McCauley v. Stone

• Decision Date: 02 June 1958
• Docket Number: Nos. 22725,22728,s. 22725
• Citation: 315 S.W.2d 476
• Parties: Newell Everett McCAULEY and Betty Lou McCauley, Appellants-Plaintiffs, v. C. J. STONE, Respondent-Defendant, and Roy E. Babcock, Appellant-Defendant.
• Court: Missouri Court of Appeals

Page 476

315 S.W.2d 476

Newell Everett McCAULEY and Betty Lou McCauley, Appellants-Plaintiffs, v. C. J. STONE, Respondent-Defendant, and Roy E. Babcock Appellant-Defendant.

Nos. 22725, 22728.

Kansas City Court of Appeals, Missouri.

June 2, 1958.

Muster & Eveloff, Philip Eveloff, St. Joseph, for plaintiffs McCauley.

Sprague, Wilcox & Houts, St. Joseph, for appellant Babcock.

Strop & Strop, St. Joseph, for respondent.

BROADDUS, Presiding Judge.

This action brought by plaintiffs, Newell and Betty Lou McCauley against defendants Babcock and Stone is for property damage to their building, contents and truck, and for loss of business profit and loss of use of their truck, in a total amount of $2,700. Stone cross-claimed against Babcock, charging him with negligence, for damage to his Buick station wagon, praying for $735.55. The jury returned a verdict for plaintiffs for $2,445 against defendant Babcock and for defendant Stone for $703.55 against Babcock, and judgment was so entered. Defendant Babcock and plaintiffs appealed and the appeals were later consolidated.

Plaintiffs were the owners of a service station which was located about seven miles south of St. Joseph, on U. S. Highway 71, on the southwest corner of the junction of said Highway 71 and Connett Cut Off, or U. S. 71 Spur. This combination filling station, living quarters and grocery store, and a 1948 Chevrolet truck owned by plaintiffs and parked on the property were damaged when struck on November 17, 1956, by a Buick station wagon owned and driven by defendant Stone, who was alone in the automobile at the time.

The accident occurred on a clear day. The pavement was dry. U. S. Highway 71, at the scene of the accident, ran north and south and was a pavel concrete highway, 20 or 22 feet in width, which sloped from the south to the north from the crest of a hill south of the McCauley station. There were no 'yellow' or 'no passing' lines for northbound traffic on this hill. A road known as the Willowbrook or Agency Road, or as Highway 'H' came into U. S. Highway, 71 south of the McCauley filling station from the east and formed a 'T' intersection with U. S. Highway 71. The center line of his Highway 'H' was 200 feet south of the center line of the road known as the 'Connett Cut Off', which came into Highway 71 from the west and formed a 'T' intersection with U. S. Highway 71 on the north side of the McCauley station. There was a small junction sign facing northbound traffic, which designated the junction of Highway 71 straight ahead and Highway 'H' to the right or east. This sign was on the east shoulder of 71 Highway and was 509 feet north of the crest of the hill. North of this sign, and just short of 600 feet from the crest of the hill, there was a surface drain referred to in the record as the first or south drain. Still further north and 918 feet from the crest of the hill there was a second surface drain, referred to as the north drain. This north drain was 318 feet north of the south drain and 182 feet south of the south edge of the Connett Cut Off. The south edge of the Connett Cut Off was 1100 feet north of the crest of the hill.

Concerning how the accident occurred, in view of the jury's verdict, we must accept the version of the defendant Stone and the three witnesses, Naomi Young, Clara Coale and Coleen Martin, who were passengers in a 1955 Pontiac preceding the Stone station wagon.

