Leek v. Dillard

• Decision Date: 25 June 1957
• Docket Number: Nos. 7561,7562,s. 7561
• Parties: Lucie LEEK, Plaintiff, v. Burtis DILLARD and Wilford Redman, Defendants.
• Court: Missouri Court of Appeals

Page 60

304 S.W.2d 60

Lucie LEEK, Plaintiff, v. Burtis DILLARD and Wilford Redman, Defendants.

Nos. 7561, 7562.

Springfield Court of Appeals, Missouri.

June 25, 1957.

McHaney & McHaney, Kennett, Briney & Welborn, Bloomfield, for plaintiff.

Blanton & Blanton, Sikeston, for defendant Burtis Dillard.

C. A. Powell, Dexter, for defendant Wilford Redman.

STONE, Judge.

While 'it was getting dark' on October 14, 1954, Mrs. Lucie Leek, plaintiff herein, was riding as a guest in the rear seat of a 1950 Ford automobile then being driven by Wilford Redman, one of the defendants herein, in an easterly direction on U. S. Highway 60 en route from Dexter to Morehouse, Missouri. As the Redman automobile approached 'the Wahite bridge' over a drainage ditch about two miles west of Morehouse, defendant Redman observed an automobile (subsequently identified as a 1951 Chevrolet owned by Burtis Dillard, the other defendant herein) standing on the bridge. For injuries alleged to have been sustained when Redman's emergency application of his brakes 'threw me (plaintiff) * * * down between the front seat and back,' plaintiff sued both Redman and Dillard. At the close of plaintiff's case, the trial court sustained defendant Dillard's motion for a directed verdict; and, at the close of the entire case, the jury returned a verdict for $3,000 against defendant Redman. We have the case upon the separate appeals (here consolidated) of plaintiff and defendant Redman.

Upon plaintiff's appeal challenging the directed verdict for defendant Dillard at the close of plaintiff's case, the evidence adduced in plaintiff's case in chief will be viewed in the light most favorable to her and she will be given the benefit of all inferences reasonably deducible therefrom. Bohle v. Sternfels, Mo., 261 S.W.2d 936, 941(3); Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 945(3). Defendant Redman, east-bound on his right-hand or south side of the two-lane pavement on Highway 60, approached the Wahite bridge at a speed estimated by plaintiff at sixty-five miles per hour. Highway 60 was perfectly straight and practically level for more than one-half mile west of a small bridge, which was 'just before you get to (i. e., just west of) the Wahite bridge.' Between the small bridge and the Wahite bridge, there was an upgrade, described by plaintiff as 'pretty steep,' for east-bound vehicles such as the Redman automobile. 'About halfway between those bridges' the Redman automobile passed a truck (hereinafter referred to as the parked truck), headed west but parked on the north shoulder of Highway 60. The headlights on the Redman automobile were burning; and, on the parked truck, there were lights 'all the way around the top of the cab' and 'the headlights were on dim.'

We have no doubt but that the triers of the facts might have drawn different inferences from plaintiff's testimony upon trial, particularly in view of the demonstrated inconsistencies between such testimony and her previous deposition. However, she was not bound conclusively by contradictory statements in her deposition; ¹ and, viewing her testimony most favorably to sustention of her claim against defendant Dillard, we think that the jury reasonably might have found that the Dillard automobile was discovered by defendant Redman when, as he passed the parked truck, the headlights on his (Redman's) automobile 'flashed on' the Dillard automobile, stopped with no lights on it about halfway between the east and west ends of the Wahite bridge, headed 'partly southwest,' and standing 'partly on the left side and partly on the right' side of the bridge, with 'most of it' on plaintiff's left side. (There was no center line on the bridge at that time.) Redman immediately 'slapped his brakes on'; and, although plaintiff and Redman agreed that, when they first saw the standing Dillard automobile, it 'looked like' there was insufficient space to pass, the Redman automobile, 'sliding sideways or skidding'--'kind of slanting,' passed on the south side of the Dillard automobile without striking either that automobile or the bridge, and came to a stop near the east end of the bridge. Plaintiff recognized defendant Dillard as one of the 'people standing in front of the car' shortly thereafter.

