Moore v. Quality Dairy Co.

• Decision Date: 16 January 1968
• Docket Number: No. 32815,32815
• Citation: 425 S.W.2d 261
• Parties: Thomas E. MOORE, Plaintiff (Respondent), v. QUALITY DAIRY COMPANY, a Corporation and Elmer T. Freese, Defendants(Appellants).
• Court: Missouri Court of Appeals

Page 261

425 S.W.2d 261

Thomas E. MOORE, Plaintiff (Respondent), v. QUALITY DAIRY COMPANY, a Corporation and Elmer T. Freese,

Defendants(Appellants).

No. 32815.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1968.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 20, 1968.

Application to Transfer Denied April 8, 1968.

Gentry, Bryant & Sheppard, Robert Nagel Jones, St. Louis, for defendants-appellants.

Lashly, Neun & Watkins, Hiram W. Watkins, George W. Curran, St. Louis, for plaintiff-respondent.

MICHAEL F. GODFREY, Special Judge.

After a $15,000.00 jury award rendered against them in a personal injury and property damage action, and unavailing post trial motions, defendants have appealed to this Court assigning as error certain specifications which hereinafter will be considered. The parties here will be designated as they were in the trial court. Plaintiff susmitted his case to the jury on defendants' (1) failure to keep a careful lookout or (2) failure to signal their intention to turn. From the facts adduced in evidence taken in the light required of us upon appeal, that is in light most favorable to plaintiff because of jury's verdict (Ewen v. Spence, Mo.App., 405 S.W.2d 521), it appears that on August 14, 1964, between 8:00 A.M. and 8:45 A.M. the plaintiff was riding his Triumph motorcycle in a westwardly direction in the 800 block on Hudson Road in St. Louis County, Missouri. This two lane roadway is approximately 36 feet wide with shoulders about 2 feet wide on each side. The surface was dry; the weather cloudy. Plaintiff first saw defendants' truck ahead of him proceeding west on Hudson Road when he was about 300 feet behind it. The truck was moving at a speed of 20 miles per hour and 2 feet south of the north edge of the road. At this point plaintiff was traveling 25 or 30 miles per hour and gaining on the truck. When plaintiff reached a point 40 or 50 feet from the truck he decided to pass and pulled out to the center of the road where 'you might say an imaginary line would be' to see if the roadway was clear of oncoming traffic. He sounded his born and proceeded forward observing that the truck driver gave no signal of an intention to turn. While in the center of the passing lane and accelerating his speed, as the front wheel of his motorcycle was about even with or five feet behind the rear wheel of the truck the latter began to turn left into a private driveway. A collision resulted and at the time of impact plaintiff was traveling 30 miles per hour and defendant 10 or 15 miles per hour. Defendant Freese, the truck driver, testified that he did not see or hear the motorcycle until he started to turn into the driveway and when it was two feet south of him. In response to question by plaintiff who was still lying on the ground at the time as to why he had not signaled his intention to turn left he replied: "Because I didn't see or hear you." Defendant Freese by looking into his rearview mirrors had a view to his rear of 150 feet and testified that he commenced looking in his rearview mirror when 50 yards back from the point of impact and continued to do so until he was 20 feet back from point where he began to turn. He testified that he may have given a signal of his intention to turn left although he couldn't 'swear to it.' Plaintiff sustained injuries with resultant attendant expenses. It is admitted that Freese was the agent and servant of Quality Dairy Company at the time and place.

Since Points, I, VII, VIII, IX and XI of Defendants' Points relied on in their brief were not incorporated in their Motion for New Trial below these assignments of error are not properly before this Court for review because of waiver. Robbins v. Robbins, Mo., 328 S.W.2d 552; Marlo Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610. These assignments deal principally with admission of evidence and conflicting testimony of witness; we have carefully considered and reviewed the contentions raised therein and find that they lack merit. Yonke v. Alber's Estate, Mo.App., 351 S.W.2d 794.

In other assignments of error raised in Defendants' Points Relied On, which points are contrary to Rule 83.05(e) of the Rules of Civil Procedure, V.A.M.R. (Conser v. Atchison, T. & S.F. Ry. Co., Mo., 266 S.W.2d 587), the totality of various contentions raised seems to be directed to the question as to whether plaintiff adduced sufficient facts to present a jury issue.

