Marsh v. Heerlein

• Decision Date: 11 March 1957
• Docket Number: No. 1,No. 45528,45528,1
• Citation: 299 S.W.2d 441
• Parties: Donald C. MARSH, Respondent-Plaintiff, v. Charles Lee HEERLEIN, by his Guardian ad litem, Philoema Heerlein, Appellant-Defendant
• Court: Missouri Supreme Court

Page 441

299 S.W.2d 441

Donald C. MARSH, Respondent-Plaintiff, v. Charles Lee HEERLEIN, by his Guardian ad litem, Philoema Heerlein, Appellant-Defendant.

No. 45528.

Supreme Court of Missouri, Division No. 1.

March 11, 1957.

Culver, Phillip, Kaufman & Smith, by W. J. Sherwood, W. H. Utz, Jr., St. Joseph, for appellant-defendant.

Robert I. Adelman, Kansas City, for respondent-plaintiff.

VAN OSDOL, Commissioner.

Defendant, Charles Lee Heerlein, has appealed from a judgment upon verdict for plaintiff for $10,000 for personal injuries sustained when the 1942 Plymouth 2-door sedan driven southwardly by plaintiff, Donald C. Marsh, and the KB5 International truck with grain bed mounted thereon driven northwardly by defendant collided on U. S. Highway No. 169 at a point a few hundred feet north of the junction of that highway and County Highway E in northwestern DeKalb County.

The collision occurred at approximately twelve-fifteen in the morning of June 7, 1953. On that date, Section 304.020(2) RSMo 1949, V.A.M.S., was in effect. Section 304.020 RSMo 1949 was repealed, and a new Section 304.020 was enacted in lieu thereof, which was approved June 17, 1953, and became effective ninety days after May 31, 1953. L.1953, p. 587; however, the new Section 304.020 was renumbered as 304.014-304.019, 304.021-304.026, 1953 Supp. RSMo 1949, V.A.M.S. Each of the parties, plaintiff and defendant, has the theory that the other was violating the former and now repealed Section 304.020(2), supra, in failing to drive his automobile as close to the right-hand side of the highway as practicable.

Defendant-appellant herein initially contends that plaintiff was contributorily negligent as a matter of law in violating the statute and in driving with his left arm out the car window, and that, consequently, plaintiff's case was not submissible to the jury.

There was evidence tending to show that plaintiff, driving southwardly at 50-55 miles per hour, passed over the creast of a hill and down grade with the left side of the automobile 8-12 inches to the right (west) of the center line of the 22-foot black-top pavement of Highway No. 169. When he saw defendant's truck approaching from the southward, plaintiff reduced the speed of the Plymouth to about forty-five miles per hour. The headlights of defendant's truck indicated to plaintiff that the truck was on its right (east) side of the center line of the pavement. Plaintiff did not realize there was going to be a collision until he saw the left side of the truck bed was 8-10 inches over west of the center line of the pavement. The left clearance light on the truck bed was not burning. Defendant's truck was then very close to the Plymouth. Plaintiff attempted to veer the Plymouth to the right, but the left front corner of the truck bed struck the 'front door post' of the Plymouth and continued in 'sideswiping' contact with the left side of the Plymouth as the truck passed on northwardly or northeastwardly. Preceding and at the time of the collision, no vehicles other than those of plaintiff and defendant were in the vicinity on the highway. It is conceded that plaintiff was driving with his left arm out of the car window.

There was evidence introduced by defendant tending to show that defendant was driving his truck on the right (east) side of the pavement with its left side 12-18 inches east of the center line of the pavement; and that the Plymouth was moving with its left front wheel two or three inches east of the center line.

Although it has been written that violation of Section 304.020(2), supra, is negligence per se, Melber v. Yourtee, Mo.Sup., 203 S.W.2d 727, we believe we should not say as a matter of law that in the circumstances of this case plaintiff was violating the statute. The statute did not prescribe the precise proximity to the right-hand side of the highway at which an operation of a vehicle is 'as close to the right-hand side of the highway as practicable.' In the instant case, as stated, it was the testimony of plaintiff, which in our consideration of the instant contention we accept as true, that the Plymouth was moving to the right of the center line, and, although it would seem that his automobile could have been operated farther over to the right, no other vehicle except defendant's was in the vicinity. The movement was at nighttime and plaintiff was unfamiliar with the right-hand margin of the highway. The lights of defendant's truck, according to plaintiff's testimony, indicated the truck was on its own right-hand side of the pavement; and the left clearnace light of the truck was not burning and the overhand of the truck bed was not to be seen until momentarily before it came into contact with the Plymouth. We believe we should not say as a matter of law that plaintiff was violating the statute in failing to operate his car nearer the extreme right-hand margin of the pavement, in the circumstances of this case. We think it was a jury question whether plaintiff was violating the statute in the circumstances. Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525; Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743.

With regard to the contention that plaintiff was guilty of contributory negligence as a matter of law in having his left arm out of the car window--in the absence of evidence more particularly describing the position of plaintiff's left arm, we suppose plaintiff was driving with his left elbow resting on the lower solid-panel portion of the car door and with his elbow to some extent projecting through the opened-window aperture in the upper portion of the door. Here again we note the evidence tending to show the highway was clear of traffic, except for the northward movement of defendant's truck which was according to plaintiff, apparently on its own right-hand side of the pavement; and, as stated, plaintiff's testimony is that he was operating the Plymouth on its (west) side of the pavement. Plaintiff had no reason to apprehend danger of a collision until he could see the truck bed was extending west of the center line of the pavement. This was when the vehicles were close to the point of collision. And here, again, we do not wish to say that, as a matter of law, it is negligence, in circumstances like those which plaintiff's testimony tends to establish as obtaining in this case, for one to have one's arm or elbow protruding from the window of an automobile. It is our opinion that in this case, at best, specific contributory negligence in this respect would have been for the jury. Edwards v. Woods, 342 Mo. 1097, 119 S.W.2d 359; see also the cases in the Annotation, 40 A.L.R.2d 233, at page 240. Even so, defendant neither pleaded nor tendered the submission of plaintiff's contributory negligence in having his arm protruding from the car window.

In Wininger v. Bennett, Mo.App., 104 S.W.2d 413, cited by defendant-appellant, the facts were different from those supported by plaintiff's evidence in our case. Plaintiff Wininger saw defendants' truck when it was three or four hundred yards away and saw that defendants' truck was on the wrong side of the highway. Plaintiff Wininger knew that if he continued to drive at a high rate of speed or did not stop or turn, there would be a collision between defendants' truck and plaintiff's automobile from which plaintiff's arm was protruding. It was said that while 'it may not be negligent for one to ride with his hand or arm out of the window of a car, under ordinary circumstances, when the road is clear, it is the grossest negligence to do so under circumstances as were detailed by plaintiff' in that case.

We adversely rule the contention that plaintiff was, as a matter of law, guilty of contributory negligence.

It is contended that instructions given by the trial court at plaintiff's request were prejudicially erroneous, particularly plaintiff's verdict-directing Instruction, No. 1.

In examining the instruction we observe the hypothesis that plaintiff was driving his automobile 'in a southwardly direction along the west, or right...