Highfill v. Brown
| Decision Date | 12 January 1959 |
| Docket Number | No. 1,No. 46832,46832,1 |
| Citation | 320 S.W.2d 493 |
| Parties | Ralph T. HIGHFILL, Plaintiff-Respondent, v. Leroy Francis BROWN and H. Azell Morris, Inc., a Corporation, Defendants-Appellants |
| Court | Missouri Supreme Court |
James H. Keet, Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for defendants-appellants.
Farrington & Curtis, Richard Farrington, Mann, Walter, Powell, Burkart & Weathers, Jack A. Powell, Springfield, for plaintiff-respondent.
Plaintiff Highfill filed this suit against the defendants Brown and H. Azell Morris, Inc., for $27,500 as damages for personal injuries alleged to have been sustained in a collision of a car which he was driving and a pickup truck driven by Brown for Morris, his employer. Brown filed a counterclaim asking $25,000 for personal injuries he sustained and Morris filed a counterclaim for $900 as damages to the truck. A trial resulted in a verdict for the defendants on plaintiff's petition and a verdict for plaintiff on defendants' counterclaims. All parties filed motions for a new trial. The trial court sustained plaintiff's motion for new trial on an assigned reason that defendants' instructions 7 and 12 'were confusing and misleading in this case and that the giving of them constituted error as a matter of law.' The court overruled defendants' motion for new trial. From the judgments entered, the defendants appealed.
The collision in question occurred at about 5:30 o'clock on the afternoon of February 18, 1957, on Highway 65 about 2 1/2 miles north of the intersection of Highways 65 and 66, north of Springfield, Missouri. Highway 65 runs north from Springfield. About 2 miles north of the intersection, beginning at Krasser's Store, there is a slight downgrade for a short distance and then an upgrade. A driver going north has a clear view of the roadway north from the crest at Krasser's Store for a distance of at least 1/2 mile. At a point north and a little more than halfway from the south crest to the north crest there is a driveway joining the west side of the highway and running westerly to a number of private homes.
Immediately before the collision, Brown was driving north at a speed of about 45 to 50 miles per hour. Following Brown were two cars about two car lengths apart. As Brown neared the driveway, he slowed down to a speed of about 20 m. p. h., intending to enter the driveway to his left. About this time, plaintiff approaching from the rear at a speed of about 50 m. p. h., noticed the three vehicles ahead of him and seeing a clear road on the left side of the highway, he began passing the cars ahead. Just as he passed the second car and about the time he was about to pass Brown's truck, Brown turned the truck to the left and plaintiff's car collided with it. The truck came to a stop several car lengths north of the driveway on the west side of Highway 65. Plaintiff's car came to rest a short distance south of the truck. There was no dispute as to the above facts and circumstances. The dispute in the evidence was whether Brown give any signal of his intention of turning to the left at the driveway and whether plaintiff sounded a warning of his intention of passing the truck.
A further dispute, which we shall dispose of before considering other questions, concerned the question of whether the driveway to the left was an intersection within the meaning of Sec. 304.016, Subsection 4(2), V.A.M.S., Pocket Parts, p. 66, which provides that no vehicle shall at any time be driven to the left side of a roadway 'when approaching within one hundred feet of or at any intersection * * *.' Sec. 301.010(8), V.A.M.S., Pocket Parts, p. 3, Definitions, reads as follows: '(8) 'Intersecting highways,' any highway which joins another, whether or not it crosses the same; * * *.' The evidence in the record justifies the statement that the driveway in question to the west of Highway 65 was not a public road, had not been dedicated to the public, and was used by three home owners. It is evident that the driveway did not come within the definition of the statute. 60 C.J.S. Motor Vehicles Secs. 351 and 352, pp. 833-836.
There is substantial evidence in the record to support a finding that each driver, Highfill and Brown, was negligent. The jury evidently found that they were negligent and therefore found against both plaintiff and defendants on their claims for damages.
There is also evidence from which a jury could find that either or both of the drivers were free from negligence. In short, there was evidence both pro and con as to whether Highfill sounded a timely warning of his intention of passing the truck. There was evidence both that Brown did and that he did not give a timely signal of his intention of making a left turn into the driveway.
The evidence in the record shows that both drivers were acquainted with the highway and knew of the existence of the driveway in question. Each driver had traveled the highway for many years.
The trial court granted a new trial deeming instructions 7 and 12, given at defendants' request, to be confusing and erroneous. We shall not consider instruction No. 7 for the reason that we deem it not to be prejudicial. On retrial, it may be redrafted to conform to the evidence. Instruction 12, which the trial court held to be 'confusing and misleading' informed the jury, in substance, that if the jury found that on February 18, 1957, the driveway where the collision occurred was visible to a northbound motorist for at least a quarter of a mile and that Brown was driving the truck in question north and approaching the driveway and that plaintiff was also driving his car north and behind the truck and that 'if you further find that at said time and place the plaintiff overtook the defendants' automobile from the rear and that plaintiff thereafter left the northbound lane of travel and drove his automobile to the left side of the highway for the purpose of overtaking and passing the defendants' automobile at said driveway, when plaintiff knew, or by the exercise of the highest degree of care should have known, that defendants intended to turn to the left into said driveway, if so, and if you find that in so doing, the plaintiff was negligent and that such negligence, if any, directly and proximately caused or contributed to cause the collision between plaintiff's and defendants' automobiles and plaintiff's injuries mentioned in the evidence,' then the jury should find for the...
To continue reading
Request your trial
-
Barney v. Suggs
...consider errors not raised or preserved in cases which otherwise fall within their appellate jurisdiction. See, e.g., Highfill v. Brown, 320 S.W.2d 493, 497-498 (Mo.1959); Rasco v. Rasco, 447 S.W.2d 10 (Mo.App.1969). Jurisdiction must be established by questions preserved for review and not......
-
Myers v. Buchanan
...or in the exercise of the highest degree of care, should have known that defendant Buchanan intended to make a left turn. Highfill v. Brown, Mo., 320 S.W.2d 493, 496; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866, 872. In Highfill v. Brown a similar instruction was held erroneous ......
-
State v. Swinburne, 46829
...'by the preponderance, that is, the greater weight of the credible evidence, to the reasonable satisfaction of the jury.' Highfill v. Brown, Mo., 320 S.W.2d 493, 497, citing recent cases condemning similar instructions. We hold the present instruction to be reversibly erroneous because of t......
-
Thompson v. Jenkins
...satisfaction of the jury,' but only 'by a preponderance, that is, the greater weight of the credible evidence' (Highfill v. Brown, Mo., 320 S.W.2d 493, 497; Padgett v. Missouri Motor Distributing Corp., Mo., 177 S.W.2d 490, 492; Timper v. Missouri Pac. R. Co., Mo., 98 S.W.2d 548). Where pla......