Lillard v. Bradford, 6981

• Decision Date: 27 October 1951
• Docket Number: No. 6981,6981
• Citation: 243 S.W.2d 359,241 Mo.App. 538
• Parties: LILLARD v. BRADFORD.
• Court: Missouri Court of Appeals

Page 359

243 S.W.2d 359

241 Mo.App. 538

LILLARD v. BRADFORD.

No. 6981.

Springfield Court of Appeals, Missouri.

Oct. 27, 1951.

Donnelly & Donnelly and Paul J. Dillard, all of Lebanon, for appellant.

Jean Paul Bradshaw, Springfield, Fields & Low, Lebanon, for respondent.

McDOWELL, Judge.

This is a suit for personal injuries brought in the Circuit Court of Laclede County, Missouri, December 15, 1949. The action grew out of a collision between two trucks driven by the plaintiff and defendant and is based upon eight grounds of primary negligence. The answer is a general denial of the acts of negligence relied upon in plaintiff's petition and a plea of contributory negligence.

The cause was tried before a jury resulting in a verdict for plaintiff for $500. The trial court sustained defendant's motion for new trial on the ground that the court erred in giving plaintiff's Instruction numbered I. Plaintiff appealed.

Plaintiff's petition alleged that on or about the 19th day of July, 1949, he was operating at 1948 Dodge dump truck owned by Ralph Lillard, in an easterly direction over Missouri State Highway No. 32, in Laclede County; that defendant was operating a Dodge pickup truck in a northerly direction on a road which intersects said Highway No. 32 on the south side, approximately 100 yards east of Nebo; that, as plaintiff approached the intersection of said highways, defendant carelessly and negligently drove his truck from the side road into Highway No. 32 in the path of the truck driven by plaintiff, causing a collision between the two trucks. The petition pleads that the collision was a direct result of the negligence of defendant and among the acts of negligence set out in the petition plaintiff alleged defendant was negligent.

'1. In failing to exercise the highest degree of care to keep a lookout for persons and vehicles upon said State highway.

'2. In failing to exercise the highest degree of care to have said pick-up truck under such control that it could readily and reasonably be stopped upon the appearance of danger.

'3. In negligently failing to stop said pick-up truck at the intersection mentioned in evidence.

'4. In carelessly and negligently driving said pick-up truck into the intersection mentioned in evidence directly in the path of the Dodge dump truck being driven by plaintiff.'

There were other grounds of negligence alleged in the petition but not submitted to the jury by instruction.

Plaintiff's Instruction numbered I is as follows:

'The court instructs the jury that if you find and believe from the evidence that upon the occasion mentioned in evidence plaintiff was operating a Dodge dump truck in an easterly direction along and over Missouri State Highway No. 32, if you so find, and was approaching the intersection of a side road on the south of said State Highway No. 32, if you so find, and if you find from the evidence that at said time defendant was operating a Dodge pickup truck on said side road in a northerly direction toward said intersection, if you so find, and if you find from the evidence there was a collision on said State Highway No. 32 between said dump truck and said pickup truck, if you so find, and that plaintiff was injured as a result of said collision, if you so find, and if you find from the evidence that the collision, if any, and the injuries to the plaintiff, if any, were caused by the negligence of the defendant in any one of the following particulars, to-wit:

'1. In failing to exercise the highest degree of care to keep a lookout for persons and vehicles upon said State Highway;

'2. In failing to exercise the highest degree of care to have said pickup truck under such control that it could readily and reasonably be stopped upon the appearance of danger;

'3. In negligently failing to stop said pickup truck at the intersection mentioned in evidence;

'4. In carelessly and negligently driving said pickup into the intersection mentioned in evidence directly in the path of the Dodge dump truck being driven by plaintiff;

'Then you will find the issues for the plaintiff.'

The trial court sustained defendant's motion for new trial using the following language:

'Now on this day, come the parties, by their respective attorneys, and the motion of the defendant for a new trial of this cause is called up and submitted to the court and the court, having duly heard and considered said motion, sustains the same on the ground that the Court erred in giving instruction Number 1 to the Jury.'

