Karch v. Stewart

• Decision Date: 14 July 1958
• Docket Number: No. 46185,No. 1,46185,1
• Citation: 315 S.W.2d 131
• Parties: Ray KARCH, Respondent, v. Gordon H. STEWART and Isthmian Lines, Inc., a Corporation, Appellants
• Court: Missouri Supreme Court

Page 131

315 S.W.2d 131

Ray KARCH, Respondent, v. Gordon H. STEWART and Isthmian Lines, Inc., a Corporation, Appellants.

No. 46185.

Supreme Court of Missouri, Division No. 1.

July 14, 1958.

L. A. Robertson, Ernest E. Baker, Alexander & Robertson, St. Louis, for appellants.

Gregg Wm. Keegan, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Defendants have appealed from a judgment of $8,500 rendered in favor of plaintiff, Ray Karch, in the Circuit Court of the City of St. Louis for personal injuries sustained when a tractor-trailer outfit operated by plaintiff collided with a Ford automobile driven by defendant Stewart in the course of the latter's employment by defendant Isthmian Lines, Inc., in the State of Illinois. It is defendants' contention that (1) no submissible case of defendants' negligence was made 'on any theory of negligence not abandoned by plaintiff' and that the judgment should be reversed; (2) plaintiff failed to prove his freedom from contributory negligence, as required by the law of Illinois; (3) error in the submission instruction given in behalf of plaintiff; (4) error in the refusal of a sole cause instruction proffered by defendants; (5) error in the admission of evidence; (6) prejudicial limitation of defendant's argument to the jury; and (7) excessiveness of the verdict.

The collision occurred after dark, at about 9:30 p. m., on July 17, 1956, near but within the limits of the City of Edwardsville. Plaintiff, a truck driver in the employ of Voss Truck Lines, was operating one of the latter's tractor-trailers, hereinafter referred to as 'plaintiff's truck', generally northward from the City of St. Louis to Chicago on Highway 66. Defendant Stewart, a solicitor for defendant Isthmian Lines, Inc. (a steamship line engaged in international commerce and having an office in the City of St. Louis), was operating a four-door sedan furnished him by his employer, hereinafter referred to as 'defendants' car', southward from Decatur, Illinois, to St. Louis on said highway. At and on both sides of the point of collision, Highway 66 consists of a 16-foot wide, two-lane 'black-top' roadway, with loose gravel shoulders on both sides of the pavement, all of which, at the time in question, were dry.

As plaintiff, proceeding generally northward, approached the point of collision, he was 100 to 150 feet to the rear of a northbound tractor-trailer truck operated by a third party. The two trucks, each proceeding at a rate of 20 to 25 miles per hour on its right side of the highway, rounded a slightly descending curve, passed under a railroad overpass, thence along a straight stretch of roadway for a distance of from 500 to 800 feet and approached the curve upon which the collision occurred. As the leading truck entered that curve, followed by plaintiff's truck, defendants' southbound car, after meeting and passing the first truck, skidded across the highway immediately in front of plaintiff's truck, resulting in the front end of plaintiff's truck striking the right side of defendants' car. The force of the collision crushed the front end of plaintiff's truck and the right side of defendants' car and both plaintiff and defendant Stewart were injured.

Plaintiff called defendant Stewart to the witnesses stand as his first witness. Stewart testified: On the night of the collision, as he traveled southward, at 25 to 30 miles per hour, on his right side of the highway, with his car lights on 'low', he came to a curve in the highway, at which time he saw a truck (the one preceding plaintiff) approaching him from the south. The curve bore to Stewart's left, so that the approaching truck was on the inside and defendants' car was on the outside of the curve. As the leading truck came into the curve, its lights, which were and remained on 'high', suddenly shone directly into Stewart's face, completely blinding him, so that he could no longer see the course of the curve. Before the truck passed him, he 'felt' the right front wheel of his car go off the pavement onto the shoulder and saw that he was about to strike a guardrail maintained upon the right shoulder at that point for the protection of southbound traffic. He turned his steering wheel sharply to the left to get back on the pavement and applied his brakes. 'The rear end slew on the gravel and hit the right rear end or bumper hit the guardrail and that's what threw me across the road.' From the time his car struck the guardrail, it was completely out of control. As his car skidded across the highway in an arc, he saw 'just an instant before the collision' the lights of the vehicle (plaintiff's truck) which struck him; and that was his last memory of the event. After the collision, he 'came to' and saw the red lights shining on the dash of his car, indicating that the ignition was on and that the motor was not running, and reached over and turned off the ignition. His lights still were on 'low'. He did not 'steer' his car into the path of plaintiff's tractor-trailer, but was trying to get it under control.

