Johnessee v. Central States Oil Co.
| Decision Date | 03 February 1947 |
| Docket Number | No. 20780.,20780. |
| Citation | 200 S.W.2d 383 |
| Parties | JOHNESSEE v. CENTRAL STATES OIL CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Boone County; W. M. Dinwiddie, Judge.
"Not to be published in State Reports."
Action by William Johnessee against the Central States Oil Company to recover damages for death of plaintiff's wife and to recover for damage to plaintiff's truck and trailer, resulting from collision. Judgment for plaintiff, and defendant appeals.
Affirmed.
Howard F. Major, of Columbia, for appellant.
George A. Spencer and Howard B. Lang, Jr., both of Columbia, for respondent.
BOYER, Commissioner.
William Johnessee brought this action to recover damages on account of the death of his wife, Nellie Johnessee, and for damage to plaintiff's truck and trailer, all alleged to have resulted from a motor truck and trailer collision between defendant's truck and trailer transport and that of the plaintiff. The petition charged that the collision occurred on account of the carelessness and negligence of the driver of defendant's truck and transport, who at the time was the agent and servant of the defendant and acting within the scope of his authority. The specific charges of negligence alleged in the petition and submitted to the jury for its finding thereon were that the operator of defendant's truck carelessly and negligently drove and operated said truck at a high and dangerous rate of speed under the circumstances then and there existing, and carelessly and negligently failed to drive and operate defendant's said truck as close to the right-hand side of the highway as practicable.
Defendant's answer consisted of specific denials of the charges of negligence and alleged contributory negligence on the part of plaintiff and his wife, Nellie Johnessee.
At the close of the evidence, defendant's motion for a directed verdict was overruled. The case was submitted to the jury upon instructions given on behalf of both parties and ten jurors signed a verdict for plaintiff and assessed his damages at $5000. Judgment was entered in accordance with the verdict and thereafter the defendant in due time and proper manner perfected its appeal to this court. The questions for determination as presented in appellant's brief are that the court erred in overruling defendant's motion for a directed verdict at the close of all the evidence, and erred in the giving of instructions on behalf of plaintiff.
The prime question for determination on this appeal arises upon the main assignment of appellant that the court erred in overruling defendant's motion for a directed verdict at the close of the evidence because "there was no evidence of any negligence on the part of defendant which was the proximate cause of the collision." A search of the transcript for evidence relevant to the above assignment discloses the following: The collision in question occurred on June 14, 1945, about 10:45 a. m., at Silver Fork bridge located about 14 miles north of Columbia in Boone County, Missouri. The bridge in question carries the roadway of U. S. Highway No. 63 across Silver Fork creek, and said highway extends generally in a northerly and southerly direction. At said time defendant's gasoline transport, consisting of a tractor and trailer, was being operated in a southerly direction on said highway approaching said bridge, and at the same time plaintiff was driving a red G. M. C. tractor and trailer truck in a northerly direction over and along said highway in advance of an International tractor and trailer belonging to plaintiff, and which plaintiff claimed was being operated at said time by his wife, Nellie Johnessee. The vehicle being operated by plaintiff passed the defendant's vehicle a short distance north of the north end of the bridge. Thereafter, defendant's transport and plaintiff's International tractor and trailer collided at or near the south end of said bridge. An explosion and fire resulted from the collision and two unidentified bodies, burned beyond recognition, were found in the remains of the cab of plaintiff's International truck and the body of John Terrell, the driver of defendant's gasoline transport, was also burned beyond recognition and was found in the cab of defendant's truck.
