McCory v. Knowles, 34167

• Court: Missouri Court of Appeals
• Writing for the Court: WEIER; PER CURIAM; The foregoing opinion by WEIER; BRADY, C. J., and DOWD, J., and VERNON W. MEYER
• Citation: McCory v. Knowles, 478 S.W.2d 682 (Mo. App. 1972)
• Decision Date: 22 February 1972
• Docket Number: No. 34167,34167
• Parties: Leola Mae McCORY, Plaintiff-Respondent, v. Harry Wilson KNOWLES, Defendant-Appellant. . Louis District

Page 682

478 S.W.2d 682

64 A.L.R.3d 544

Leola Mae McCORY, Plaintiff-Respondent, v. Harry Wilson KNOWLES, Defendant-Appellant.

No. 34167.

Missouri Court of Appeals, St. Louis District.

Feb. 22, 1972.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 23, 1972.

Application to Transfer Denied May 8, 1972.

Buerkle, Buerkle & Lowes, Albert C. Lowes, Jackson, for defendant-appellant.

Schnapp, Graham & Reid, Maurice B. Graham, Fredericktown, for plaintiff-respondent.

WEIER, Judge.

From a judgment for plaintiff awarding her $9,100.00 for personal injuries arising out of an automobile collision, defendant appeals. Defendant first contends that plaintiff is foreclosed from any recovery because she was guilty of contributory negligence as a matter of law, and secondly, if the first contention is ruled against defendant he is entitled to a reversal and a new trial because of prejudicial error committed by the court below in the trial of the case. We overrule the first contention, but sustain the second as to the giving of an instruction, and reverse and remand.

As to contributory negligence, only the evidence with reasonable inferences therefrom most favorable to plaintiff may be considered. Contributory negligence is generally an issue to be decided by the jury. It is when the only reasonable conclusion to be drawn from that evidence establishes that plaintiff is negligent and that the negligence caused or contributed to cause his injury, that he may be held to be contributorily negligent as a matter of law. Reasonable minds may not differ as to his negligence, otherwise this question is for the jury. Ruediger v. American Bus Lines, Inc., Mo., 426 S.W.2d 4, 10(6, 7). We therefore recite those facts favoring plaintiff.

The place of collision was about five miles south of Farmington on Route 00, formerly U.S. Highway 67. The highway at this place runs north and south. The travelled portion is constructed of concrete twenty feet wide, with a shoulder on either side. There is a gradual curve which does not interfere with visibility. The road is nearly level, but, according to photographs, there is a slight dip where the defendant stopped his station wagon. The collision occurred in the early morning, while it was completely dark. No lights in adjacent areas illuminated the scene. There was no moonlight.

Mrs. McCory, on her way to work at Farmington, was travelling northwardly 55 to 60 miles per hour just before she collided with the left rear of defendant's parked station wagon. Plaintiff recalled that she had previously passed a southbound automobile. The passing car had its bright headlights on. She had flicked hers from dim to bright and then back to dim, several times, but the driver persisted in keeping his on bright. She passed this car 'almost directly in front of the Hale house.' The next thing she saw was a dark splotch on the highway, which turned out to be defendant's station wagon. She was only 55 to 60 feet away from the station wagon when she first saw it. As to the time interval between passing the southbound car and the time of impact, although her testimony is not clear, she indicated there was not time to turn the lights on her car back to bright. The station wagon had no lights on it. It was partially on the east shoulder, with 3 to 4 feet of its left rear projecting onto the highway in the northbound lane.

Defendant assumes the distance between the Hale house, identified by plaintiff as the landmark near which she had passed the oncoming car with bright lights, and the site of the collision to be 462 feet. This was the distance shown on a sketch introduced by defendant without objection. As to who drew the sketch, measured the highway, or wrote the distances thereon, the record is silent. At one point, at the request of defendant's counsel, it was agreed that both attorneys had gone out, made measurements and were present when the photographs of the scene were made and that 'those numbers all match up with what has been marked Defendant's Exhibit A.' There is no explanation, however, as to how the point of impact was fixed upon this sketch nor whether the numbers referred to in the agreement were the identifying numbers of the photographic exhibits introduced by plaintiff or were the distance measurements indicating where the photographs were taken. There was a considerable, although not measured, discrepancy between the point which plaintiff determined to be the location of the collision and the place where the highway patrolman found the debris. The patrolman placed the debris much nearer the Hale house than the mark made by Mrs. McCory on one of the exhibits. We cannot hold plaintiff's counsel to an admission as to distance upon an agreement on defendant's exhibit which was so vague and the exhibit itself so inadequately identified or explained. It can just as easily be inferred from the evidence that Mrs. McCory passed the automobile with the bright lights, not in front, but 'almost' in front of the Hale house. Thereafter, within a period of time which was not sufficient for her to turn up her lights, she saw a dark object. It was in a dip or low place in the highway. She estimated this object to be 55 feet away. Her estimate of her highest rate of speed was 60 miles per hour, or 88 feet per second. At a reaction time of three-fourths second she would have gone 66 feet before she could have responded to her sensual determination of danger and could have taken affirmative action to avoid collision. On such evidence we cannot convict her of contributory negligence.

We have been referred to many cases by counsel. Our review of those cited and those found in our own research to be near the facts of this case reveal that a motorist colliding with the rear of another vehicle on a dark highway is not necessarily guilty of contributory negligence as a matter of law, when there are other factors in addition to darkness. Such factors found in the instant case and the reported cases are: oncoming vehicles with bright lights, no tail lights on the stopped or slowly moving vehicle, no light in adjacent areas which might afford illumination, and a stopped or slowly moving vehicle on the travelled portion of the highway which an overtaking motorist could expect to be unobstructed. Illustrative cases are: Rooney v. Lloyd Metal Products Company, Mo., 458 S.W.2d 561; Haley v. Edwards, Mo., 276 S.W.2d 153; Walker v. Massey, Mo.App., 417 S.W.2d 14; Beaver v. Wilhelm, Mo.App., 321 S.W.2d 1. In Van Sickel v. F. M. Stamper Co., Mo.App., 198 S.W.2d 539, a case defendant considers nearest to the case at bar, the court considered facts which were dissimilar in several important respects. There, the undisputed evidence revealed that six or seven red lights were displayed on the rear of the stopped truck; and the highway and truck at the scene of...