Plaintiff testified: Both the tractor and trailer lights on his truck and the truck preceding him were on. His tractor lights were on 'low'; he did not know the position of the front lights on the truck in front of him. After passing under the railroad overpass and as he was proceeding on the straightaway toward the curve, he saw defendants' oncoming car strike the guardrail, which was 7 or 8 feet to the right of Stewart's side of the paved portion of the highway. Defendants' car immediately skidded over to plaintiff's side of the road into the path of his truck. When plaintiff saw defendants' car strike the guardrail and start across the highway, plaintiff tried to get off the highway and onto the shoulder to his right, but there was not sufficient time for him to do more than to get the tractor partially upon the shoulder. As plaintiff drove under the railroad, he was traveling at 15 miles per hour and as he drove along the straightaway at 20 to 25 miles per hour. Plaintiff did not see defendants' car until it had passed the preceding truck and did not know whether he could have seen it sooner, as he was not watching that far down the road. When plaintiff first saw defendants' car, it was not much further 'than from here to the benches over there'--which distance, defendants' counsel says, was approximately 30 feet. Plaintiff's estimate of the speed of defendants' car, based upon the brief observation he had of it, was 35 miles per hour.

Although plaintiff's petition alleged specific primary negligence on the part of defendant Stewart in (1) failing to keep a proper lookout, (2) failing to keep his automobile under proper control, (3) operation of it 'so as to cross over the center line of said highway', and (4) at an excessive rate of speed, he elected to go to the jury upon the sole submission set forth in Instruction No. 1. The negligence submitted in that instruction was: '* * * that the defendants herein did drive and propel the said Ford automobile * * * across and onto the wrong side of the road and directly into the path of the vehicle being operated by plaintiff, Ray Karch, and * * * that * * * as a result of defendant's negligence in operating the said automobile into, across and onto the wrong side of the highway a collision resulted and * * * that * * * plaintiff was in the exercise of reasonable care for his own safety and * * * that plaintiff as a result of said collision was injured, * * * then * * * your verdict should be in favor of the plaintiff * * * and against the defendants * * *.'

Hence, it is clear that at the election of plaintiff neither the alleged failure on the part of defendant Stewart to keep a proper lookout, nor his alleged failure to keep the automobile under control, nor his alleged excessive speed was submitted to the jury. That being the situation, we are primarily concerned, in the consideration of defendants' contention that no submissible case of defendants' negligence was made, with the question of whether the evidence warranted submission of defendants' negligence in that, as stated in the instruction, Stewart 'did drive and propel the said Ford automobile * * * across and onto the wrong side of the road and directly into the path' of plaintiff's truck.

Defendants say that, construed in the light most favorable to plaintiff, the evidence shows at most that the blinding lights of the leading truck caused Stewart to drive defendants' car off the pavement and to strike the guardrail, forcing the car out of Stewart's control, so that he could no longer purposefully steer it across the highway in front of plaintiff's truck; and that such evidence does not warrant a finding that defendant Stewart 'did drive and propel the said Ford automobile * * * across and onto the wrong side of the road.'

The evidence in behalf of both parties is that defendants' car skidded across the highway and into the path of plaintiff's truck. Now, it is true, as defendants contend, that the mere skidding of an automobile, in and of itself, does not constitute negligence. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876. But that rule applies only where the evidence shows that the skidding is the sole factual cause of the occurrence. Rodefeld v. St. Louis Public Service Co., Mo., 275 S.W.2d 256, 258; Statler v. St. Louis Public Service Co., Mo.App., 300 S.W.2d 831, 834. The admitted fact, as testified by plaintiff as well as by Stewart, that defendants' car skidded across the highway, in and of itself, indicates that the course of the car, as it skidded across the highway, was not under the control of defendant Stewart. Hence, the basic issue is, not whether Stewart negligently drove and propelled the car across the highway, but whether he negligently operated it so as to cause the skid which carried it across the highway and into the path of plaintiff's truck.

In the instant case, there is no evidence as to the cause of...