Johnson v. Lee Way Motor Freight, Inc.
| Decision Date | 14 September 1953 |
| Docket Number | No. 1,No. 43384,43384,1 |
| Citation | 261 S.W.2d 95 |
| Parties | JOHNSON v. LEE WAY MOTOR FREIGHT, Inc., et al |
| Court | Missouri Supreme Court |
Frank C. Mann, Glenn A. Burkart, Mann, Mann, Walter & Powell, Springfield, for appellants.
Smith and Williams, Springfield, for respondent.
COIL, Commissioner.
A jury returned a verdict for $20,675 for personal injuries and property damage sustained by plaintiff as a result of the alleged negligence of defendants-appellants. Plaintiff, pursuant to the trial court's conditional order, remitted $7,500 and defendants have appealed from the ensuing judgment for $13,175. They contend that the trial court erred: In failing to direct a verdict for defendants on the ground that plaintiff was guilty of contributory negligence as a matter of law; in the exclusion of evidence; and in the giving of instructions. They also contend that $12,500, the portion of the judgment for personal injuries, is grossly excessive.
Plaintiff's contributory negligence was a jury question unless it may be said from all the evidence and the favorable inferences therefrom, viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was negligent. Thompson v. Byers Transportation Co., 362 Mo. 42, 239 S.W.2d 498, 499[1-4].
The evidence so viewed was such that the jury could reasonably find: That plaintiff, on active duty in the U.S.A.F., was returning from his home in New York to his station at Lubbock, Texas, in his Frazier automobile (he had driven Highway 66 only once before, viz., on his trip from Lubbock to New York), when about 1:30 a. m., on June 17, 1951, he collided with the rear end of a stationary tractor-trailer (referred to hereinafter as truck) facing west in the middle of the north half of Highway 66 at a place about 4 to 7 miles west of Rolla; that the truck was owned by defendant Lee Way Motor Freight, Inc., and was operated by its employee, defendant Sterrett; that, ever since leaving New York State, plaintiff and a soldier friend had been alternating in driving and sleeping; that plaintiff began driving last before the collision at a place west of St. Louis and at a time when heavy fog over the highway restricted visibility to such an extent that it was necessary for him to proceed very slowly; that as plaintiff approached Rolla, the heavy fog lifted and from there to the place of the accident patches of fog from time to time drifted across the highway making it damp and limiting visibility during the time that he was in a particular fog patch, but that between such patches there was no limitation of visibility; that as plaintiff approached the last fog patch before the collision, he was driving 50 to 55 miles per hour with his headlights on bright; that he observed ahead a fog patch which was not 'too big,' probably 3 to 5 car lengths in depth; that as or just after he entered this patch, he dimmed his headlights and took his foot from the accelerator; that his visibility in the patch was approximately 30 to 35 feet; that just as he emerged from the patch at a speed of about 40 miles per hour, he saw headlights shining towards him, the back end of a truck about 30 to 35 feet ahead (on which he saw no lights) and persons standing in the south half of the pavement opposite the truck; that he started to pull to his left to go around the truck but either then saw or realized that by so doing he would run into the persons standing there and swerved back into the north half of the highway and jammed on the brakes too late to have any stopping effect and ran into the rear end of the truck.
The highway was a 20 foot wide 'blacktop,' comparatively straight for considerable distances each way from the collision point, with dips in the surface (inconsequential insofar as the accident was concerned), with no dividing center line painted on its surface, and with 8 foot shoulders in good condition.
Prior to the time of the collision, a Ford traveling west about 250 feet ahead of defendants' truck was sideswiped by an eastbound Dodge. The Ford was stopped on the north shoulder facing west. The Dodge was stopped on the south shoulder facing east with either its headlights or parking lights burning. Following the Dodge was a Packard which also stopped on the south shoulder (with its headlights or parking lights burning) facing east, about 250 feet west of the Dodge. Within seconds after the sideswipe, defendants' truck came to a stop in the middle of the north half of the traveled portion of the highway. The driver and an occupant of the Dodge were the wives of the driver and an occupant of the Packard. These people left their respective automobiles as did the driver of the Ford and were engaged in conversation in which it appears the truck driver, defendant Sterrett, took some part. In any event, 4 to 5 minutes had elapsed (during which the truck remained stationary, Sterrett remained in his seat, the Dodge and the Packard remained on the south shoulder facing east with headlights or parking lights on, and some of the occupants of the automobiles stood in the south half of the highway opposite the truck), when plaintiff's automobile ran into the rear of the truck.
