Jones v. Central States Oil Co.

• Decision Date: 07 April 1943
• Docket Number: No. 26306.,26306.
• Citation: 170 S.W.2d 153
• Parties: JONES v. CENTRAL STATES OIL CO. et al.
• Court: Missouri Court of Appeals

170 S.W.2d 153

JONES v. CENTRAL STATES OIL CO. et al.

No. 26306.

St. Louis Court of Appeals. Missouri.

April 7, 1943.

Rehearing Denied April 23, 1943.

Appeal from Circuit Court, Shelby County; Harry J. Libby, Judge.

"Not to be reported in State Reports."

Personal injury action by Florence Jones against Central States Oil Company and another. Judgment for plaintiff, and the named defendant appeals.

Affirmed.

See, also, Mo.Sup., 164 S.W.2d 914.

Morris E. Osburn, of Shelbyville, and Howard F. Major, of Columbia, for appellant.

Lane B. Henderson, of Shelbina, and Waldo Edwards and D. L. Dempsey, both of Macon, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellant, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff on May 2, 1940, as the result of defendant's transport truck colliding with an automobile in which plaintiff was riding on Federal Highway No. 63 in Macon County, Missouri. Originally filed in the Circuit Court of Macon County, the cause was taken, on change of venue, to the Circuit Court of Shelby County where a trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $3,000. After an unavailing motion for a new trial defendant duly appealed.

The petition of plaintiff alleged that on May 2, 1940, she was riding as a guest in an automobile which was being driven in a southerly direction on the west and right-hand side of Federal Highway No. 63 near Axtell in Macon County, Missouri; that R. J. Bailey, defendant's servant, was at said time and place driving defendant's transport truck southwardly on said highway. Continuing, the petition alleged: "Plaintiff further states that at said time and place hereinbefore mentioned the defendant Central States Oil Company by its servant and employee, R. J. Bailey, carelessly and negligently drove and operated said truck and carelessly and negligently caused, allowed and permitted the same to run into, strike and into collision with the rear end of the motor vehicle in which plaintiff was riding, thereby causing plaintiff's injuries."

Prior to the trial defendant filed a motion to require plaintiff to make her petition more definite and certain in a number of respects pointed out in the motion, which the court overruled. Thereafter, defendant filed an answer containing a general denial and a plea imputing to plaintiff the negligence of Burley Jones, the driver of the Jones car, and a plea charging plaintiff with contributory negligence in that Burley Jones failed to keep a lookout for other vehicles and persons on the highway; failed to keep his automobile as close to the right-hand side of the highway as practicable; operated his automobile at a rate of speed which, under the circumstances, was high, dangerous and excessive; drove his automobile on the east or left-hand side of the center line of the highway; turned his automobile upon the east or left-hand side of the center line of the highway; and failed to turn his automobile as far as reasonably possible to the right in order to allow free passage on the left of his automobile by other vehicles traveling the highway.

The collision occurred at a place on the highway mentioned, about six miles north of Macon in Macon County, Missouri, and a little south of the place referred to as the Epperson crossing. The highway at that point was paved with concrete 19 feet in width with a dirt shoulder on each side. The highway runs north and south. To the west of the highway, and parallel to it, were the tracks of the Wabash Railway Company with a grader ditch between the west shoulder of the highway and the railway tracks. The ditch was about eight feet wide and two feet deep. The highway was divided into two equal parts by a black asphalt strip in the middle 12 inches wide.

Burley Jones testified on behalf of plaintiff that about 7 o'clock on the morning in question he was driving his Ford Model-A pick-up truck, referred to as the Jones car, from his home in Atlanta, Missouri, to Macon, Missouri, over U. S. Highway 63; that his wife (plaintiff) and Albert Nash were riding with him; that he drove on the right-hand side of the highway and after he crossed the Epperson crossing the highway was straight and level; that the pavement was dry; that he was running about 30 miles an hour; that after he passed the Epperson crossing his car was hit from the back by something, he didn't know what it was at the time; that he remembered seeing his car lying in the ditch torn up, and also saw defendant's truck on the railroad track southwest of where he was; a little later he saw his wife, on the ground; that he did not see defendant's truck approach; that the first time he saw it was after he regained consciousness when it was on the railroad track; that prior to the accident his wife's health was good and she could do necessary housework, but since then her health has not been good.

