Jones v. Mo. Freight Transit Corp.

• Decision Date: 15 June 1931
• Docket Number: No. 17244.,17244.
• Parties: C.E. JONES, RESPONDENT, v. MISSOURI FREIGHT TRANSIT CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

40 S.W.2d 465

C.E. JONES, RESPONDENT, v. MISSOURI FREIGHT TRANSIT CORPORATION, APPELLANT.

No. 17244.

Kansas City Court of Appeals. Missouri.

June 15, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Paul R. Byrum and Ira B. McLaughlin for respondent.

Ingraham D. Hook, Carl E. Enggas and Paul C. Sprinkle for appellant.

ARNOLD, J.

This is a suit for personal injury and property damage which arose out of a collision on December 31, 1928, between a Ford roadster driven by plaintiff and a truck belonging to defendant which was standing on a public highway.

The facts shown are that defendant is a corporation organized and existing according to law and engaged as a common carrier of freight, operating upon the public highways of the State. Prior to the occurrence giving rise to this action the Hon. Harry H. Terte was appointed receiver of defendant corporation, in charge of all the property and business thereof. Permission was given by the appointing court to sue said receiver, as such, and hence the receiver is made a party defendant herein, but before the trial, the cause was dismissed as to him. Plaintiff is a resident of Kansas City, Missouri.

The accident complained of occurred one and a half to two miles north of Rich Hill in Bates county, Missouri, on highway No. 71, at which point the highway runs north and south and is paved by a cement slab eighteen feet in width, with a black marker in the center thereof, thus making two nine-foot slabs as the component divisions of the paved part of the highway. There was also constructed a dirt shoulder about six feet in width on each side of the slab, making the roadway thirty feet in width, including the slab and shoulders.

The truck belonging to defendant was of three-ton capacity with a box body thereon seven and one-half feet in width, outside measurement, the upper surface thereof being about nine or ten feet above the surface of the pavement. The end of the box body was approximately square. The truck was equipped with marker lights on each corner, both front and rear, two head lights in front and tail light in the rear. The truck was returning from Joplin, Mo., to Kansas City, being driven by one Cole who was alone. On arriving at Rich Hill, Cole first discovered trouble had developed in the motor and when he reached a point about a mile and a half or two miles north of that town, the motor stopped. On examination Cole found the trouble to be the leakage of water through the jacket into the motor, making it impossible for the motor to run. Cole testified that when he discovered this condition he climbed back into his seat, and by means of the starter, pulled the truck over to within four inches of the east edge of the slab, but not onto the shoulder, where it stopped, or was stopped, being then headed north. Cole further testified the shoulder on the east side of the slab was muddy and soft and that it was not possible to pull the truck off the slab by means of the starter.

The testimony shows the pavement at the point of the collision was slightly down grade toward the north, though there is some testimony to the effect that the pavement there was practically level. Cole testified the truck stopped of itself when the motor died and that he did not stop it; that when he left to go to a telephone, the lights were on. The testimony shows Cole was gone for quite awhile and before his return plaintiff, driving a Ford roadster, practically new, ran into the rear of the truck, injuring himself and damaging his car. The collision occurred in the afternoon during a snow storm which began about one or two o'clock P.M. The evidence shows the snow was heavy and wet, and a good strong breeze was blowing from the northwest which, at intervals, would drive the snow and thus partially obscure the view of persons on the highway; that in some places the snow would melt where it fell and in others the pavement would be covered with wet, mushy, slushy snow; at times the precipitation was very heavy and the visibility low; the atmospheric condition was variously described as foggy, misty, hazy and at times dusk-like, and dusk. Plaintiff testified he had been quail hunting and was on his way home to Kansas City, traveling north; that he had his headlights on; that due to the falling snow he was compelled to use his hand squegee on his windshield; that he was driving at a speed of twenty to twenty-five miles per hour; could see only fifty to sixty feet ahead, due to the snow; it was not sundown and not dark, but dusk; that when he first saw the truck he thought it was moving and did not realize it was standing still; that he applied his brakes; his car did not skid; he struck the rear of the truck to its left side; in approaching the truck he saw a car coming from the north; that he slowed down, turned his car to the left in an attempt to go between the truck and the oncoming car. There was no impact with the southbound car.

