Kirtley v. Irey

Decision Date13 January 1964
Docket NumberNo. 49929,No. 2,49929,2
Citation375 S.W.2d 129
PartiesLee W. KIRTLEY and Hammon Baking Company, Plaintiffs-Respondents, v. Joseph Nicholas IREY, Defendant-Appellant
CourtMissouri Supreme Court

Keyes, Bushman & Hearne, John L. Hearne, Jefferson City, for appellant.

Charles H. Howard, Jefferson City, and Wesner, Wesner & Meyer, Robert L. Wesner, Sedalia, for respondents.

BARRETT, Commissioner.

On September 16, 1958, Lee W. Kirtley, sales manager of Hammon Baking Company, was driving a 1957 Ford station wagon when it was involved in a collision with a 1950 Chevrolet automobile driven by Joseph N. Irey. Kirtley was en route to Latham from California on Route E traveling south on the blacktop highway, and Irey and his wife, who lived near Latham were traveling north on their way to Tipton and the centennial celebration of the Butterfield Overland Mail. Kirtley and Hammon Baking Company instituted this action against Irey to recover $35,000 damages for his personal injuries and $900 for injury to the station wagon. When the case was first tried on the petition of the plaintiffs and Irey's counterclaim a jury returned a verdict for damages in favor of both parties on their respectively submitted claims, whereupon the court declared a mistrial. Upon this trial of the plaintiffs' claims, without Irey's counterclaim, a jury returned a verdict in favor of the defendant. The plaintiffs' motion for a new trial was sustained on the ground that 'the court committed prejudicial error by giving, submitting and reading to the jury Instruction No. 8.' The defendant has appealed and contends that instruction 8 was not prejudicially erroneous and in any event that plaintiffs are now precluded from maintaining this action.

As a matter of fact the vehicles collided just south of a one-way bridge over the Moreau River. It is in a valley and motorists approaching 'out of the hills' from both north and south have a clear view of the bridge and of approaching traffic. The bridge is 110 feet 7 inches long and at both approaches there is an earthen ramp. Kirtley says, incidentally, that as he entered the valley at a speed of 35 miles an hour he saw another vehicle, Irey's beyond the 'flats' traveling north, 'looked like it was far enough away that I didn't (sic) have any trouble getting by the bridge.' As he drove up the ramp he reduced the speed of the station wagon to 20 or 25 miles an hour and again saw the top of Irey's automobile 'on the far side and at that time it looked like it pulled over to let me go by and then all of a sudden he stepped on the gas and came right out and there was just no place for me to go.' Two-thirds or three-fourths of the way he 'hit' his brakes but even at a reduced speed of 10 to 15 miles an hour the station wagon collided with the automobile eleven feet south of the bridge and at a point where the blacktop highway was also 'definitely one-way.'

There is virtually no conflict or dispute as to these facts, the entire controversy, as far as instruction 8 is concerned, hinges around the fact, admitted by all, that there is one point at both ends of the bridge as vehicles ascend the ramps and apporoach the bridge that automobiles from the opposite directions cannot be seen. And it is upon this single fact that Irey relies and bases his hypothesis of Kirtley's contributory negligence. In essence he contends that by reason of this one point from which vehicles traveling in opposite directions cannot be seen, Kirtley was under a duty to sound his horn and thus signal that he was proceeding across the bridge and failing to do so was guilty of contributory negligence. Since this is the crux of the case it is not necessary to consider the general rules relating to the duty to timely signal. And for the purposes of this opinion it is assumed that instruction 8 is correct abstractly. The precise problem is whether under any view of the evidence favorable to Irey and the jury's verdict there is an evidentiary basis for the instruction because if there is no testimonial support for a verdict-directing submission, here contributory negligence, the instruction is confusing and misleading and therefore prejudicially erroneous. Huger v. Doerr, (Mo.App.) 170 S.W.2d 689.