Appellant's first contention for reversal of the trial court is that the evidence supports each of the grounds of negligence submitted in his instruction numbered I and correctly submits the case to the jury under the law and pleadings.

Appellant's second contention is that if plaintiff had proven any one of the four acts of negligence contained in plaintiff's instruction No. 1, plaintiff was entitled to recover.

Appellant's third contention is that his instruction No. 1 followed the allegations of the petition and all of the allegations of negligence were proven and that the form of this instruction has not been questioned.

Respondent, in his brief and argument, states that the third ground of negligence is the one which contained the error. Respondent states that this assignment of negligence omitted the basic predicate that respondent had reason to believe that a collision would occur unless he took precautionary measures, and permitted the jury to find him guilty of negligence upon a finding of fact which the law itself would not so denominate.

Section 510.330, R.S.Mo.1949, provides:

'* * * Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.'

The trial court in this case stated of record that he sustained the motion for new trial because of error in plaintiff's instruction numbered I. He did not point out of record what the error was in the instruction upon which he relied for granting a new trial. Therefore, there seems to be confusion between appellant and respondent as to the issues involved on this appeal.

If the court made a general finding that there was error without pointing out the grounds upon which he based his judgment, under the law, his ruling is presumed to be erroneous and the burden is upon the defendant to sustain the decision of the trial court. The defendant in this case seems to have assumed that burden by saying that the error committed in instruction No. I is contained in the third ground of negligent submitted therein, towit: that respondent negligently failed to stop his truck at the intersection mentioned in evidence. This really is the only question submitted on this appeal but, since appellant raises the question of the sufficiency of the evidence to support the allegations of negligence set out in instruction No. I and further that the instruction that the jury should find for plaintiff if any one of the grounds of negligence were found in favor of plaintiff, we will pass upon all of the questions so presented.

Plaintiff's evidence is to the effect that he was approaching an intersection of a country dirt road with Missouri State Highway No. 32, about 100 yards east of Nebo, in Laclede County, Missouri; that Highway No. 32 runs in an east and west direction and the dirt road runs north and south and intersects said Highway 32 on the south side. The evidence is that Highway 32 is a much-used black-top road, 22 feet in width, with shoulders and that the dirt road was about 22 feet wide and broadened out at the junction to about 40 feet. Plaintiff testified that about 4:30 in the afternoon he was operating his truck, coming down grade on Highway 32, approaching this intersection; that his truck was loaded with gravel; that, as he approached the intersection, he observed defendant's truck approaching the intersection from the south; that he was about 140 feet from the intersection when he first observed defendant's truck, at the time, about 20 feet south of the intersection, traveling at a speed of about 15 or 20 miles per hour upgrade towards Highway 32. Plaintiff states he pulled his truck toward the center of the road, thinking defendant would stop before entering Highway 32. He stated defendant, at no time, stopped but entered the intersection at an angle to the west and stopped his truck with the back end not over three or four feet from the south side of Highway 32, the lane in which plaintiff's truck was traveling. Plaintiff testified that he immediately put on his brakes and was about 135 feet from the intersection at the time. He stated he believed defendant's truck started to move just as his truck struck defendant's truck; that he side-swiped defendant's truck, the main force striking on the back fender and wheel thereof. He testified his brakes were in good condition; that he pulled to the right as far as possible; that at the place of collision there was very little shoulder on the south side of Highway 32 and that he could not have gone further to the right without turning his heavily loaded truck over. He stated he first hit defendant's truck just behind the door and bounced him around and straightened defendant's truck out; that the collision took place not more than ten feet from the intersection. He stated defendant was just sitting in the road and made no attempt to get out. Plaintiff testified he traveled 130 feet from the time he put on his brakes to the point of collision and, after the collision, went across the dirt road at the intersection and into a tree on the east side. He testified that at the time he first saw defendant's truck, he was traveling 40 or 45 miles per hour and that at the time of collision about 20 or 25 miles per hour.

Defendant's testimony is to the effect that defendant could have seen plaintiff's truck when he was within 15 or 20 feet of the intersection, a distance of 1000 feet; that on the south side of Highway 32...