Mayne v. May Stern Furniture Co.

Decision Date05 November 1929
Docket NumberNo. 20809.,20809.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court, Jerry Mulloy, Judge.

"Not to be officially published."

Action by Carl Mayne against the May Stern Furniture Company and another. From a judgment for the plaintiff, the defendants appeal. Affirmed.

A. E. L. Gardner, of Clayton, for appellants.

Richard F. Ralph, of Clayton, and P. S. Terry, of Festus, for respondent.


This is an action for damages sustained by plaintiff on the afternoon of November 30, 1927, in a collision between a Buick coupé driven by him and a large truck owned and operated by the defendants. The petition was drawn in two counts, the first for personal injuries, and the second for property damage. The case was tried to a jury, resulting in the return of a verdict in plaintiff's favor, and against both defendants, for $4,250 on the first count, and for $750 on the second, or for an aggregate sum of $5,000; and from the judgment rendered defendants have duly appealed.

The collision occurred on highway No. 61, approximately one mile north of the village of Mehlville, in St. Louis county. A large truck owned and operated by defendant Motor Transportation Company, and in use at the time as a delivery truck for defendant May Stern Furniture Company, was standing parked on the east side of the highway, and, while it was in this position, plaintiff's automobile was caused to crash into it from the rear.

The negligence pleaded and relied upon by plaintiff was the act of defendants in stopping and parking their truck upon the paved portion of the highway. Defendants answered jointly, denying each and every allegation contained in the petition, and setting up by way of affirmative defense that plaintiff's injuries and damage were the direct result of his contributory negligence in connection with the operation of his own automobile. The reply was in the conventional form.

The evidence disclosed that highway No. 61 is paved with a concrete slab 18 feet in width; that it had been completed for about 4 years when this accident occurred; and that at intervals along the side of the road were signs which had been placed by the state highway department, warning motorists not to stop or park upon the pavement. Plaintiff's own evidence established the fact that all four wheels of the truck were standing on the concrete, and even the witnesses for defendant admitted that at least the two left wheels were on the paved portion of the road.

Both vehicles were northwardly bound, with plaintiff's automobile some little distance in the rear of the truck. Plaintiff testified that he was driving at a speed of about 20 miles an hour; that he was within 200 or 300 feet of the truck when he first observed it in the road ahead of him; and that at that time it appeared to him that the truck was moving. While it was uncontradicted that the road was straight at the point of the collision, and that there were no obstructions of any sort between plaintiff and the truck, he testified that he was unable to discover the truck sooner because of falling snow which tended to obscure his vision and to cause him to misjudge space and distances.

After observing the truck ahead of him, plaintiff continued onward at the same speed with the intention of passing to its left, but, when he neared the truck, he discovered, not only that the truck was stopped, but also that his passage to the left was cut off by two men, who were standing on the pavement immediately to the left of the truck, and between it and a Ford touring car which was parked off of the concrete on the west side of the road. Noticing that the men were oblivious of his approach, plaintiff sounded his horn; but, concluding that he could not pass to the left because of their presence in the roadway, and being then so near the truck that he could not stop before running into it, even though he had meanwhile reduced his speed, he chose the alternative of leaving the pavement and of passing the truck to the right over the hard-surfaced roadbed which lay adjacent to the concrete.

From plaintiff's evidence the inference might be drawn that he could have accomplished his purpose with safety had it not been for the fact that the end gate or loading platform of the truck was down and protruding outwards in the rear. Plaintiff himself testified that he never saw the end gate, and that he personally did not know what occurred after he veered his course to the right, but it was shown by other testimony that, as the automobile left the pavement, the corner of the end gate scraped along the radiator, and then cut through the cab, and that as a result of the impact plaintiff was caused to sustain numerous injuries of a serious and permanent nature, the extent of which is not questioned on this appeal.

The sole point raised by defendants on this appeal involves the propriety of the lower court's refusal to instruct the jury peremptorily to return a verdict in their favor. They make no issue as to the fact of their own negligence in the manner charged and submitted, but they insist most earnestly that plaintiff should be held guilty of contributory negligence as a matter of law, because, as they view the evidence, he drove his automobile in broad daylight, head-on into the rear of the truck, which was standing on the highway in plain view.

While other cases are cited in support of their position, defendants seem to rely chiefly upon our decision in Solomon v. Duncan, 194 Mo. App. 517, 185 S. W. 1141, in which a recovery was denied the plaintiff, for the reason, among others, that his own evidence convicted him of running his automobile forward at such rate of speed as to make it impossible for him to stop after such time as he could discover the presence of the obstruction upon the street. While the conclusion reached in that case was undoubtedly proper enough upon the facts therein presented, we do not understand that the hard and fast rule there laid down was intended to or should govern and control every case where an automobilist runs into a vehicle or other obstruction in the roadway ahead of him, but rather that each case which may be based upon an analogous state of facts should be considered on its own merits, with due regard being had for such matters as the speed of the automobile, the congestion of traffic, the condition of the highway, the visibility of the atmosphere, the character of the obstruction, and all the other incidental facts and circumstances in evidence.

There can be no denial that the issue of plaintiff's contributory negligence is a close one on the facts, and that even certain portions of his own evidence tend strongly to convict him of a failure to have exercised the requisite degree of care for the preservation of his own safety. We are mindful, however, that, in determining whether the case was one calling for submission to the jury, we must accord the plaintiff the most favorable view of the evidence, whether it came from his own, or from defendants', witnesses; we must accept his evidence as true, whether...

To continue reading

Request your trial
29 cases
  • Ferrell v. Sikeston Coca-Cola Bottling Co.
    • United States
    • Missouri Court of Appeals
    • January 26, 1959
    ...Mo.App., 272 S.W.2d 297, 302(9); Cox v. Frank L. Schaab Stove & Furniture Co., Mo.App., 83 S.W.2d 211, 216(4); Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213(2); Wood v. Consolidated School Dist. No. 13, Mo.App., 7 S.W.2d 1018, 1021(6, 7); Pearce v. Boyd-Welsh Shoe Co., Mo.Ap......
  • Leek v. Dillard
    • United States
    • Missouri Court of Appeals
    • June 25, 1957
    ... ... Consult also James v. Berry, Mo.App., 301 S.W.2d 530, 533 ... 15 Consult Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213(3, 4); McCallum v. Executive Aircraft Co., ... ...
  • Payne v. Reed
    • United States
    • Missouri Supreme Court
    • March 16, 1933
    ... ... Duncan, 194 ... Mo.App. 517, 185 S.W. 1141; Ross v. Hoffman, 269 ... S.W. 679; Mayne v. May Stern Furniture Co., 21 ... S.W.2d 211; Winsor v. McKee, 22 S.W.2d 65; ... Lauson v ... ...
  • Jarboe v. Kansas City Public Service Co.
    • United States
    • Missouri Supreme Court
    • April 11, 1949
    ... ... and emancipated defendant from negligence. Mayne v. May ... Stern Furniture Co., 21 S.W.2d 211; Dillard v. East ... St. Louis Ry. Co., 150 S.W.2d ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT