Johnston v. Owings
| Decision Date | 08 December 1952 |
| Docket Number | No. 21781,21781 |
| Citation | 254 S.W.2d 993 |
| Parties | JOHNSTON v. OWINGS. |
| Court | Missouri Court of Appeals |
Roland B. Miller, Jr., Platte City, Robert S. McKenzie, Jack G. Beamer and Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellant.
David R. Clevenger, Platte, City, Price Shoemaker and Elmer E. Reital, St. Joseph, for respondent.
SPERRY, Commissioner.
This is a suit for personal injuries and property damages sustained by Otis Johnston when his truck came into collision with the truck of defendant, Robert Owings. A jury trial terminated in a verdict and judgment in favor of plaintiff in the amount of $2800. Defendant appeals.
Plaintiff was driving a 1 1/2 ton truck loaded with 11 head of cattle, weighing 7700 pounds. Defendant was operating a 1 1/2 ton truck loaded with 5 tons of sacked feed. The trucks were traveling eastward, on Highway 36, which is straight and level at that point for a distance of 1/2 mile or more.
Plaintiff testified to the effect that, as he traveled eastward down a hill, some 2100 feet west of the point of collision, a Mercury automobile, driven by a Mr. Hainline, passed his truck; that the heavy load of cattle caused the truck to sway and caused the car and truck to sideswipe; that the Mercury, after it passed, slowed down; that he attempted to slow the truck but, because of its weight and the type of load, he could not slow it sufficiently to avoid running into the Mercury; that he steered to the north slab to pass the Mercury; that he gave no signal of any kind, had not sufficient time to look behind him or to give any signal; that he was watching to see what the Mercury did; that defendant's truck struck the left portion of the rear end of plaintiff's truck, demolishing the rear end, driving the platform forward, denting in the cab, and springing the frame. The cost of repairing the truck was in excess of $600, and plaintiff suffered personal injuries.
Mr. Schmidt repaired the truck and stated that the nature and amount of damage was about as related by plaintiff.
Mr. Barwold stated that he was operating a cattle truck, loaded with 11 head of steers, some distance west of plaintiff, on Highway 36; that defendant passed him at a point probably a mile west of the hill mentioned; that after he passed the top of the hill he could see defendant's truck, some 1/4 mile east; that he saw plaintiff's truck turn out to pass the Mercury, and saw defendant's truck attempt to pass plaintiff's truck; that plaintiff's truck, when struck, was headed east and slightly north on the north slab; that defendant's truck was headed east and north but about half on the north shoulder; that the right front corner of defendant's truck bed struck the left rear of plaintiff's truck bed; that a truck bed is about 8 feet wide whereas the cab is only about 5 feet wide; that the bed extends out further than does the outside of the cab; that all of plaintiff's truck was on the pavement, and traveling at a speed of about 40 miles per hour; that defendant's truck turned over on its right side, then came up on the wheels, and laid over on its left side on the north shoulder that plaintiff's truck stopped on the pavement.
Defendant testified to the effect that he first saw plaintiff's truck going up a hill ahead of him; that there was a Mercury car immediately behind it, and a Plymouth behind the Mercury; that as he approached the top of the hill, which was flat topped, he saw the Mercury pass plaintiff; that plaintiff's truck weaved to the left hand side of the road, at a point about 1000 feet from the county line; that the Mercury passed and came back to the south side of the pavement; that shortly thereafter defendant sounded the horn and passed the Plymouth car; that all vehicles were gaining speed, going down grade; that he continued on intending to pass the truck in the same operation; that plaintiff's speed was about 40 miles per hour and defendant was traveling 45 miles per hour; that as the front bumper passed the rear wheels of plaintiff's truck, his truck that it then came back onto its right side, on the south shoulder; that defendant could have avoided the collision if plaintiff had not crowded onto the shoulder; that no headlights of his truck were broken, no damage to the front end except to the bumper; that he was alongside plaintiff's truck when it turned into his truck; that, after the collision, the Hainline car was sitting on the pavement, west of the trucks; that he was trying to pass before reaching a bridge so that he would not have to 'pull' a hill at 30 miles per hour.
