Moore v. Middlewest Freightways
| Decision Date | 12 April 1954 |
| Docket Number | No. 43448,No. 1,43448,1 |
| Citation | 266 S.W.2d 578 |
| Parties | MOORE v. MIDDLEWEST FREIGHTWAYS, Inc |
| Court | Missouri Supreme Court |
David R. Hardy, Sam B. Sebree, John S. Marley, Lane D. Bauer, Sebree, Shook, Hardy & Ottman, Kansas City, for appellant.
Lyman Field, Rogers, Field & Gentry, Robert S. Burns, Burns & Dicus, Kansas City, for respondent.
Plaintiff recovered judgment in the sum of $39,388 for personal injuries sustained in a head-on collision of his motor truck with defendant's motor truck on U. S. Highway No. 40 about four miles west of Odessa, Missouri. Defendant appealed, assigning error: (1) in the overruling of its motion for a directed verdict on the ground plaintiff was guilty of contributory negligence as a matter of law; (2) in the denial of its challenge for cause of venireman Swofford as qualified to sit as a juror in the case; (3) in the refusal of a new trial because two jurors on voir dire examination had concealed facts material to their qualifications to sit as impartial jurors; (4) prejudicially improper conduct of plaintiff's counsel throughout the trial; and (5) excessiveness of the verdict.
Determination of the first assignment requires that we consider the admitted facts, disregard all of defendant's evidence in conflict with that of plaintiff and treat as true all of plaintiff's testimony and all favorable inferences reasonably flowing therefrom.
The collision occurred at 4:00 a. m., on March 24, 1950. Plaintiff and Frederick Finkeldei, the operator of defendant's truck, were the only witnesses to it. Plaintiff had never before driven over that portion of the highway.
At the point of the collision and for more than 600 feet on each side thereof Highway 40 extends due east and west. It is paved with concrete, 21 feet in width, with a center line painted thereon. Plaintiff was driving east. His truck, a 1950 Chevrolet, was loaded with 237 bushels of corn, the total weight of truck and load being 19,000 pounds. Defendant's truck was being driven west. It was an International truck and trailer outfit, having an overall width of about 7 feet. Loaded with steel, its total weight of load and vehicle was 45,000 pounds. The collision occurred on plaintiff's right side of the center of the highway. A plat introduced in evidence by plaintiff shows the shoulder on the south side of the pavement to be 9 feet wide and level. It then slopes a distance of 8 feet to the bottom of a ditch, the south bank of which rises to a height of 9 feet.
As plaintiff, driving east at a speed of about 45 miles per hour, approached the point of collision, he went through a low, flat area, across a bridge, and started up a 4.6 per cent incline which extended for a distance of 900 feet. The collision occurred about 500 feet east of the bridge. As he crossed the bridge he saw the clearance lights on the top of the trailer of defendant's oncoming truck about 1,200 feet east of him. He could not then see the position of the truck on the highway, but he dimmed his lights. The headlights on defendant's truck first came into his view about 900 to 1,000 feet east of him. He then saw that the headlight on the left side of defendant's truck was directly over the center line of the highway and knew that the rear dual wheels of defendant's truck were over the center line on plaintiff's side of the highway. Plaintiff switched his lights to high and again dimmed them, but did not thereafter 'blink' them and did not sound his horn. He was then going up the incline at a speed of about 45 miles per hour. Defendant's truck was approaching him at a 'strong 45 miles' per hour, which rate of speed continued without reduction until the collision. Noticing that defendant's truck was gradually coming over on his side of the highway, plaintiff started to apply his brakes lightly so as to give defendant's truck more time to return to its side of the highway. As defendant's truck came closer, travelling in a straight line further onto plaintiff's side, plaintiff pushed harder on his brakes, thinking that defendant's truck would return to its own side. He looked around to see the kind of shoulder there was to his right. It appeared to be only 6 to 7 feet wide, 'not wide enough'. He thought it to be a hard, dirt shoulder, not wet or slick, the temperature was 20 to 30 degrees, but he did not know its condition. He did not know what to do because he 'did have a load on'. If he pulled off the shoulder, 'there was a bank there'. If he turned onto the shoulder, it 'might throw him out of control of his truck'; with the load he had, it would tend automatically to cut his front wheels to the right.
