Hodges v. American Bakeries Co., 51436
| Decision Date | 13 March 1967 |
| Docket Number | No. 51436,51436 |
| Parties | Eddie Earl HODGES, (Plaintiff) Appellant, v. AMERICAN BAKERIES COMPANY, a corporation, and Kenneth Earl Dickson,(Defendants) Respondents. |
| Court | Missouri Supreme Court |
Pollock, Ward, Klobasa & McGinnis, T. Hartley Pollock, and Roberts P. Elam, St. Louis, for appellant.
Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. X. Cleary, Paul S. Brown, J. C. Jaeckel, St. Louis, for respondents.
This is an action for $25,000 damages for the wrongful death of plaintiff's husband. Verdict and judgment were for defendants and plaintiff appeals. This court has jurisdiction because the amount in dispute exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.; Brewer v. Silverstein, Mo., 64 S.W.2d 289, 290(1).
Plaintiff alleges the court erred in (1) giving instruction No. 6, on behalf of defendants, and (2) admitting in evidence the testimony of a witness for defendants. The case was submitted on excessive and negligent speed. It was tried in November, 1964, before the effective date of our rules requiring use of MAI instructions.
The motor vehicle collision in which plaintiff's husband was killed and out of which this action arose occurred Sunday night, August 5, 1962, at about 10 o'clock on U.S. Highway 61, a two-lane highway in Perry County, about one and one-half miles north of the intersection of that highway and state route 'A', near Uniontown. Highway 61, in the general area of this collision, runs in a north-south direction, has a concrete surface and a concrete lip on its edges or sides and dirt shoulders twelve and one-half feet wide on its east and ten feet wide on its west side. On the night in question the sky was overcast and dark; it had been raining and, according to defendant Dickson, was raining at the time of collision; the roadway was wet and visibility reduced; normally heavy weekend traffic was augmented by an annual picnic at Perryville. Speed limits were 70 mph in the daytime and 65 mph at night. The vehicles involved were a 1949 model black Packard sedan, occupied by plaintiff's deceased husband as a passenger and others, and a GMC diesel tractor pulling a Fruehauf enclosed van-type trailer driven by defendant Dickson, an employee of defendant, American Bakeries Company.
At the time of the collision the Packard was stopped, headed north, on the pavement in the east or northbound lane 'right at' and approximately due west of a yellow, diamond shaped, highway marker located on the east shoulder indicating by a black arrow a curve ahead to the right or east and by the numerals '55', a suggested speed limit for negotiating the curve. John Whitley, owner of the Packard, Willie Williams, plaintiff's decedent, and Anna McCalister, sister of plaintiff, were returning from a funeral they had attended at Marianna, Arkansas, to their homes in Kirkwood, Missouri. At the time the Packard stopped or stalled on the highway at the point of the later collision, Mr. Whitley was driving, Williams was seated on the right-hand side of the front seat, Mrs. McCalister occupied the back seat on the right, and plaintiff's husband occupied the left side of the back seat.
While the general area is hilly, the highway is straight from a point 1,000 feet south of the above-mentioned curve marker to the scene of the collision. And north of that scene it is straight for another 300 feet until it begins to curve to the right or east. Commencing at the point 1,000 feet south of the curve marker and driving north, the highway is level for approximately 100 feet, and then it goes slightly upgrade for approximately 225 feet to a crest, thence slightly downgrade approximately 125 feet to and across a bridge at Indian Creek (550 feet south of the scene of the collision), thence continues the slight downgrade another 150 feet to a law point, thence up a 3.6% grade some 400 feet to the point of collision. Approximately 100 feet south of the point of collision a farm lane leads east off the highway.
Willie Williams, the only witness for plaintiff as to the facts of the collision, testified: He drove the Packard from Marianna to Jackson, Missouri, where he turned over the driving duties to Mr. Whitley and went to sleep sitting in the front seat; that the next thing he knew the automobile jerked a couple of times, stalled, and came to a full stop in the northbound lane 'right at the (curve) sign'; that it was drizzling rain at the time; that Mr. Whitley tried to start the motor, but got no reaction; that Whitley, dressed in white hat, white shirt and black pants, then got out and walked to the rear of the automobile and he (Williams) turned around in the seat and looked toward the rear where he could see Whitley some ten or twelve feet behind the automobile and in the center of the east lane. He also saw the headlights of an approaching northbound vehicle which later proved to be a Ford pickup truck. Watching the headlights of this vehicle, he reached over with his foot and applied the brake pedal to brighten the taillights. He could tell that the taillights were burning because he could see the red reflection from the wet pavement. He also testified that the Packard had a red reflector strip below each of its taillights. The Ford pickup came up behind the stalled Packard, slowed down almost to a stop, and then continued on up the highway.
Williams further testified that he continued to watch to the rear and saw the approaching headlights of another vehicle, the tractor-trailer unit or rig being driven by defendant Dickson; that the headlights were on low beam until it reached the Indian Creek bridge and then switched to high beam; that he continued to watch Whitley, who was walking farther to the rear, and the headlights; that as the tractor-trailer approached at a speed estimated by him at between 50 and 60 mph, he saw Whitley jump to the side of the road near the farm lane; that the tractor-trailer continued its approach, without slowing and collided with the rear of the Packard; that the collision caused him to be thrown out of the automobile and onto the east dirt shoulder.
Williams further testified that he did not know how long the Packard had been stopped on the highway before the collision, but that 'it was a very short time'; that no one made any attempt to push it backwards and onto the shoulder.
Virgil W. Bell, called to the stand by plaintiff, testified: that on the night of August 5, 1962, he was enroute north on Highway 61 to St. Louis, driving his 1957 Ford pickup truck; that it was a dark, misty night, the road was wet and the traffic 'pretty heavy'; that he was using the low beams on his headlights and driving at a speed of about 45 miles an hour; that south of Perryville he came upon a stalled car shortly after crossing Indian Creek bridge; that as he crossed the bridge he met a southbound car which blinked its lights and, when he looked at the road again, he could see a stalled car ahead some 350 to 500 feet; that as he approached the stalled car another southbound car was approaching so close that he could not then pass and he had to stop; that he realized what was confronting him when he was 250 or 350 feet from the stalled automobile; that he immediately applied his brakes and his truck slid, turned at an angle to its left, and came to a stop some 5 to 15 feet behind the stalled automobile; that, after the second southbound car had passed, he went around the stalled automobile and on his way. He did not know whether it was the headlights on his truck or the stalled car being silhouetted in the headlights of the second southbound automobile which enabled him to see the Packard; that he did not see a man behind the stalled car flagging or waving his arms, but did see a man standin by its door on the driver's side; and, that he did not see any lights on the Packard. He further testified that he was in a filling station at Perryville a week or so later and learned about this collision.
Defendant, Kenneth Earl Dickson, the only witness for the defendants as to the facts of the collision, testified that on the occasion in question he was driving the tractor-trailer unit of the other defendant from Sikeston to St. Louis, Missouri; that the unit was equipped with a tachograph, with recorded the time of day, whether the vehicle was in motion, and, if so, its speed, and the miles traveled; that he normally drove this highway at a speed of 55 mph, when it was not raining; that as he approached the scene of collision it was raining and visibility was 'interfered with some'; that he believed (but was not positive) that his headlights were on low beam; that his...
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