Lincoln v. Railway Exp. Agency, Inc.
| Citation | 359 S.W.2d 759 |
| Decision Date | 16 July 1962 |
| Docket Number | No. 1,No. 48894,48894,1 |
| Parties | Robert LINCOLN, Respondent, v. RAILWAY EXPRESS AGENCY, INC., and Edward L. Gruenewald, Appellants |
| Court | United States State Supreme Court of Missouri |
Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellants.
Gerard M. Dorsey, Dorsey & Aulbert and William L. Mason, Jr., St. Louis, for respondent.
HOUSER, Commissioner.
Action for damages for personal injuries arising out of a vehicular collision. Robert Lincoln recovered judgment for $20,000 against Railway Express Agency, Inc., and its truck driver Edward L. Gruenewald. Both defendants appealed.
Plaintiff was driving an eastbound taxicab in St. Louis County on St. Charles Rock Road, a six-lane concrete roadway divided by a median strip. The cab and an eastbound panel truck owned by the agency and driven by Gruenewald collided when the truck turned left in attempting to make a U-turn at the Ridgeway Avenue crossover. The three eastbound lanes will be referred to as follows: The lane nearest the median strip, Lane 1 (15 feet wide); the center lane, Lane 2 (15 feet wide), and the outer or southernmost lane, Lane 3 (10 feet wide). Walton Road, which enters St. Charles Rock Road from the south, is 320 feet west of the Ridgeway crossover. On the south side of St. Charles Rock Road there are business buildings, with a macadamized private parking area in front of them.
Plaintiff's petition charged defendants with fifteen separate assignments of negligence, including failure to keep a lookout, suddenly turning to the left and into the path of the cab in close proximity thereto without giving a signal or warning, and failure to approach the intersection for a left turn in the lane or portion of the right half of the roadway nearest the center line thereof, in violation of statute. The answer was a general denial and a plea of contributory negligence in so driving and operating the cab as to cause, allow and permit the cab to collide with the left rear end of the truck.
Plaintiff's version of the facts: From the top of the incline to the point of collision (1500 feet, clear view) plaintiff drove the cab at 20-25 m. p. h., at no time checking his speed, at all times in Lane 1, with the left wheels of the cab a foot and a half south of the south edge of the median strip. Immediately after the cab crossed Walton Road plaintiff first saw the truck, then 150-160 feet east of the cab, just beginning to move from the private parking area onto Rock Road at 3, 4 or 5 m. p. h. One half or maybe three-fourths of the truck had crossed into Lane 3. The truck emerged on an angle from the parking area northeast into Lane 3, moved east maybe 20-25 feet in Lane 3, then crossed diagonally into Lane 2, and continued east in Lane 2 for a distance of 90 or 100 feet. When the truck reached Lane 2 the cab was 15, 20 or 25 feet west of the truck. The cab continued east in Lane 1 at 20-25 m. p. h. and the truck continued east in Lane 2 at a speed up to 15-20 m. p. h. The cab at no time passed the truck, but remained 10-20 feet behind the truck. Both vehicles were traveling in the middle part of their respective lanes. The truck did not move out of Lane 2 until it reached a point 10 to 20 feet west of the west side of the Ridgeway crossover, at which point the truck 'all of a sudden' started turning left on about a 45-degree angle, headed northeast, moving from plaintiff's right to his left across plaintiff's path of travel, reaching a point 'squarely in front' of the cab. No left-turn directional signals or manual signals were given by the truck driver. The east-west distance between cab and truck at that time was variously estimated by plaintiff at from 5 to 25 feet, and the north-south distance between them was approximately two feet. When plaintiff saw the truck make this turn plaintiff immediately took his foot off the accelerator and put it on the brake pedal. He did not know whether he depressed the brake pedal. The collision occurred. 'It happened so quick.' At that time the speed of the truck was 15-20 m. p. h. and the cab's speed was 20-25 m. p. h. At time of collision the front part of the truck was in the crossover and 10-15 feet of the back part of the truck was in Lane 1. The right front fender of the cab struck the truck on the left side behind the rear wheels, halfway between the left rear fender and the rear end of the truck. The cab was 16-17 feet long. The truck was 20-22 feet in length.