The Ireys had lived in the Latham neighborhood for over 30 years and 'Nick' Irey was quite familiar with the road and the bridge. As he 'dropped down the hill' into the 'first flat' at a speed of 20 to 25 miles an hour he came to a 'one-lane bridge' sign. That road sign was 101 paces, around 300 feet, south of the next marker, a 'load limit seven tons' sign, and Irey said that the latter sign was 37 paces, approximately 93 feet, from the end of the bridge. Thus the distance from the end of the bridge to the 'one lane' sign was about 393 feet. Irey says that he did not see a motor vehicle approaching from the north, the other side of the bridge over 500 feet away, although he and Mrs. Irey were talking as they rode across the valley, and he said, 'Oh, I don't know as she said be careful. She is always saying something like that.' But he said, 'Well, I rolled on up towards the next bridge sign, up to where the load sign was, by that time I seen this car coming, just the top of it, on the other side of the bridge. Well I applied my brakes and when I applied my brakes the back end of my car swerved around, I let off of them, straightened up and this car was still coming and I slapped on my brakes, I froze.' His Chevrolet 'slid' and that was the last he remembered except that his automobile was stopped when the vehicles collided. He had said, however, that Kirtley's station wagon was 'three or four (car) lengths on the other side of the bridge' when he 'caught the glimpse of the top of the car.' He was unable to accurately estimate the speed of Kirtley's vehicle but said, 'It was coming pretty fact the way it looked to me, that is why I was braking as hard as I was.' He was certain that Kirtley was traveling 'quite a little faster than I was' because 'it came clear on across that bridge and up the fill and across the bridge and got me on the other side and I never was on the bridge.' A neighbor, 76, who lived north of the Moreau Bridge 'a little over a quarter' (who had not driven a 'machine' for the past 12 or 14 years and before that said, 'I just drove a little, let the boys do the driving, I owned the car but they done the driving') remembered seeing Kirtley's station wagon 'pass like a streak of fire,' said 'He was going 65 or 75. If I was going to register it I would register it higher than that.' Irey testified that when he was just south of the bridge he could not see the station wagon and he said that he did not hear 'a horn sound at any time.'

In these circumstances and before reaching the ultimate problem these collaterally relevant factors should be noted: Kirtley was traveling 'quite a little faster' and reached or approached the bridge ahead of Irey. And while there may be no 'right or wrong side' to a one-way bridge, Kirtley having reached the bridge ahead of Irey, no other factors intervening, had the superior right to proceed. Annotation 47 A.L.R.2d 142, 167; 7 Am.Jur.2d, Automobiles, Sec. 205, p. 756; 8 Am.Jur.2d, Automobiles, Sec. 759, p. 316; 2 Blashfield, Cyclopedia of Automobile Law, Sec. 904, p. 75. Aside from these factors the parties have cited several cases relating to the purpose of signals and the duty to signal although, according to the appellant, they 'have found no cases involving a raised one-lane bridge that obstructs visibility.' But it is not necessary here to review the general rules, it is sufficient to say that there is no fixed, inflexible rule as to signals, the duties are reciprocal, and the duty and efficacy of signals depends on the circumstances. Miller v. Wilson, (Mo.App.) 288 S.W. 997; Gillis v. Singer, (Mo.App.) 86 S.W.2d 352; Greer v. St. Louis Public Service Co., (Mo.App.) 87 S.W.2d 240; McKinney v. Bissel, (Mo.App.) 263 S.W. 533.

In general, as to the negligence of a motorist leaving a narrow bridge, the inquiry has usually turned on speed or whether he was on the wrong side of the road. As to motorists approaching a bridge the inquiry has usually been whether they 'should have controlled their vehicles so as to give a clear passage to the other vehicle which had preempted the passageway.' 47 A.L.R.2d 1, c. 151, 154. It may be that there is no precisely similar set of circumstances but except for the fact that on the approaches to the bridge there was one point at which vehicles from the opposite direction could not be seen Bach v. Ludwig, (Mo.App) 109 S.W.2d 724, has many points of similarity and an applicable lesson. There the collision was at night as the vehicles approached a narrow culvert. In holding that there was no evidentiary basis for the guest plaintiff's instruction submitting that defendants 'failed to sound any horn, signal or warning of each...

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6 cases
  • Pierson v. Allen, 51677
    • United States
    • Missouri Supreme Court
    • November 14, 1966
    ...this case is akin to Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, and is governed, as that case was, by the rule of Kirtley v. Irey, Mo., 375 S.W.2d 129, 134: "(A) liability insurer's settlement of a claim against the insured, made without the insured's consent or against his protests ......
  • Denny v. Mathieu
    • United States
    • Missouri Supreme Court
    • March 9, 1970
    ...and in all events amounts to an adjudication on the merits which is the equivalent of a jury verdict determining liability. In Kirtley v. Irey, Mo., 375 S.W.2d 129, a collision occurred between Hammon's truck driven by Kirtley and an automobile driven by Irey. Kirtley and Hammon sued Irey f......
  • Woodstock v. Evanoff
    • United States
    • Wyoming Supreme Court
    • June 15, 1976
    ...an affirmative showing of mitigating negligence in a comparative negligence state. The Berlant court, supra, referred to Kirtley v. Irey, Mo., 375 S.W.2d 129 (1964), and said, at 480 P.2d 'The case of Kirtley v. Irey is similar to the one before us now. Headnote 6 states the holding: '(')Ac......
  • Black v. Sanders, 52230
    • United States
    • Missouri Supreme Court
    • April 10, 1967
    ...of facts.' Pierson v. Allen, Mo.Sup., 409 S.W.2d 127, 129; Portell v. Pevely Dairy Co., Mo.Sup., 388 S.W.2d 790, 792; Kirtley v. Irey, Mo.Sup., 375 S.W.2d 129, 134. In considering the effect of the settlement and dismissal of the claim of Hayden against appellant it is apparent from this re......
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