Stone's version supported by the three passengers in the Pontiac is as follows: Stone was driving his Buick station wagon, which was in good mechanical condition with good brakes, a clean windshield and with its steering mechanism in proper condition, north on 71 Highway following Naomi Young's Pontiac which in turn was following the Babcock pick-up truck over the crest of the hill south of the McCauley Service Station. He was then 50 to 100 feet behind the Young Pontiac which was on the east side of the highway, and was traveling at a speed of from 40 to 50 miles per hour. As the cars went north down the hill there was no obstruction in the passing lane and no southbound or other traffic except one-half mile to the north, and there was no traffic on the intersecting road from the right. Stone blew hos horn to pass and the Young Pontiac pulled to the right in its lane. Stone then pulled into the unobstructed west passing lane. Stone then saw the Babcock pick-up truck ahead of the Young car in the right lane going north 50 to 100 feet ahead of the Young car. He intended to pass both vehicles and started to pass the Young car about 100 feet south of the south drain. Stone honked his horn and passed the Young Pontiac at a normal speed of from 55 to 65 miles per hour. Babcock's pick-up truck then pulled to the left 2 or 3 feet, or a half a truck's width, over the center line, thus holding Stone back in his passing operation. Stone could have completed his passing operation and gotten back into his right lane easily before he reached the north drain if Babcock had not 'drifted' or 'sashayed' into the left lane. Stone put on his brakes and honked loudly again. When Stone honked his horn Babcock pulled back into the right lane and straightened up on his right side of the road. Stone then released his brakes and stepped on the accelerator. At that time Babcock was traveling 25 to 35 miles per hour followed by the Young car at a speed of around 40 miles per hour, but later Babcock slowed down. All the cars continued to move north. Then to Stone's surprise and without Babcock giving any mechanical or light signal or arm signal of his intention to turn left again, Babcock turned completely across in front of Stone's station wagon, closing Stone's travel or passing lane. This turn, beginning at the south of the McCauley property was gradual at first, and later was sharp or 'whipping' and occurred at the north or last drain. Babcock thus 'cut the corner' across the filling station property. When this turning occurred Stone applied his brakes hard to keep from hitting Babcock and turned to the left into the filling station driveway at the edge of the grass north of the drain. At the time, Stone could not get back into the right lane because of the Babcock truck and the Young Pontiac. He had no other choice according to Naomi Young and C. J. Stone himself. After Stone's station wagon entered the filling station driveway it went between the building and the tractor parked on the west side of the pumps, striking the building and continued on to strike the McCauley parked truck and a barrel and came to rest 40 or 50 feet behind the Babcock pick-up truck on the south side of 71 Spur or the 'Connett Cut Off'. The Babcock truck in the meantime went on past the pumps and turned west onto the 'Connett Cut Off.'

Appellant Babcock's first contention is that the court erred in failing to direct a verdict for him upon Stone's cross-claim because Stone was contributorily negligent as a matter of law. The contention is based upon Sec. 304.016 RSMo 1949, as amended in 1953, V.A.M.S., which provides that 'no vehicle shall at any time be driven to the left side of the roadway under the following conditions * * * (2) * * * when approaching within one hundred feet of or at any intersection * * *.'

In the case of Kraft v. Armentrout, Mo.App., 275 S.W.2d 402, 403, the statute under consideration on the issue of plaintiff's contributory negligence prohibited passing of a vehicle from the rear 'while the vehicle is crossing an intersecting highway.' Section 304.020(5) RSMo 1949, V.A.M.S. After reviewing the cases we reached the conclusion that the passing by a motorist of another vehicle at an intersection in violation of the statute is not contributory negligence as a matter of law under any and all circumstances.

We have set out the evidence somewhat in detail and there is no need to dwell upon it here. Why, it may be asked, didn't Stone complete his passing as he testified he could have done, and as Naomi Young testified he could have done, before he reached the north surface drain, which was 182 feet south of the intersection? Simply because Babcock's truck pulled to the left. The Stone could neither pass nor get back into the right lane. Certainly the evidence presents a question concerning whether Stone was 'passing' in the prohibited 100 feet of an interesection, or whether he was in the passing lane in said are because of Babcock's actions in not permitting him to complete his passing prior to reaching the prohibited area. In our opinion, the court did not err in failing to direct a verdict against Stone upon his cross-claim.

Appellant Babcock's next contention is that the trial court 'erred in the exclusion of evidence that defendant Stone was convicted of careless and reckless driving.' His counsel offered to prove by cross-examination...