McKinney v. Robbins

• Decision Date: 01 December 1954
• Docket Number: No. 7289,7289
• Citation: 273 S.W.2d 513
• Parties: Rube McKINNEY, Plaintiff-Appellant, v. Thomas ROBBINS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 513

273 S.W.2d 513

Rube McKINNEY, Plaintiff-Appellant, v. Thomas ROBBINS, Defendant-Respondent.

No. 7289.

Springfield Court of Appeals, Missouri.

Dec. 1, 1954.

Claude Arnold, Dexter, for plaintiff-appellant.

Clarence A. Powell, Dexter, for defendant-respondent.

RUARK, Judge.

The appellant, plaintiff below, suffered adverse jury verdict and judgment thereon in the Circuit Court of Stoddard County in a suit for damages growing out of an automobile-truck sideswipe collision. The petition charged primary negligence and also that defendant was guilty under the humanitarian doctrine because of his failure to swerve to the left. The answer pleaded sole cause and also contributory negligence in that plaintiff (a) suddenly drove out from a parked position in front of defendant's truck and into a line of traffic when the defendant's truck was too close to permit such entry without danger of collision; (b) failed to give any warning of intention to pull out; and (c) failed to yield the right of way to defendant's truck, which was moving in the traffic course. At close of plaintiff's case and again at close of all the evidence defendant moved for directed verdict.

Appellant assigns as error the giving of certain of defendant's instructions and the reception of incompetent evidence on behalf of defendant. Respondent insists that plaintiff failed to make a submissible case on either primary negligence or on the humanitarian allegation.

The collision occurred at about 5 o'clock p. m. of April 25, 1951, on Sturdivant Street in the business district of Advance, Missouri, a town of six to seven hundred people. It was a bright, clear day and the sun was shining.

Sturdivant Street is one of the main streets of the town, well used by traffic and a farm-to-market highway. It runs in an east-west direction. Shortly east of the place of collision it intersects with another main street of the town. The center portion of the street was paved with a twenty-foot strip of blacktop. Along the north side of the blacktop and extending to the curb was a strip of gravel barely in excess of the width of an automobile and wide enough to permit the parking of vehicles parallel with the curb and just off the blacktop. On the south side of the blacktop was an open width of twenty to thirty feet of dirt and gravel adjacent to a park or an old cemetery. This space was not enclosed by curb and was referred to as 'sort of like a parking lot.'

Immediately prior to the collision, plaintiff's two-door Chevrolet automobile was parked parallel to the curb on the north side of the street, headed in a westerly direction. Two other cars were likewise parked, one in front of and one behind the plaintiff's car. These appear to have been the only cars parked along either side of the street near the scene at the time of the collision. The highway was clear at the time except for the defendant's truck, which was then approaching from the east (at the rear of plaintiff's car). Plaintiff testified that he and one Robinson, a friend or passenger, came from the walk on the north and got into his car, the plaintiff from the left side. He was not sure whether, in order to enter his car, he came around the back or front of the car. He stated, 'Just as I stepped on the starter to pull out I looked back; didn't see nothing.' He then pulled out at what he called just a normal speed. By his own statement he did not give any signal either by sounding his horn or by the use of arm and hand. He could not or did not estimate the distance between his car and the cars parked front and rear, but the distance between his car and the one in front was sufficient that he was able to and did drive out without backing up. As his car commenced entry upon the northern portion of the blacktop it was headed at an angle of approximately forty-five degrees and diagonally to the southwest in order to clear the car in front of him. He had, he says, reached a point on the blacktop where his front fender was approximately even with the rear fenders of the parked car ahead. Both front wheels were on the pavement and the rear portion of the car was not yet into the street. While his car was in this position, the defendant's truck, coming from the rear, struck the plaintiff's car at about the forepart of the left door and the left front fender. Plaintiff states that the defendant's truck then went off at an angle diagonally across the street and forward, where it came to rest, or was parked by the defendant, in the parking area heretofore mentioned at a point about sixty feet from the place of the collision. Plaintiff states that the first he knew of the presence of the truck was when it struck his car and that he had no idea of its speed. He could give no idea of the interval which elapsed between the time he first looked back to the east and the time of the collision. After the collision, according to plaintiff's testimony, the defendant said in substance, 'I sure hate that, because everybody said I was going to kill myself, as fast as I drive, but that's the first wreck I have had.' Also, 'The sun had me blinded; I didn't see you until I hit you.'

Mr. Robinson, the man who was in the plaintiff's car, was not called as a witness, but plaintiff did call one Westbrook, who did not see the occurrence but verified plaintiff's testimony as to surroundings and as to the fact that the day was clear and the sun shown 'directly down that street.' This witness also stated that shortly after the accident the defendant said the sum had blinded him. He attempted (without objection) to fix the 'point of impact' by the presence of some dirt and broken glass on the blacktop approximately midway between the center and the north edge of the blacktop (which would make it approximately five feet from the north edge).

According to the defendant, he was driving his truck in the proper traffic lane at a speed of about twenty miles per hour. He was facing the late afternoon sun and he said 'the reflections of the light were bothering me to a certain extent,' and that his first realization of the movement of plaintiff's car was when the front bumper of his truck was almost even with the back bumper of the plaintiff's automobile.

Considering the plaintiff's evidence and such reasonable inferences as can be drawn therefrom in a light most favorable to him, we are of the opinion that plaintiff has proved himself guilty of contributory negligence.

Section 304.020, RSMo 1949, V.A.M.S., entitled 'Rules of the road and traffic regulations', subsection (7), provides, 'In municipalities, no vehicle shall be driven * * * from the side of a highway into a line of moving vehicles, unless the highway is sufficiently free from approaching vehicles to permit such vehicle to enter the line of moving vehicles without danger of collision, and the operator or driver * * * shall give warning of his intention to proceed into the line of moving vehicles by sounding his horn * * * and by giving the signal required by the arm for turning to the right or to the left, as the case may be, and shall then proceed carefully, yielding the right of way in case of doubt to vehicles which are already in motion on the highway.'

This statute is applicable whether or not the community of Advance was an incorporated village or city, and even though there was not a steady stream of traffic along the street at the time. It determined the question of right of way between vehicles already on the highway and those...