Moore v. Ready Mixed Concrete Co.
| Decision Date | 12 November 1959 |
| Docket Number | No. 47106,47106 |
| Citation | 329 S.W.2d 14 |
| Parties | Robert C. MOORE, Plaintiff-Respondent, v. READY MIXED CONCRETE COMPANY and James Calvin Wohlgemuth, Defendants- Appellants. |
| Court | Missouri Supreme Court |
John G. Madden, James E. Burke, John A. Biersmith, Jr., Kansas City, for appellants, Madden & Burke, Kansas City, of counsel.
David R. Hardy, Lane D. Bauer, Donald K. Hoel, Kansas City, S. Preston Williams, Wm. Harrison Norton, North Kansas City, for respondent, Sebree, Shook, Hardy & Ottman, Kansas City, Williams & Norton, North Kansas City, of counsel.
HOLMAN, Commissioner.
At about 11 a. m. on April 27, 1955, plaintiff received serious personal injuries when the motorcycle he was riding was struck by a concrete truck owned by the corporate defendant and being driven by defendant James Calvin Wohlgemuth. At that time plaintiff was in the performance of his duties as a sergeant with the North Kansas City Police Department, and Wohlgemuth was admittedly operating the truck in furtherin the business of his employer, Ready Mixed Concrete Company. In this action for damages plaintiff obtained a nine-juror verdict against both defendants for the sum of $200,000. In accordance with an order of the trial court plaintiff entered a remittitur in the sum of $50,000 and a final judgment was thereafter entered for $150.000. Defendants have appealed.
Defendants' first contention is that plaintiff was guilty of contributory negligence as a matter of law and hence the court erred in overruling their motion for a directed verdict at the close of all the evidence. We will state so much of the evidence relating to the question of liability as would appear necessary for a proper understanding of that issue. The casualty in question occurred at the intersection of Burlington Avenue and 16th Street in North Kansas City, Missouri. Burlington Avenue (also known as U. S. Highways 69 and 169) is a heavily traveled through street. North and southbound traffic is divided by a medial strip 25 feet wide. East of the medial strip are three lanes for northbound traffic, each 11 feet wide, and east of the east lane is a curb lane nine feet and six inches wide which is used for parking. Sixteenth Street is 36 feet wide and runs east and West. On the morning in question cars were parked on each side of that street. At that time traffic at the intersection in question was not controlled by signal lights but there was a stop sign on 16th, 29 feet east of the east curb of Burlington, which controlled westbound traffic entering the intersection. The speed limit on Burlington was 35 miles per hour. The morning in question was described by one of the witnesses as a clear, dry, pleasant spring morning.
Shortly before the casualty two large Kroger tractor-trailer trucks left the warehouse of that company which is located on the northeast corner of the intersection of 15th and Burlington. These trucks turned north on Burlington and were traveling in the east lane for northbound traffic. The driver of the second truck, Harold McGregor, testified that as he proceeded north at a speed of from 10 to 15 miles per hour his rear-vision mirror disclosed a motorcycle approaching from the rear with its red lights flashing. He stated that it was traveling near the right side of the west northbound lane; that the first Kroger truck stopped at 16th Street and was awaiting an opportunity to turn right on 16th; that the van-type trailer on that truck was eight feet wide; that the defendants' concrete truck was traveling west on 16th and stopped at or near the stop sign; that when the second Kroger truck was 125 feet south of the intersection, defendants' truck started forward from its position at the stop sign, and at that moment the motorcycle passed the truck being driven by the witness; that when the front of the concrete truck appeared at the left side of the front Kroger truck, plaintiff's motorcycle was 50 feet from the south curb line of 16th and the defendants' truck had attained a speed of ten miles per hour and did not reduce its speed prior to the collision. The witness stated further that there were no vehicles near the intersection in either the center or west northbound lanes at the time the motorcycle passed him; that the motorcycle was going somewhere between 35 and 40 miles per hour and the collision occurred as the defendants' truck entered the west lane for northbound traffic; that at the time of the collision the plaintiff 'literally flew through the air' and landed in the east lane of the highway for southbound traffic; that the truck stopped after proceeding from three to five feet beyond the collision point; that the left front headlight, left fender, and left bumper of the truck came in contact with the motorcycle.