Mr. Dewey Welch, who at the time was City Engineer for Columbia, and who formerly had been connected with the Highway Deprtment for a number of years, prepared a drawing and plat of the highway and bridge where the collision occurred. He testified in detail as to the structure of the bridge and the nature and character of the highway approaching the bridge from both directions. The plat was introduced in evidence as plaintiff's Exhibit "A." The testimony of this witness shows that the bridge is straight and that there are curves in the highway at both ends of the bridge which start right at the bridge; that the curve of the highway at the south end of the bridge is 11 degrees, 28 minutes and extends southward 406.9 feet; that the curve at the north end is 6 degrees and is 138.3 feet long; that the highway north of the bridge is 19 feet in width, built in two 9 foot slabs with a foot between the forms poured with asphalt; that a projection of the center line of the pavement north of the bridge would pass on the west side of the bridge banister and that the west half of the pavement if projected in a straight line would miss the bridge; that the curve of the black line begins 138 feet north, and that the maximum curve is 79 feet north of the bridge; that the curves of the highway approaching both ends of the bridge are sharp, and the one on the south is exceedingly so and sharper than the one on the north; that the bridge is 180½ feet in length, and the traveled portion of the floor of the bridge is 19 feet, 10 inches in width; that there is a 6 inch curb on the side of the bridge next to the railing with a one inch slope. There are guard rails and concrete posts on the sides of the bridge and the rail on the west side of the bridge is particularly described. It was shown by testimony and photographs that the concrete posts are 3 feet and 3 inches above the floor of the bridge, and the railing is about 3 inches lower than the posts. The concrete posts project out from the railing about 4 inches toward the road. The posts along the railing on the west side are shown to be set at various distances apart according to the sections of the bridge, some being 22½ feet apart and two others 47 feet, 3 inches, and then 22 feet apart at the north end. The bridge is constructed in two short spans and a long span across the creek. The third post, often referred to in testimony, is about 45 feet from the south end of the bridge and it is aproximately 135 feet from said third post to the north end of the bridge. The highway approaching the south end of the bridge is down grade with a series of reverse curves to the foot of the hill which is 300 or 400 feet south of the bridge, and then there is comparatively flat ground for the length of the curve south of the bridge.
Plaintiff testified that he had been engaged in the general business of produce trucking from various points in the south to the northern markets; that his wife had assisted him in his operation and had become a proficient driver; that he owned the truck which his wife was operating at the time of the collision and which was burned at the scene; that the trailer of said truck was 22 feet long with a tarpaulin cover; that a Mr. Hickey owned the G. M. C. truck which plaintiff was driving at the time in question; that the trailer attached to the tractor was of metal construction and was 24 feet long; that at the time he was engaged in transporting property to be used in a carnival and was doing so for the accommodation of a friend. a Mr. Craig; that his destination was Cass Lake, Minnesota; that a young man who wanted to go to Falls City, Nebraska, was riding with plaintiff's wife; that his wife drove the International truck and trailer from Jefferson City to Columbia on the morning in question; that they left Columbia and traveled north on Highway No. 63; that he was driving the Hickey truck and his wife was driving his truck; that he saw his wife driving his truck when it left Columbia; that he last saw the truck she was driving about two miles before they reached the bridge, and that she was then about a quarter of a mile behind him; that his average rate of speed on the highway was 35 to 40 miles an hour; that he was going at the rate of about 40 miles when he entered the bridge and slowed down some on the bridge. Plaintiff stated that as he was approaching the bridge he saw defendant's transport coming from the north, possibly a quarter of a mile away; that as defendant's transport approached him it appeared to be on its proper side of the road; that it did not slacken its speed as it approached the curve; that the transports passed each other when the rear end of the truck which plaintiff was driving was 15 or 20 feet north of the north end of the bridge; that the total length of his tractor and trailer was 35 feet; that at the time they passed, defendant's transport was traveling between 50 and 60 miles an hour; that it was apparently on its proper side of the road within a few feet of plaintiff's tractor, but he could not say where defendant's truck was as it passed him or thereafter; that he was not aware of any collision as he passed defendant's transport. Plaintiff further said that the transport which he was operating was at all times on the right-hand side of the road; that he was entirely on his side of the road when the transports passed; that he did not cross the black line at any time either crossing or at the north end of the bridge; that after he crossed the bridge he looked back to see if his wife had cleared it and when he did not see her he drove up the highway a short distance, stopped, and looked back, and saw smoke at the south end of the...
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