Lansford v. Southwest Lime Co., 43721
| Citation | 266 S.W.2d 564 |
| Decision Date | 12 April 1954 |
| Docket Number | No. 43721,No. 1,43721,1 |
| Parties | LANSFORD v. SOUTHWEST LIME CO |
| Court | United States State Supreme Court of Missouri |
Roy Coyne, John R. Martin, Joplin, for appellant.
Herbert Van Fleet, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondent.
VAN OSDOL, Commissioner.
This is an appeal from a judgment upon verdict for plaintiff for $15,000 for the wrongful death of plaintiff's husband who was fatally injured when a truck he was driving collided with defendant's tractor-trailer.
Plaintiff-respondent has filed a motion to dismiss the appeal because of asserted failure to comply with 42 V.A.M.S. Rules of Supreme Court, rule 1.08(a). We have examined defendant-appellant's brief and plaintiff-respondent's motion. Two of defendant-appellant's four points are not developed in its brief by the citation of authorities and argument. They are deemed abandoned. Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015; Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 172 A.L.R. 344. The two other points and assignments of error therein stated are sufficiently developed to merit review. The motion to dismiss the appeal is overruled.
Defendant-appellant contends the testimony of plaintiff's witness, who stated his observations of the movement of defendant's tractor-trailer prior to and at the time of the collision, was unbelievable, contrary to the shown physical facts and inherently impossible, and hence afforded no substantial evidentiary basis for plaintiff's recovery. Defendant-appellant further contends that plaintiff's principal verdict-directing instruction (No. P-1) was erroneous in that the instruction 'did not properly eliminate' contributory negligence of plaintiff's decedent; and that the instruction assumed and did not require the jury to find the facts necessary to plaintiff's recovery 'from the evidence.'
The fatal collision occurred on U. S. Highway No. 71 near the east end of an overpass or bridge over the tracks of the Missouri Pacific Railroad at a point about two miles north of Jasper. Approaching from the north, the highway, paved with concrete twenty feet wide, makes a wide sweeping turn in a southeasterly direction and goes slightly upgrade as it approaches the west end of the bridge. The highway then crosses the bridge in an approximate west-east direction. The bridge is about one hundred fifty feet long. It has concrete railings and is paved with concrete twenty feet in width. Beyond the east end of the bridge, the grade declines and the highway curves back more southwardly. Metallic rails, five or six feet from the edges of the pavement, guard the approaches to the east and west ends of the bridge.
Plaintiff's husband had been driving northwardly in a truck belonging to his employer, Smith Brothers Manufacturing Company. The tractor-trailer belonging to defendant Southwest Lime Company was being driven southwardly by defendant's employee.
One Rusco, witness for plaintiff, testified he had been driving southwardly following defendant's tractor-trailer for two or three miles in approaching the place where the collision occurred. It was misting rain. The pavement was slick. The left dual wheels of the tractor-trailer were consistently some two or three feet over in the left (northbound) lane of the pavement. The tractor-trailer was moving about fifty miles per hour. As the tractor-trailer moved up the west approach and on to the bridge, its left wheels The witness next saw the Smith truck (described as a 'bobtail' truck) 'in mid-air.' The truck 'was sideways.' It was 'on its right side' of the pavement. The left wheels of defendant's tractor-trailer were still in the wrong lane.
The Smith truck came to rest headed northwardly, its front end protruding over the north guard rail at a point eighteen feet east of the east end of the bridge. It was tilted or partially overturned to its right. The rear end was resting on the right dual wheel and the front rested on the guard rail. Photographs indicate the left front of the Smith truck was badly damaged.
The witness Rusco parked his car near the west end of the bridge and walked eastwardly across the bridge to the scene of the collision. He saw plaintiff's decedent on the pavement 'beside (west of) the left rear duals (of the Smith truck).' He did not talk to defendant's driver, nor did he talk to another truck driver who had arrived there very soon after the vehicles collided. He saw no smoke or fire. He observed debris 'on the north of the center line in the north-bound lane of traffic.' He wasn't there over ten minutes at the most. He drove on to Carthage and reported the accident to the employer of plaintiff's decedent.