In determining this question the broad general principleis that the reviewing court must consider the evidence in the light most favorable to plaintiff and must accord him the benefit of all supporting inferences fairly and reasonably deducible therefrom and must disregard defendants' evidence unless it aids plaintiff's case. Martin v. Sherrell, Mo.App., 418 S.W.2d 209; Price v. Nicholson, Mo., 340 S.W.2d 1, 95 A.L.R.2d 599; Southwestern Bell Tel. Co. v. Chester A. Dean Const. Co., Mo., 370 S.W.2d 270. In approaching this contention a cursory factual review of the evidence shows that as plaintiff's motorcycle came within passing range ofdefendants' truck, and started to pass the truck on the left hand side after the horn had been sounded, the defendant Freese without prior warning or signal turned left intending to enter a private driveway and into plaintiff's path of travel and came into collision with plaintiff and his motorcycle. Defendant Freese admitted that he did not see or hear the plaintiff until at the time of the impact or shortly before although he could have been 150 feet to his rear by use of the rearview mirror. With the facts of the case being in this posture, unquestionably a jury issue was presented, both on defendants' negligence and plaintiff's contributory negligence. In a comparably factual situation, Clark v. Quality Dairy Co., Mo., 400 S.W.2d 78, the trial court granted plaintiff a new trial after a verdict for defendant, which action of the court was upheld on appeal. Also see Dawson v. Scherff, Mo., 281 S.W.2d 825, a case of like import, on matter of submissibility.

Defendants, however, raise the question in their brief as to their duty and obligation under the law to keep a lookout to the rear, recognizing that such extends to a lookout ahead and laterally. That such a duty exists, according to the attendant facts and circumstances of the case appears clearly, and was so stated in Myers v. Searcy, Mo., 356 S.W.2d 59, at pages 62 and 63 as follows:

'* * * 'The driver contemplating a left turn must keep a vigilant lookout for approaching vehicles, and also for vehicles which may be following him.'"'

To like tenor on this point is the case of Dean v. Jackson, Mo.App., 370 S.W.2d 716.

As to defendants' duty to signal for a left turn, a dereliction of which may constitute negligence, see George v. Wheeler, Mo.App., 404 S.W.2d 426. The factual situation in that case bears close similarity to the facts here except the plaintiff there was the left turning vehicle and collided with defendant's car passing to her left. The court age pages 431 and 432 said:

'* * * It is mandatory too--not just in some, but in all instances--to signal for a left turn. Failure to do so amounts to negligence. * * *'

The court points out in the Wheeler case that while thereare no statutory provisions directly controlling left turning vehicles and their relationship with overtaking vehicles, yet from a scrutiny of the provisions of Chapter 304, Traffic Regulations, V.A.M.S. dealing with left turning vehicles, a 'left-turning automobile driver might be said to have only secondary rights.' If the duty exists, as it does on the part of left turning vehicles to yield the right of way at an intersection or private road to approaching traffic as provided in Section 304.021, Subsections 3 and 6, a fortiori, does such a duty rest on one intending to turn left into a private driveway while being overtaken by passing vehicle. Section 304.016, supra. The defendants owed plaintiff the duty both as to maintaining a lookout to their rear and as to their intention to turn left in front of plaintiff in order to comport with mandatory requirements resting on all drivers in this state to exercise the highest degree of care in the operation of their vehicles. See the recent case of Lands v. Boyster, Mo., 417 S.W.2d 942, where the court at page 945 said: "'The driver contemplating a left turn must keep a vigilant lookout * * * for vehicles which may be following him"; Reed v. Shelly, Mo.App., 378 S.W.2d 291, 296(6), '* * * a driver who intends to turn left must make a proper observation to the rear to ascertain whether another vehicle is approaching from the rear in such close proximity that a left turn cannot be made with reasonable safety,' and 'then, he must give an appropriate signal of his intention to change direction."

Defendants next seem to contend that the testimony of witness Mueller, called in plaintiff's case, binds plaintiff and that therefore the fact was irrevocably established that defendants' truck struck plaintiff's right thigh and not the motorcycle of plaintiff. It is difficult to perceive what difference this would make in any event, however suffice it to say that plaintiff, having testified that the truck struck him while on the motorcycle any variance between his testimony and that of his witness must be resolved in his favor. Myers v. Karchmer Co., Mo., 313 S.W.2d 697; Ennis v. Korb, Mo., 347 S.W.2d 671; Dodwell v. Missouri Pac. R. Co., Mo., 384 S.W.2d 643, 11 A.L.R.3d 1156.

Defendants also seem to contend that since the evidence shows that the motorcycle struck the truck, and not vice versa, the plaintiff's case fails. This is an untenable position for no other reason than the fact that the case was submitted to the jury on defendants' failure to keep a lookout or failure to signal their intention to turn and not one of failure to stop. The issue as to who hit whom in such a situation has no probative bearing on the merits of this case....