Another witness for plaintiff, Floyd Bloom, stated that on the morning in question he was driving north on Burlington in the center lane; that as he passed 10th Street he saw plaintiff on his motorcycle at the northeast corner of that intersection; that plaintiff turned into Burlington and followed his car with two red lights flashing on the motorcycle; that his car was going from 30 to 33 miles per hour; that plaintiff passed him just as his car had crossed 15th Street, at which time the motorcycle was being operated in the center of the west northbound lane; that when defendants' truck came from behind the first Kroger truck plaintiff was 50 feet from 16th Street; that the defendants' truck was going between five and ten miles per hour and did not slow down prior to the collision which occurred north of the center of 16th and near the west edge of the west lane for northbound traffic on Burlington; that the motorcycle swerved to the left just prior to the collision and that the left front of the truck struck the right front of the motorcycle. The witness further stated that the truck stopped three or four feet west of point of impact.
Leslie Brown, a salesman for Graybar Electric, was traveling north on Burlington at the time of the casualty and was in the east lane for northbound traffic, going from 30 to 35 miles per hour. He stated that in the block south of 16th Street, plaintiff's motorcycle passed his car going approximately 30 or 35 miles per hour; 'he just passed us gradually; couldn't have been going much more than 35.' This witness did not see the actual collision because he was required to stop his car behind the Kroger trucks. On cross-examination he admitted having given a statement wherein he had said that the motorcycle was going from five to ten miles per hour faster than his car. On Redirect examination it was brought out that the witness had signed another statement on the day of the casualty in which he stated that plaintiff was going 'possibly 35' miles per hour.
Mrs. Phlet Boyd was driving her car south on Burlington in the east lane for southbound traffic and had an unobstructed view of the intersection as she approached 16th Street. She testified that she first saw the motorcycle when it was down by the Kroger warehouse; that the first Kroger truck was parked in the east lane for northbound traffic and she watched the concrete truck come into the intersection from 16th; that she could not estimate the speed of that truck but it did not slow down or stop after it entered the intersection; that just prior to the impact plaintiff tried to swerve the motorcycle to the west but the left front of the truck struck the middle of the motorcycle 'between the two wheels'; that after the impact plaintiff's body landed in the east lane for southbound traffic in front of her car, but the witness was able to slow her car and pull it partially off the road so that it did not strike plaintiff.
Plaintiff testified that on the morning of April 27 he was checking traffic at 10th and Burlington; that about 11 a. m. he started north on Burlington and turned east on 14th and at that time heard a radio call concerning a disturbance at Allen's Chevrolet, at which time he turned around and re-entered Burlington and proceeded north; that he had his red lights on but did not sound his siren except briefly at the intersection of 14th and Burlington where the red light was 'against me'; that he looked at his speedometer at 15th Street and saw that he was going 35 miles per hour and he did not thereafter increase his speed; that he approached 16th in the west northbound lane and did not turn on his siren because he was on a through street and was aware of the stop sign for westbound traffic entering from 16th Street; that as he approached 16th he looked ahead and both to the right and left and noticed that his vision was somewhat obstructed by the semitrailer in the east lane. The witness further stated that he saw the concrete truck as it came from behind the front of the truck which was stopped in the east lane of the intersection; that at that time the concrete truck was entering the center lane for northbound traffic and the motorcycle was 50 or 60 feet from the intersection; that he saw the truck 'just an instant, * * * possibly a second, maybe two,' before the collision; that he knew he didn't have time to stop, and tried to swerve toward the west; that he did not know where the collision occurred; that after the collision he became conscious briefly while on the pavement, and again while the ambulance was crossing the ASB Bridge, and thereafter did not know anything for four or five weeks except for the memory of a lot of pain.
On cross-examination plaintiff admitted that in his deposition, taken December 20, 1957, he stated that the truck was 'right on top of me' when he first saw it, and in another place that he got a glimpse of it out of the corner of his eye when it was right on him.
Plaintiff also presented the testimony of James R. Newman of the police department of Kansas City, Missouri, who qualified as an expert on stopping distances, etc. He testified that average reaction time was 3/4 of a...
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