The Dillard automobile had been theretofore involved in a collision 'around 6 o'clock' (hereinafter referred to as the earlier collision), but the record is altogether silent as to the circumstances under which the earlier collision had occurred, as to the nature and extent of injury and damage resulting from the earlier collision, and as to what period of time had elapsed between the earlier collision and the subsequent occurrence involving the Redman automobile. However, since the time of the setting of the sun is a matter of judicial notice [Haley v. Edwards, Mo., 276 S.W.2d 153, 161(12); McGowan v. Wells, 324 Mo. 652, 658, 24 S.W.2d 633, 635(1)], we know that the earlier collision 'around 6 o'clock' and the subsequent occurrence involving the Redman automobile happened during the period "(w)hen lighted lamps are required" by Section 304.270(9), ² i. e., 'from a half-hour after sunset to a half-hour before sunrise.' See also Parsons v. Noel, Mo., 271 S.W.2d 543, 548(6,7).

The allegations of plaintiff's amended petition, including a charge that defendant Dillard negligently permitted his automobile 'to be stopped on said (Wahite) bridge and to block the traffic lanes of said highway, without having any lights burning on said vehicle,' were sufficient to invoke the statutory light regulations, although the statutes were not pleaded specifically. ³ The broad and inclusive requirement of Section 304.310 is that '(n)o person shall drive, move, park or be in custody of any vehicle * * * on any street or highway during the times when lighted lamps are required unless such vehicle * * * displays lighted lamps and illuminating devices as this chapter required'; and, the plain and unmistakable mandate of Section 304.450 is that '(w)henever a vehicle is parked or stopped upon a highway * * * during the times when lighted lamps are required, such vehicle shall be equipped with one or more lamps which shall exhibit a white light on the traffic side visible from a distance of five hundred feet to the front of such vehicle and a red light visible from a distance of five hundred feet to the rear * * *.' (All emphasis herein is ours.)

Permitting the Dillard automobile to remain at rest without lights on the traveled roadway of Highway 60, at a time when lights were required by Section 304.270(9), constituted negligence per se. ⁴ Of course, defendant Dillard might have shown legal justification or excuse for his violation of the statutory light regulations, by adducing (if he could) 'proof that an occurrence wholly without his fault made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided.' Wilson v. Shumate, Mo., 296 S.W.2d 72, 75. See Crites v. Kansas City Public Service Co., Mo., 190 S.W.2d 924, 925(3). However, generalized references to the Dillard automobile as 'the wrecked vehicle,' interjected without explanation, elaboration or elucidation, did not compel a finding that the headlights on that automobile were out of order as a result of the earlier collision, in the significant absence of any evidence to that effect and in the teeth of defendant Dillard's theory, as suggested in plaintiff's cross-examination, that one headlight on the Dillard automobile was burning as Redman approached. And, if such references to 'the wrecked wehicle' were construed as establishing that the Dillard automobile could not have been moved under its own power, proof of that fact, standing alone, would not have relieved defendant Dillard of his statutory duty to display lights. ⁵ It was incumbent upon defendant Dillard to prove legal justification or excuse, if aught he had, ⁶ for violation of the statutory light regulations; and, to us it is plain that such justification or excuse was not established, as a matter of law, by the mere showing that the Dillard automobile had been involved in the earlier collision and by passing references to 'the wrecked vehicle.'

However, defendant Dillard here insists that, even if he was negligent, plaintiff cannot recover against him for want of causal connection between such negligence and plaintiff's injury. Donnelly v. Goforth, Mo., 284 S.W.2d 462, 466(9, 10); Krelitz v. Calcaterra, Mo., 33 S.W.2d 909, 911. Causal connection need not be established by direct and positive evidence but may be shown by proof of facts and circumstances from which such connection reasonably may be inferred; ⁷ and, '(t)he facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions as common sense dictates deduced therefrom.' Anderson v. Asphalt Distributing Co., Mo., 55 S.W.2d 688, 693(7), 86 A.L.R. 1033. Our Supreme Court, en banc, has said that 'the usual test as to causal connection is whether the facts show that absent the negligent act, the injuries would not have been sustained' [Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807, 811(4); Votrain v. Illinois Terminal R. Co., Mo., 268 S.W.2d 838, 843(4)], and we read further that, '(g)enerally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury.' Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74, 78(8). See also Louisville & N. R. Co. v. Beatrice Foods Co., Mo.App., 250 S.W.2d 825, 828(5).

For a negligent act or omission to constitute a proximate cause of an injury, some injury must have been reasonably foreseeable. Dickerson v. St. Louis Public Service Co., Mo. (banc), 286 S.W.2d 820, 824. However, the question is not whether the particular injury under consideration should have been anticipated, but...