Gruenewald's version of the facts: He parked the car in Lane 3 and after making a delivery to one of the business buildings drove in low gear from the south curb of Rock Road, pulled away from the curb about a foot, looked out the left door for traffic and then for the first time saw the cab coming from the west, approximately 425 feet away. He did not determine the speed of the cab. The truck was in low gear, traveling 5 m. p. h. then. At no time did Gruenewald change gears or reach a higher speed than 5 m. p. h. He proceeded to cross Lanes 3 and 2 into Lane 1, and went east in Lane 1. At no time after he saw the cab 425 feet away did Gruenewald ever again look to the west toward the cab as he was proceeding across the road to Lane 1, nor did he slow down his truck, or check his reariview mirrors to determine the location of the cab. The truck did not travel in Lane 2 at any time, except to cross over, but pulled into Lane 1 and continued straight east in Lane 1 approximately 100 to 150 feet--'a half a city block'--until it reached the crossover. As the truck proceeded east in Lane 1 the left wheels were approximately one foot away from the median strip. Gruenewald admitted he did not give any hand signal that he was going to make a U-turn. He claimed he turned on the directional lights, but did not know whether they went 'on' or were working at the time.
Plaintiff went to the jury on two separate verdict-directing instructions. No. 1 submitted a violation of Sec. 304.018, subd. 1(2), 1 applicable portions of which provide: No. 2 submitted failure to keep a lookout and sudden turning in close proximity without signal or warning. On appeal defendants attack Instruction No. 1 an twelve different grounds, No. 2 on six grounds, and contend that the verdict is self-destructive.
'The Court instructs the jury that under the law of Missouri there is imposed upon the driver of a motor vehicle who intends to turn his vehicle to the left at an intersection the duty to approach said intersection in the lane or portion of the right half of the roadway nearest the center line.
'The Court therefore further instructs you that if you find and believe from the evidence that on the occasion mentioned in the evidence, the plaintiff, Robert Lincoln, was operating an automobile eastwardly in the first traffic lane south of the median or center divider of St. Charles Rock Road at or near its intersection with Ridgeway Avenue, both open and public streets and highways in the City of St. John St. Louis County, Missouri, if you so find, and if you further find that at said time and place, defendant Railway Express Agency, Inc., acting by and through its agent and servant, defendant, Edward L. Gruenewald, were operating a motor truck eastwardly in the second traffic lane south of the median or center divider of St. Charles Rock Road and to the right or south of the traffic lane occupied by the plaintiff and when they were at or near the aforesaid intersection they did turn their said motor truck to the left from said second traffic lane and into collision with the automobile operated by the plaintiff, if you so find, and, if you further find that the defendants, Railway Express Agency, Inc., and Edward L. Gruenewald, in approaching said intersection were intending to turn to the left and did fail to drive in the first lane or portion of the right half of the roadway nearest the center line thereof, but instead drove in the second traffic lane and to the left therefrom and into collision with the automobile operated by the plaintiff, then you are instructed that the defendant, Railway Express Agency, Inc., acting by and through its agent and servant, defendant Edward L. Gruenewald, were guilty of negligence; and, if you further find and believe that as a direct and proximate result of such negligence, if you so find, the motor truck so operated by the defendants Railway Express Agency, Inc., and Edward L. Gruenewald was caused to be brought into collision with the automobile with plaintiff therein, and that as a direct and proximate result of such collision, if you so find, the plaintiff, Robert Lincoln, was caused to be injured thereby, and if you further find that the plaintiff, Robert Lincoln, was at all times mentioned in the evidence exercising the highest degree of care in the operation of his said automobile, then you are instructed that the plaintiff is entitled to recover against the defendants, and your verdict should be in favor of the plaintiff, Robert Lincoln, and against both the defendant, Railway Express Agency, Inc., and against the defendant, Edward L. Gruenewald.'
Appellants say the first paragraph of No. 1 injects error because it categorically postulates an unqualified duty and makes it negligence under any and all circumstances to fail to drive as therein required, whereas the rule of the road upon which it is based, Sec. 304.018, subd. 1(2), does not confer absolute rights or create absolute duties but creates reciprocal duties which may be qualified by circumstances; that it was error to tell the jury that the violation of law in this respect invariably and unqualifiedly constitutes actionable negligence...
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