The driver of the tractor-trailer, witness for defendant, testified defendant's combination unit had the gross weight of thirty-seven thousand pounds. The witness said he was driving the unit on his right side of the pavement in approaching and moving over the bridge, and at a speed of about forty miles per hour. He saw the Smith truck 'clearing the curve at the bottom from the east * * * he (the Smith truck) was more or less in the middle of the road.' It was 'going around fifty.' Plaintiff's decedent was 'trying to get his truck on the other (his own right) side of the road.' The witness drove the tractor-trailer on across the bridge and pulled off on the right (south) shoulder in attempting to avoid a collision, the right wheels passing over onto the shoulder twelve, fifteen or eighteen feet east of the bridge. He said the collision occurred thirty-five or forty feet east of the bridge--'It could be a little less.' When the vehicles collided, the right side of the tractor-trailer 'was dragging along the guard rail at the south edge of the bridge.'
The tractor-trailer came to rest to some degree tilted over to its right on the outer edge of the shoulder on the south side of the pavement approximately two hundred twenty feet east of the east end of the bridge. The left end of the front bumper of the tractor-trailer was bent backwardly; the front spring and brake hose were sheared; the 'arm off the steering section' was damaged; the left healdlight and the left front fender were crumpled back or destroyed; and the left running board and the fuel tank on the left were torn off.
Defendant's driver further testified that gasoline from the fuel tank 'sprayed' the side of the trailer and ignited, and a lot of gasoline burned 'right there in the road.' (Other witnesses for defendant testified of observing fire and smoke.) The witness, and other witnesses for defendant, testified that plaintiff's decedent was lying on the shoulder of the highway east of the Smith truck.
Photographs show tracks of the right wheels of the tractor-trailer along and close to the south guard rail on the east approach; and at one point, perhaps a hundred feet east of the east end of the bridge, the tractor-trailer apparently had passed closer to and scraped or pressed against the guard rail crowding it a foot or so (southwardly) out of alignment.
Defendant-appellant argues the testimony of plaintiff's witness Rusco was unbelievable. Defendant urges the conduct of the witness in making no inquiry and in making no offer of assistance was not that of a person who had just witnessed an accident and who was among the first to arrive at the scene. Defendant further reminds us that none of defendant's witnesses testified as having seen Rusco, and that several of defendant's witnesses expressly denied having seen him there at the time where and when he said he was. Defendant points out that Rusco testified of having observed no fire or smoke, and that he had said plaintiff's decedent was lying on the concrete pavement to the left or west of the Smith truck, whereas defendant's witnesses testified plaintiff's decedent was lying on the earthen shoulder partially under the right side of the Smith truck. Defendant further calls our attention to the facts that the record shows the trial court had theretofore sustained one motion (filed by defendant) for a new trial of this case on the specified ground the verdict was against the weight of the evidence, and that the trial judge (in his statement upon overruling defendant's instant motion for a new trial) said the statute 'specifically provides that not more than one new trial may be granted on account of the...
To continue reading
Request your trial
-
Vosburg v. Smith, 7253
...Metropolitan Life Ins. Co., 228 Mo.App. 742, 72 S.W.2d 811, 815(4, 5), 816-817(9).12 In this connection, see also Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 568(5); Higgins v. Terminal R. R. Ass'n of St. Louis, 362 Mo. 264, 241 S.W.2d 380, 384(1); Bray v. St. Louis-San Francisco R......
-
Phillips v. Stockman
...and for naught held, and the cause is remanded for retrial as to both defendants. McDOWELL and RUARK, JJ., concur. 1 Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 568; Murphy v. Fred Wolferman, Inc., 347 Mo. 634, 643, 148 S.W.2d 481, 485; Young v. Missouri-Kansas-Texas R. Co., Mo., 1......
-
Moore v. Rone
...Courter v. Borough of Lincoln Park, 101 N.J.Eq. 572, 138 A. 99, 102.9 Rule 83.05, subds. (a)(3) and (a)(4); Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 565(1); Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1019(7); Warinner v. Nugent, 362 Mo. 233, 240 S.W.2d 941, 945(7......
-
Adoption of P. J. K., In re, 8065
...292 S.W.2d loc. cit. 573. Accordingly, the decree is affirmed. McDOWELL, J., concurs. RUARK, P. J., not sitting. 1 Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 565(1); Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1019(7); Moore v. Rone, Mo.App., 355 S.W.2d 398, 405(9);......