Keaton v. Good

• Decision Date: 12 October 1961
• Docket Number: No. 7979,7979
• Citation: 350 S.W.2d 119
• Parties: LeRoy KEATON, Plaintiff-Respondent, v. Walter GOOD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 119

350 S.W.2d 119

LeRoy KEATON, Plaintiff-Respondent, v. Walter GOOD, Defendant-Appellant.

No. 7979.

Springfield Court of Appeals, Missouri.

Oct. 12, 1961.

Ralph M. Crow, Eugene E. Northern, Breuer, Northern & Crow, Rolla, for defendant-appellant.

T. A. Shockley, Waynesville, Claude T. Wood, Richland, Harold S. Hutchison, Vienna, for plaintiff-respondent.

RUARK, Judge.

This is an appeal from a plaintiff's judgment on verdict arising out of a collision between a mare which plaintiff was riding and a pickup truck being driven by the defendant. Plaintiff being the verdict holder, we attempt to sort out and relate the facts which we believe to be most favorable to his verdict.

The event occurred at a night horse show sponsored by a civic-service organization at Crocker, Missouri. The arena or track consisted of a woven-wire fenced-in area, roughly in the shape of a horseshoe, with the toe or calk to the east and the heel or open end on the west. The entry gate for the contestants lay on the extreme south end of the west side or heel of the horseshoe and the exit gate was at the extreme north end of the heel. Both these gates were 12-14 feet wide, divided in the middle so they could be swung back to permit entry and exit of the horses. The finish line was some 10-15 feet inside the north gate. Spectators' cars were parked around the horseshoe arena, although, necessarily, a space was left for the gates. The line of cars parked on the north side of the horseshoe extended on west from the heel of the horseshoe for a distance we are unable to determine.

Concerning ourselves with only the parking on the west end, a row of cars was parked at the fence between the gates. Another row of cars was parked some distance to the west, thus leaving a space between the two rows which is variously referred to as an open area for participants in the events, a lane, a path, a road, an alleyway, a runway. This lane 'curved' and the width 'varied how far the cars were pulled down there.' Different witnesses put the width as low as 20-30 feet and as high as 66 feet. Besides being used by the contestants, this lane had been used by some of the spectators in driving to their parking space on the south of the arena. Somewhere at the north end of the line of cars on the west side of the lane or somewhere in the line extending westward from the north side of the arena, there had been left a gap or open space which spectators used in driving in. But where that space was ('over here,' 'in there'), or whether it still remained open at the time of plaintiff's injury, we are unable to say. The picture exhibit shows the arena to have been lighted with flood lamps, but we have no information as to whether or not this area outside was lighted.

Plaintiff had entered his mare in the last event of the evening. Although the mare, a high-spirited animal with a sweet and gentle disposition, is the chief actress and tragic heroine in this drama which fills a transcript of 360 pages, the evidence leaves her nameless. The event in which Nameless ran was a timed event in which each contestant ran singly and against time. The 'pattern' of the race was that the horses entered the south gate from a running start, circled the horseshoe arena and (presumably) on the outside of three barrels strategically placed, ¹ near the fence, crossed the finish line at top speed, then went on out through the north exit gate. On this home stretch of the race the horse would be running mostly westward but at a slant or angle to the south. 'The fence and track before it reaches the exit gate veers to the southwest.' Once out the exit opening and past the swung-back half of the gate and the end car of the row of cars parked against the west fence, the contestant curved farther to the south in the lane or area outside. There was considerable evidence on behalf of plaintiff that the contestant 'has got to make a turn' after he comes out the gate. At frequent intervals during all the evening the loudspeaker had been blasting the admonition to 'keep the gates clear,' or 'keep the area open,' 'keep that alley or * * * that exit clear.' Plaintiff had heard these warnings throughout the evening and said, 'It was supposedly to have been guarded, but I never seen it.' He 'understood' guards were there, although the management had not told him there were; and in fact the evidence shows that guards were stationed on either side of the exit gate for the purpose of keeping them clear for the contestants.