There is no contention that plaintiff failed to make a submissible case. Defendants' contention that plaintiff was guilty of contributory negligence as a matter of law is based upon the asserted proposition that it is always negligence as a matter of law to drive at such a speed that it is impossible to stop within the range of visibility. Plaintiff testified that at 50 miles an hour he could stop his automobile in less than 100 feet and that the damp pavement would probably cause the car to 'slide a little more.' Defendants say, therefore, that plaintiff's own testimony shows that he was traveling at a speed at which he could not stop within 30-35 feet, his range of vision while in the fog patch, and was thus guilty of contributory negligence as a matter of law.
Defendants concede that it is probable that the rule for which they contend has not been followed in some Missouri cases, but, as we understand, they say the rule is a proper one and that if it is no longer the law in this state, 'the question should be re-examined.' The rule referred to by defendants has sometimes been called 'the assured clear distance rule' and has been applied in certain Missouri cases, including Solomon v. Duncan, 194 Mo.App. 517, 185 S.W. 1141. Subsequent cases, however, including the comparatively recent case of Thompson v. Byers Transportation Co., supra, have rejected the rule insofar as it fixes an inflexible standard by which to measure negligence. That is to say, insofar as the rule means that a motorist is in all events and under all circumstances guilty of contributory negligence as a matter of law solely because he drives at a speed which is such that he cannot stop within the distance that his headlights make visible objects ahead of him. We continue to adhere to the view that one is not necessarily contributorily negligent as a matter of law solely because he drives at a speed which prevents his stopping within the distance his headlights reveal objects ahead of him; and that whether he is contributorily negligent as a matter of law depends upon all the circumstances in a particular case. See Prosser on Torts, Sec. 41, pp. 286, 287; 18 M.L.R. pp. 79, 80; Thompson v. Byers Transportation Co., supra; Kendrick v. Kansas City, Mo.Sup., 237 S.W. 1011, 1013; Drakesmith v. Ryan, Mo.App., 57 S.W.2d 727.
We are of the opinion that it was for the jury to decide in this case whether plaintiff was contributorily negligent in failing to so reduce his speed either before entering or upon entering the fog patch to have assured himself that he could stop his automobile within his range of vision. In this connection, we point out that the jury could consider that from northeast of Rolla to the point of collision visibility was good excetp for occasional fog patches; that the patch involved was not large or long; that plaintiff unexpectedly encountered a standing truck in the traveled portion of the highway where one would not assume its presence; that the truck was close to the end of the fog patch; that plaintiff unexpectedly encountered people standing to the left of the truck, preventing him from going around and thus avoiding a collision by means other than stopping; that plaintiff had no warning of impending danger; and that plaintiff could assume that he would not likely encounter the combination of circumstances which faced him as he emerged from the fog patch. We think there was an issue of fact presented as to plaintiff's contributory negligence which was for the jury to determine. We may not say that the only reasonable conclusion from the evidence is that plaintiff was negligent.
Defendants offered to prove by two witnesses that, after the truck had reached Oklahoma City and on the morning following the accident, an examination of the electrical system which operated the lights on the rear of the truck showed the connections, the switches, and the light bulbs in good operating condition (with the exception of one rear 'stop light' which was damaged in the collision), and that no repair or other change in condition had occurred between the time of the accident and the time of the examination. Defendants contend that it was reversible error for the court to refuse the offer.
The evidence showed that the truck was driven by defendant Sterrett to Joplin, from there to Oklahoma City by another driver, and arrived there Sunday night (the day of the accident); that it was examined the next morning by a representative of defendant company and an employee of the manufacturer of the trailer.
The issue in the case as to the lights on the rear of the truck was not whether the connections, switches and bulbs were working properly, or even whether the...
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