Highfill v. Brown
| Decision Date | 14 November 1960 |
| Docket Number | No. 47745,47745 |
| Parties | Ralph T. HIGHFILL, Respondent, v. LeRoy Francis BROWN and H. Azell Morris, Inc., a Corporation, Appellants. |
| Court | Missouri Supreme Court |
James H. Keet and Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for appellants.
Farrington & Curtis, Richard Farrington, and Mann, Walter, Powell, Burkart & Weathers, Jack A. Powell, Springfield, for respondent.
This is an action for $62,150 damages for personal injuries and property damage sustained by plaintiff when the right front of his 1956 Ford automobile came into collision with the left side of a Ford pickup 'wrecker truck' owned by defendant, H. Azell Morris, Inc., a corporation, and operated by its agent, defendant Brown, as plaintiff was attempting to pass the truck from the rear and the truck made a left turn from U. S. Highway No. 65 into a private driveway on the left-hand side of the highway. Defendant Brown and Morris, Inc., each filed counterclaims, Brown asking $25,000 damages for personal injuries and Morris, Inc., asking $900 for damage to its truck. The cause was previously tried and an appeal taken. See Highfill v. Brown, Mo.Sup., 320 S.W.2d 493. The second trial, as did the first, resulted in a verdict for defendants on plaintiff's claim and verdicts for plaintiff on defendants' counterclaims; and, also as in the former trial, the court sustained plaintiff's and overruled defendants' motions for new trial. Defendants have again appealed. For convenience we shall continue to refer to the parties as plaintiff and defendants. We shall also adopt, without quotation marks, but with certain modifications, portions of an opinion prepared in, but not adopted by, Division One of this Court.
Plaintiff's motion for a new trial was sustained on the sole ground that 'Instruction No. 9, given at the request of the defendants, was erroneous and prejudicial.' Defendants here contend that the court erred in granting a new trial to plaintiff on the stated ground and, also, that plaintiff was guilty of contributory negligence as a matter of law and that no case was made for the jury on plaintiff's claim. We shall consider the last assignment first.
If the defendants are correct in their contention that plaintiff made no case for the jury, the error, if any, in the giving of Instruction 9 was immaterial, because not prejudicial to plaintiff, and the court erred in granting plaintiff a new trial. Shroder v. Barron-Dady Motor Co., Mo.Sup., 111 S.W.2d 66, 67; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150, 151; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 830(8).
The issue of plaintiff's contributory negligence as a matter of law was properly raised in the trial court, since defendants pleaded such negligence, and at the close of all the evidence, moved for a directed verdict in their favor on that ground. In determining the issue presented, we must consider the evidence in a light most favorable to plaintiff and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence. We shall disregard defendants' evidence, unless it aids the plaintiff's case. Neal v. Kansas City Pub. Service Co., 353 Mo. 779, 184 S.W.2d 441, 442.
The collision in question occurred about 5:30 p. m. February 18, 1957, at a place on U. S. Highway No, 65 a few miles north of Springfield. This black-top, north-south highway was 24 feet wide and wet at the time of the collision. As stated, defendant Brown was driving his employer's truck north on the highway and was in the process of turning left into a driveway or gravel road on the west side of U. S. Highway No. 65 when the left side of the truck was struck by the right front of plaintiff's automobile which plaintiff was driving north on the same highway. Immediately prior to the collision, plaintiff had passed two automobiles, which were following the truck, and he was about to pass the truck when the collision occurred. The facts and circumstances reviewed in the opinion on the prior appeal, on the issue here, are substantially the same as shown by this record. Both vehicles were damaged and both plaintiff and defendant Brown were injured.
