven by appellee Hoyt. The overall length of this combination was about 33 feet. At the time of the accident the tank was filled with fuel oil. The weight of the loaded vehicle was about 40,000 pounds. Its brake system is described in the evidence as "vacuum over hydraulic." Appellant Hansen was driving a 1937 Oldsmobile passenger car.

At the trial appellant testified that just before the accident he had crossed the bridge over the Little Platte River driving south at a speed of about 40 miles an hour. He fixed the point of the collision as being "a trifle across the bridge," "just a short ways" from the south end of the bridge. He did not see the oil truck moving north down the Smithville Hill until it appeared immediately in front of his car in the southbound traffic lane so close to his car that he was unable to avoid the collision by any means at his disposal. He never at any time saw another truck (known as the Monteer truck) which the evidence shows was proceeding down the Smithville Hill immediately ahead of appellee's oil truck just before the accident occurred. A witness for the appellant placed the point of the collision at about 200 feet south of the bridge over the Little Platte River. The driver of the Monteer truck, a witness for appellant, testified that as he was descending the Smithville Hill he looked in his rear view mirror and saw the oil truck coming down the hill behind him, and at the same time he saw appellant's car coming from the north. He said that the oil truck attempted to pass him "near the bottom of the hill." He knew that the oil truck was going to hit him or appellant's car. To save himself and to give the oil truck room to pass, he drove his truck completely off the pavement onto the shoulder of the highway along his traffic lane. Just as the rear end of the oil truck passed the front end of his truck the collision occurred. The oil truck passed so close to his truck that the body of the tank trailer "sideswiped" the body of his truck and the rear bumper on the tank trailer struck his front bumper. He saw appellant turn his car onto the shoulder of the highway adjacent to the southbound traffic lane and suddenly turn it back onto the highway in front of the oil truck.

In a deposition taken before the trial and introduced in evidence by appellees, appellant gave the following testimony:

"Q. * * * Now, where were you driving along when you first saw the oil truck? Tell me about where you were. Were you driving on a hill or curve or straightaway? Tell me about it. A. I believe there's a little bend in the road, not a curve and no hill. Where I was at was pretty much on the level.

* * * * * *

"Q. You mean the oil truck was coming from the south? A. Yeh.

"Q. It was coming around a bend? A. Not a sharp bend, just a little — it ain't quite straight.

"Q. A gradual curve. A. Yeh.

* * * * * *

"Q. Was the curve on which he was traveling, was it coming uphill, downhill, or coming straight on a level stretch? A. I believe it was pretty much on the level.

* * * * * *

"Q. Do you know specifically, though, how fast you were going just before this accident happened? A. I think I was driving forty miles when it happened. I didn't see no speed limit sign. There was no speed limit sign that I seen. It was a good road; you could see for a quarter of a mile.

* * * * * *

"Q. Mr. Hansen, can you tell me this, Was there anything to prevent you from seeing the oil truck, any obstruction or anything to prevent you seeing the oil truck before you did? A. No. He...