The testimony shows the truck was stopped — or did stop — on the east half of the slab and no part of it was on the shoulder. It thus occupied all of the east half of the slab except one and one-half feet. In this situation cars passing both north and south were required to use the west side of the slab. There is no dispute as to this situation. Some of the passing cars had their headlights burning, others had not.

Plaintiff testified that when he got within about thirty feet of the truck, he realized it was not moving, and that he would not be able to pass the truck on its left and at the same time miss the oncoming automobile from the north; that he saw a man standing on the right of the truck and a small truck in the ditch, or cornfield, on that side; that he immediately applied his brakes but was unable to avoid the collision. The center of plaintiff's radiator struck the left rear portion of the truck; that he could not judge how fast he was going at the time of the impact. Plaintiff was rendered unconscious, was assisted from the car, and when he regained consciousness he ascertained the license number of the truck and its owner. He then was taken by a passer-by to a hospital in Rich Hill and there received first aid. Later he came to his home in Kansas City by train.

The amended petition formally alleges the corporate status of defendant corporation, the appointment of defendant Terte as its receiver; that highway No. 71 is a public highway in the State of Missouri, consisting of a concrete slab eighteen feet in width, the date of the accident as of December 31, 1928, and "that prior to said time the defendants had negligently stopped one of their large freight trucks near the center of said slab and caused and permitted said truck to stand on said slab without any lights thereon and with no warning signals of any kind thereon or thereabouts; that the right wheels of said truck were three or four feet west of the east edge of said slab, and the left wheels standing about three feet west of the center line of said slab; that the sky was heavily clouded; that it was dusk and the air was filled with snow flakes and that visibility was very poor by reason of the increasing darkness and the air being filled with snow; that plaintiff did not see said truck; that the said automobile came into violent collision with the rear end of said truck, as a result of which plaintiff's automobile was wrecked and plaintiff received the following severe, permanent and lasting injuries."

Then follows a list of injuries alleged to have been sustained by plaintiff and the petition then states — "that prior to receiving said injuries he was a strong able-bodied man; that since receiving said injuries he has been and will be sick, weak, nervous, unable to work and confined to his home in bed; that his neck, shoulders, back, right side, hips, right leg and right knee have been and will be sore, weak, stiff, painful and limited in motion and utility; that by reason of the injuries to his right knee he will be a permanent cripple and will be obliged to undergo dangerous and painful operations to his said knee; that he has lost his natural rest and sleep; that he has suffered and will continue to suffer great physical pain and mental anguish; that by reason of said injuries he has become obligated for the payment of a hospital bill in the reasonable sum of $175 and has become obligated for medical and surgical attention and medicines in the reasonable sum of $250, and will in the future become obligated for medical and surgical and hospital bills and medicines in sums which plaintiff cannot state at this time; that all of the aforesaid injuries and injurious consequences are permanent, progressive and lasting."

The petition alleges plaintiff was the owner of a 1928 Ford roadster of the value of $500, and enumerates the specific elements of damage thereto. The negligence charge is as follows:

"Plaintiff states that all the aforesaid injuries and injurious consequences to plaintiff and damages to his said automobile were directly caused by the negligence of the defendants in this, to-wit: that they negligently caused and permitted said truck to remain stationary on said slab at said point on said highway in a position with the left wheels extending west of the center line of said slab and causing an obstruction to traffic on said highway and endangering plaintiff and other persons traveling said highway; that it negligently failed to remove said truck from said slab and place said truck out of the way of traffic on said highway where it would not endanger plaintiff and other persons traveling on said highway; that they negligently failed to place red flags, station a guard or take other precautions to warn plaintiff or other persons traveling said highway of the presence of said truck in the line of traffic and obstructing travel over said highway; that they negligently failed to place said truck with its right side...