On the particular issue involved the evidence tended to show that as plaintiff proceeded northward on the highway and came over a rise he saw ahead of him the truck in question followed by two automobiles; that he slowed his automobile and followed these vehicles while he determined that no traffic was approaching from the opposite direction; that the view ahead was clear for a distance sufficient to enable him to safely pass the three vehicles which were moving at a speed in the neighborhood of 30 m. p. h.; that he didn't notice any change in their speed as he slowed behind them; that the highway was straight and reasonably level ahead; that he turned left into the southbound-traffic lane, speeded up, sounded his horn, passed the first automobile, signaled for the second, passed it, passing at 45 to 50 m. p. h.; and that he had signaled to pass the defendants' truck when the truck, suddenly and without any signal or warning, began a sharp left turn and came into the path of his automobile and, despite the application of his brakes and an attempt to swerve left, he ran into the left side of the truck at a point 15 feet south of the south edge of the gravel driveway into which the truck was turning. The truck had not crossed over the center line of the highway prior to making the sudden left turn. Plaintiff was looking straight ahead and, also, watching the three vehicles while undertaking to pass. He had made sure in his own mind that 'there wasn't none of them going to turn,' before he pulled into the left lane to pass.
In support of their contention that plaintiff was guilty of contributory negligence as a matter of law, defendants insist that the record conclusively shows that plaintiff 'did not keep a proper lookout'; and that 'he had constructive, if not actual, notice of Brown's impending left turn and could have avoided the accident by heeding this notice but, instead, persisted in his passing movement.' Defendants' argument in support of their position clearly shows that it is not based on a favorable view of plaintiff's evidence. In material respects their argument is based upon evidence offered by defendants, which evidence is not binding on plaintiff and, in fact, materially conflicts with, and is contradicted by, plaintiff's evidence and his personal testimony.
Plaintiff's position on this issue is that since the opinion on the former appeal held that there was 'evidence from which a jury could find that either or both of the drivers were free from negligence', this Court has held that plaintiff was not as a matter of law negligent; that this holding is the law of the case; and that, inasmuch as there is presently no contention by defendants that the former holding in that respect was palpably wrong and inasmuch as the evidence was essentially the same at the two trials on the matters relevant to the issue of contributory negligence, defendants' present contention has been determined adversely to them by the former opinion.
It is apparent to us from the statement of the case contained in the opinion on the prior appeal that the essntial facts relevant to the issue of plaintiff's contributory negligence were the same at the two trials. Indeed, defendants seem to concede that the essential facts were the same unless the specific matters pointed to by them caused the facts to be substantially different at the second trial. Defendants now insist that plaintiff made certain admissions in the trial of this case which were not in the record of the first trial, but, in fact, defendants only seek to draw adverse and unfavorable inferences from portions of plaintiff's testimony and to construe certain ambiguous statements unfavorably to plaintiff. From these alleged admissions and other evidence defendants insist that, as a matter of law, plaintiff negligently failed to keep a proper lookout and so caused and contributed to the collision; and that the new trial on plaintiff's claim was erroneously granted. We have examined the testimony which defendants contend was new or materially different at the second trial and find that the record does not support their contention. We must and do hold that the determination on the former appeal that plaintiff was not as a matter of law contributorily negligent has become the law of the case on that issue. Donahoo v. Illinois Terminal R. Co., Mo.Sup., 300 S.W.2d 461, 464. We are also of the opinion that the prior ruling on that issue was correct. The assignment is overruled.
Did the trial court err in granting plaintiff a new trial on the ground that Instruction No. 9, given at the request of defendants, was erroneous and prejudicial? Instruction 9 was defendants' instruction submitting plaintiff's contributory negligence. It submitted a finding '* * * that on February 18, 1957, the east-west gravel driveway to the left mentioned in the evidence * * * was openly visible to northbound motorists on said highway for at least one-quarter of a mile to the south thereof, * * * that * * * the defendants' automobile was being operated in a northerly direction * * * approaching the aforesaid driveway to the left, * * * that as defendants' automobile approached said driveway to the left, * * * it was slowed to a speed of approximately 20 to 25 miles per hour, * * * and was moved near the centerline of the pavement, * * * and that its red, mechanical blinker light was put into operation indicating a left turn when it was approximately 100 feet from said driveway * * * that the plaintiff was also operating his automobile in a northerly direction over and upon said highway * * * behind the defendants' automobile and was also approaching the aforementioned driveway to the left, * * * that at said time and place the...
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