Defendant was a spectator. When he arrived at the show he drove his pickup truck down this areaway we have been talking about and parked on the south side of the horsehoe. About the time the last race was to begin and the participants assembled outside the south gate, defendant decided to leave. He gathered his family and started to go out by the same course he had entered. Nameless was the first runner in this last race of the evening. She started some distance back west from the south gate, and another horse started running beside her 'a couple of jumps.' ² About the time Nameless reached the starting line inside the gate and the horse which had started with her was being pulled up and to the side outside the gate, the defendant came around from the south and drove so close in front of the starter horse that it was compelled to rear up over it. (Plaintiff says he did not then see the truck.) While Nameless was circling the track (she ran the course in approximately 10 seconds), the defendant in his truck worked his way through the men and horses in the areaway around the south gate and 'up to' the north or exit gate. During this period the loud-speaker was broadcasting warnings to keep the area clear, and several people shouted warnings to defendant to 'get that pickup out of the way.' Nevertheless, defendant continued. (As stated, this all happened within the space of a few seconds.) One of the guards at the south gate ran out and threw his hands up to stop the defendant. Nameless, running hard, close to the north fence, came out of the exit gate on a 'veer' or slant to the left, 'turned in the natural pattern, the way they were running that night,' and struck the right front fender of the truck 'at about a 45-degree angle' with her right shoulder. After the horse left the exit gate the crash was almost instantaneous. 'Just [snaps fingers] you could judge in a second of time. Just like that [snapping fingers].' From this collision resulted the injuries to mare and man. Plaintiff says that the truck was still moving when the collision occurred. Others said it had just stopped. Others weren't sure whether or not it was completely stopped.

One of the hotly disputed issues was the exact location of the truck at the time Nameless came running out of the gate. It was some few feet west of the line of cars parked along the west fence. Some witnesses say it was about the center of the open lane, 'right in the main runway.' One of plaintiff's witnesses said the collision occurred about 20 feet west of the gate. The pickup was 'just entering the horse lane,' 'very little south' of the south end of the gate. Two of plaintiff's witnesses said the pickup 'pulled in front of the horse' and there was not room for plaintiff to get around. As one of them put it, 'If you get to the lane and there is something on each side of you and they park that truck there and there isn't any way for your horse to get up there, how are you going to get up there?' After the collision it was necessary to move the truck before the race could be continued because it was 'in the way of' the other contestants. There was evidence that Nameless was trained for racing, not as a roping horse, and, although she was easily controlled, she could not be safely stopped from running at top speed within the approximately 35 feet which she had traveled from the finish line inside the gate to the truck.

As to the exact location of the truck in reference to the normal line of travel of the mare coming out the gate, the surrounding circumstances in reference to the course, direction, and width of the area immediately outside the gate, and the parking of cars, we have had some difficulty because plaintiff's diagram exhibit, to which a number of witnesses referred, is not before us. Moreover, over and over the testimony in reference to this diagram (and, as a matter of fact, also to defendant's diagram) is replete with such baffling remarks as (the witnesses evidently indicating) 'right in here,' 'at about this point,' 'back here,' 'from here to here,' 'there were also cars out in here,' et cetera. Furthermore, our confusion, and probably the witnesses' also, is compounded by questions of counsel such as, 'How close was the horse to the pickup truck when the collision occurred?'

Defendant's evidence was that the truck was farther south of the gate and that Nameless made quite a wide circle before colliding with the truck; that plaintiff was whipping Nameless as she came out the gate. Plaintiff's evidence was not only that plaintiff was not whipping her but that he had no whip. Defendant said he did not hear anyone shout at him. He heard the loudspeaker after he passed the south gate, did not stop when he heard it, but continued 'until I got down there to the gate.' Plaintiff's evidence was that after the collision defendant said, 'Move the pickup, take the boy to the hospital, wherever he has to go, and I will take care of everything.' Defendant denied making this statement. His wife also said he did not make such statement. She was not present all of the time but she was certain he didn't say it for the cogent reason that 'I have been married to him for fourteen years.'

Most of appellant's claims of error are in respect to plaintiff's instruction 1, which is as follows:

'The Court instructs the jury that if you believe and find from the evidence that on or about the 22nd day of August, 1958, the plaintiff had...