Plaintiff gradually reduced his speed from 45 miles per hour until he was going 28 to 32 miles per hour when the collision occurred. As he approached and reached the point of collision, his truck was at all times on the right side of the pavement, the outer wheels being 4 to 6 inches from its edge. Plaintiff could have stopped his truck within a distance of 175 feet. When he was 500, 400 or 300 feet west of the point of collision, he could have slowed his truck and driven onto the shoulder, but he did not at that time think there would be a collision and kept hoping there would not be until the trucks were within 10 to 20 feet of each other. At that time he took his foot off the brakes and started to shift gears, which would give him the added power to maneuver his truck out of its position on the highway. He did not get the gears shifted and for a moment went without his brakes applied. When the trucks were about 500 feet apart, defendant's truck was slightly more than one-third over on plaintiff's side and at the time of the collision it was two-thirds over. Plaintiff was severely injured by the force of the collision.
Defendant's operator, Finkeldei, testified, in substance: He first saw plaintiff 800 to 1,000 feet away from him. At that time each truck was on its right side of the highway, defendant's truck going about 35 miles per hour and plaintiff's about 45 miles per hour. When plaintiff was about three or four 'lengths of my outfit away from me', he drove over on defendant's side of the highway, and he, Finkeldei, then turned sharply to the left to try to avoid the collision, but could not do so.
Defendant contends that 'reasonable minds could not differ on the proposition that plaintiff failed to use the highest degree of care for his own safety when he drove straight to disaster from the time the vehicles were 900--1000 feet apart without any overt act for his own protection', and that this court should declare him guilty of contributory negligence as a matter of law. Plaintiff contends that at the least his actions under the circumstances shown in evidence made the issue of his contributory negligence a jury question.
Defendant argues that plaintiff should have known almost from the instant he first saw defendant's truck that the operator was not going to return to his own side of the highway and that as the vehicles came closer together plaintiff was unquestionably chargeable with such knowledge in ample time to have stopped his vehicle or to have turned onto the shoulder and avoided the collision or to have warned defendant's driver by horn or by 'blinking lights' so that he would return to his own side. In support of its position, defendant relies strongly upon the case of Wininger v. Bennett, Mo.App., 104 S.W.2d 413, 414, which it says is on all fours with the facts in this case. In some respects the facts are similar, but the differences are so pronounced and the facts upon which that case turned so foreign to the situation involved in the instant case, we do not think it analogous.
In that case the collision occurred at night on a gravel road. Plaintiff testified: 'That he was driving his automobile south at a speed of from 30 to 35 miles per hour. * * * that he was riding with his left arm out of his car; that when he got within three or four hundred yards of defendants' truck he saw that it was on the wrong side of the road coming straight toward him; that it continued to occupy that side as he approached it; that he did not slacken the speed of his car, but continued at the above rate until the two vehicles came together; that the left front corner of his car struck the truck behind the cab and about the center of that side; that his left arm was caught between the car and the side of the truck, was broken and bent back so that his hand broke the window of the back door of his car on that side; that no part of the truck entered his car, and that all of the damage to his car was back of the front door; that his arm was so injured that it was necessary to amputate it.'
The opinion holds that this testimony convicted plaintiff of contributory negligence as a matter of law. In so doing it necessarily proceeds upon the theory that plaintiff, in the exercise of the highest degree of care for his own safety, had no right ever to assume from the moment he first saw defendants' truck that it would return to its own side of the highway, and further assumes, without evidentiary support, that plaintiff, with reasonable safety to himself, could have turned his car to the right or the left, (it does not say which) or stopped it and avoided the collision. The opinion then shifts to another ground. We quote: ...
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