Mr. Hainline, driving a Mercury car, stated that he overtook plaintiff's truck at the top of the hill; that it was traveling at a speed of 40 miles per hour; that he, Hainline, passed the truck at a point about 150 feet east of the summit of the hill; that as he drew alongside the truck he heard a crash or bump and knew that something had happened; that, after proceeding about 150 feet further, he pulled over to the right hand side and began to slow down; that he 'patted' his brakes, to signal slowing down, but permitted the compression of the engine to slow the car; that he heard a crash and the two trucks slid past him; that when cattle and feed started flying he applied his brakes and stopped; that his car suffered some minor damage, from being sideswiped as it passed plaintiff's truck.
Plaintiff pleaded 10 grounds of negligence, but submitted only 2. Seven of these specifications, defendant contends, constituted allegations of specific negligence and 3, including the 2 submitted, constitute allegations of general negligence.
Plaintiff contends that all of his specifications were allegations of specific negligence. He submitted his case on the following specifications, to-wit: (a) that defendant failed to keep a reasonably careful and vigilant lookout for other vehicles on the highway and, (b) that he carelessly and negligently allowed the front end of his truck to run into and collide with the rear of plaintiff's truck. By the submission of these specifications plaintiff abandoned all others pleaded. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93.
Plaintiff's main instruction Number 1, is as follows: 'The Court instructs the jury, that if you find and believe from the evidence that at the time mentioned in evidence plaintiff, Otis Johnston, was driving a truck, in the exercise of the highest degree of care, in an easterly direction on U. S. Highway No. 36, at a point one-tenth mile east of the Buchanan-De Kalb County line in De Kalb County, Missouri, and that defendant, Robert Owings, was operating his truck in an easterly direction and to the rear of plaintiff's truck; and that defendant, Robert Owings' truck overtook the plaintiff's truck, if you so find, and that defendant, Robert Owings negligently and carelessly failed to keep and maintain a reasonably careful and vigilant lookout for other vehicles upon said highway and negligently and carelessly allowed the front of his truck to run into and collide with the rear of plaintiff's truck, if you so find, and if you further find that defendant, Robert Owings in carelessly and negligently failing to keep and maintain a reasonably careful and vigilant lookout and in negligently and carelessly allowing the front of his truck to run into and collide with the rear of plaintiff's truck, was negligent; and that as a direct result of such negligence, if any, defendant's truck was caused to collide with plaintiff's truck, if you so find, and if you further find that as a direct result of said collision plaintiff was injured and his truck damaged, if you so find, then and in that event the plaintiff is entitled to recover and your verdict must be in favor of the plaintiff and against the defendant, Robert Owings.'
Although specific negligence, it is conceded, was pleaded in several specifications, defendant contends that general negligence, only, was submitted. If that contention be upheld the judgment cannot stand. Hoeller v. St. Louis Public Service Company, Mo.App., 199 S.W.2d 7, 10.
Plaintiff does not contend that the law is otherwise than as stated above. However, he contends that specific negligence only was charged; and that specific negligence was submitted, to-wit: that defendant carelessly and negligently allowed the front of his truck to collide with the rear of plaintiff's truck. The charge of failure to keep a lookout is one of specific negligence and, if not justified under the evidence, was not error because submitted in the conjunctive. Webster v. International Shoe Company, Mo.App., 18 S.W.2d 131, 133; Spencer v. Kansas City Public Service Company, Mo.App., 250 S.W.2d 187, 191.
In a case where the facts in evidence are quite similar to those here it was held that an allegation of allowing the front end of a vehicle to collide with another vehicle is one of specific negligence. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 70. In that case the jury was authorized to find negligence if defendant's streetcar overtook plaintiff's automobile and "the operator of the streetcar negligently and carelessly allowed it to run into and collide with the rear end of the automobile".
In the case at bar, plaintiff's theory was (and there was evidence to support his theory) that defendant's truck overtook plaintiff's truck while the latter was in the act of passing the Hainline...
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