Albert Nash testified on behalf of plaintiff that he lived in Atlanta, Missouri, and on the morning mentioned he was with plaintiff and her husband in the Model-A pick-up automobile driven by Burley Jones, proceeding south on the highway; that just south of the Epperson crossing the highway is straight and parallel to the Wabash railroad track; that Mr. Jones was driving on the right side of the highway; that as they drove along their car was struck by something in the rear, at which time the Jones car was about two feet on the west side of the center line; that something threw the Jones car over into the ditch to the right and off on the shoulder; that he saw Mrs. Jones, and she was lying under the fender and part of the Jones car in the grader ditch; that the right side of the car was lying across her; that in a short time three or four men were there and they lifted the car off Mrs. Jones and got her up; that he didn't hear anything before the collision; that Mr. Jones was driving maybe 35 miles an hour; that after the wreck he saw defendant's motor transport truck over on the railroad track about 75 feet from where the Jones car was; that at the time of the collision he didn't hear any impact and did not feel anything, and the first time he saw defendant's transport truck was when it was on the railroad track; that the day after the accident he went to the scene and saw black marks on the pavement which started 50 or 60 feet north of where the truck was lying; the black marks started there and gradually got back toward the shoulder as they went south; they were on the right-hand side of the highway; there were three sets of tracks part of the time and they were spaced together; the tracks stopped where the Jones car was thrown into the ditch, and one of the tracks went in front of the Jones car six or eight feet and then went across the grader ditch on to the railroad track.

Victor Kelso testified on behalf of plaintiff that at the time of the collision he was a sergeant in the Missouri State Highway Patrol; that on the morning in question he was called to investigate the collision; that it was a clear day; that when he got to the scene he saw the Model-A pick-up truck partially on the west shoulder and partly slanting down into the grader ditch; that he would call the pick-up truck "demolished"; that to the southwest, headed in a southwest direction across the railroad track, was defendant's transport truck. Plaintiff's Exhibits A and B, photographs of the Jones car after the collision, and Exhibits C and D, photographs of defendant's transport truck after the collision, all taken by the witness, were introduced in evidence. The witness testified that he examined the front end of the oil transport truck and that the fender, and the grill and headlight, on the right front, were mashed in.

Dale Wilt of Atlanta, Missouri, Dwight Waller of Macon, Missouri, Fred Clopton of Macon, Missouri, and Merle Jones, plaintiff's son, gave testimony to the same general effect as that given by witnesses Nash and Kelso with respect to the position of defendant's truck and the position and condition of the Jones car after the accident. Some of them also corroborated in general the testimony of said witnesses concerning the tire marks on the highway.

Mont Epperson, who lived on the east side of the highway near the Epperson crossing, testified that he was at the scene of the accident about a minute and a half after it happened; that Burley Jones was lying stretched out on the shoulder of the highway behind his car and Mrs. Jones was under the car, down in the ditch; that the framework was all that was left of the Jones car which was lying on its left side west of the pavement in the grader ditch; that he helped to take the car off Mrs. Jones; that he saw burnt rubber marks on the pavement but could not describe their location; that the country round about there was level country.

The testimony of plaintiff was similar to that of her husband and Mr. Nash as to the collision. She testified that as they were driving along the highway, after they passed the Epperson crossing, she felt a terrific blow from the rear end of the truck, and the next thing she knew she was under the Jones car in the grader ditch and the car was across her left hip.

We shall refer to plaintiff's testimony, concerning her injuries, later on.

Ted Fletcher testified on behalf of defendant that he was a garage employee on the day mentioned and was on a wrecker call in connection with the accident; that when he arrived at the scene of the accident he saw defendant's transport truck on the railroad track with the right front wheel across the west rail and the left front wheel between the rails; the trailer wheels were down below the shoulder on the east side, and the tractor wheels were strung back on the right side headed in a southwest direction; that he removed the transport truck from the railroad track by...