Myers v. Buchanan
| Decision Date | 14 March 1960 |
| Docket Number | No. 47221,47221 |
| Citation | 333 S.W.2d 18 |
| Parties | W. U. MYERS, Appellant, v. Robert BUCHANAN, F. S. Hunter and W. P. Hunter, Respondents. |
| Court | Missouri Supreme Court |
Joslyn & Joslyn, L. D. Joslyn, T. B. Russell, Charleston, for appellant.
Finch, Finch & Knehans, Jack O. Knehans, Cape Girardeau, for respondents.
This is an action for personal injuries and property damage alleged to have been sustained by the plaintiff, W. U. Myers, as the result of a collision between his automobile and a truck owned by the defendants, F. S. and W. P. Hunter, co-partners, and being driven by defendant Robert Buchanan, an employee of the Hunters. The verdict was in favor of the defendants. The plaintiff's motion for a new trial was overruled and he has appealed. The prayer of plaintiff's petition is for damages in the sum of $41,163. The plaintiff on appeal assigns error in the giving of instructions on behalf of the defendants and in permitting improper jury argument.
The plaintiff submitted his case to the jury on a violation of the passing regulations prescribed by Section 304.016 RSMo 1949, V.A.M.S., Laws 1953, pp. 587, 590, which requires the driver of an overtaken vehicle to give way to the right in favor of the overtaking vehicle on audible signal. The defendants gave two instructions on contributory negligence.
The collision occurred on U. S. Highway No. 61, about 14 miles south of Sikeston, on October 8, 1956, at about 2:30 p. m. The pavement, about 24 feet wide, was dry and the day was bright. The defendant Buchanan was driving a ton and a half Chevrolet truck south on Highway 61. The stock rack bed of the truck was 12 feet long and 8 feet wide and the truck was pulling a cotton trailer, approximately 16 feet long and 6 feet wide. The truck was equipped with a rear-view mirror and mechanical signal lights. A signal light was affixed to each of the rear corners of the truck bed and on each of the two front fenders. At the place in question a driveway led from the east edge of the pavement over a culvert or drain pipe and into a field on the east side of the highway. Buchanan was returning from a trip to the cotton gin at Bell City and was in the process of making a left turn into the field road when the collision occurred. Since there is no contention that the driveway was a public road, passing at an intersection is not a question in the case.
The plaintiff, an insurance businessman, was driving his Buick automobile south on Highway 61 on his way to a business engagement in New Madrid. He had acquired the automobile new about six months previously and the brakes were in good condition. The plaintiff overtook and attempted to pass the truck-trailer combination as the defendant Buchanan undertook to turn left into the field road. The front part of the truck was off of the east edge of the pavement when it was struck near the rear portion of the driver's cab by the right front part of the Buick. At the time of the impact the left wheels of the Buick were on the shoulder, and the right wheels were about 3 feet onto the pavement.
The plaintiff testified that he had been driving at about 55 miles per hour and was traveling at that speed when he came upon and undertook to pass the truck. He estimated that Buchanan was going about 25 miles per hour. When the plaintiff first noticed the truck he was approximately 700 feet behind it. When about 250 or 300 feet from the truck the plaintiff sounded his horn and moved from the southbound into the northbound lane in order to pass; he again sounded his horn when 150 feet away. When about 100 feet from the truck the plaintiff noticed Buchanan was making a 'rather abrupt' left turn whereupon the plaintiff sounded his horn, put on his brakes, pulled to his left, and the collision occurred. The plaintiff testified that Buchanan did not hold out his hand at any time and that there were no signal lights flashing on the rear of the truck or trailer.
The defendant Buchanan testified that he had checked his signal lights on the day of the accident and knew that they were in good working order. When he was about 150 yards north of the field road he looked into his rear-view mirror and saw plaintiff's car about a mile behind him. When he was about 100 yards from the road he activated the signal light to indicate a left turn, extended his arm, and began to ease across the center line. When he was about 70 yards from the field road, he looked again and saw that the plaintiff was at least a half mile behind him. He did not hear any horn sounded, but he heard the 'squeak' of tires just before the impact. He estimated that the plaintiff was driving at least 75 or 80 miles per hour on the two occasions he saw the automobile in his rear-view mirror. Buchanan testified he was driving at a speed of 25 to 30 miles per hour.
The plaintiff's first assignment of error is that Instruction No. 6 submitting contributory negligence is prejudicially erroneous. It reads as follows:
One aspect of plaintiff's objection to this instruction is that it imposes on him an absolute duty of avoiding the collision instead of requiring the jury to find a set of facts out of which a duty to stop or swerve his automobile would arise. One of defendants' specifications of contributory negligence which the evidence tended to prove was: 'The plaintiff then and there negligently and carelessly attempted to pass the defendants' vehicle when the plaintiff saw, or by using reasonable care, could have seen the signal of the defendant Buchanan, indicating his intention to turn to his left of said highway.' In view of the manner in which the collision occurred the essential fact in connection with the submission of contributory negligence was that the driver Buchanan signaled for a left turn and that the plaintiff saw, or in the exercise of the highest degree of care, should have seen the signal and failed to heed it. Whether such a signal was given was in dispute. Buchanan testified that he gave the signal by arm and mechanically; the plaintiff denied that the left turn signal was given at any time.
As the basis of a duty to stop or swerve his automobile, the jury should have been instructed on a set of facts from which it could find that the plaintiff knew, or in the exercise of the highest degree of care, should have known that defendant Buchanan intended to make a left turn. Highfill v. Brown, Mo., 320 S.W.2d 493, 496; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866, 872. In Highfill v. Brown a similar instruction was held erroneous for failure to submit to the jury facts on which to base a finding that the plaintiff should have known that the defendant intended to turn left into a driveway. Stakelback v. Neff, Mo.App., 13 S.W.2d 575, 577, held that the law does not impose a duty upon the driver of an automobile to stop or change the course of his car merely because he sees another automobile on the highway ahead of him and that 'such duty to act would clearly not arise, unless the exercise of due care upon the part of the driver would lead him to believe that otherwise a collision would occur.'
The plaintiff was required by law to exercise the highest degree of care in the operation of his automobile, Section 304.010 RSMo 1949, V.A.M.S., but the instruction imposes on him the unqualified duty to control his automobile so as to be able at all times to stop or swerve the same 'upon the appearance of danger.'
Instruction 6 is further erroneous in failing to hypothesize facts essential to a finding of contributory negligence. The abstractions of which it consists are insufficient to furnish proper guidance to the jury as well as being incorrect statements of the law. An instruction authorizing the jury to return a verdict for a party must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based. Gaffner v. Alexander, Mo., 331 S.W.2d 622; Paisley v. Kansas City Public Service Co., 351 Mo. 468, 173 S.W.2d 33, 38; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 875, 876.
In Annin v. Jackson a judgment for the plaintiff was reversed and the cause remanded because of an instruction practically identical with the one now before us. The negligent act charged in the instruction was that the defendant 'failed and omitted to have said automobile under control so that it could be readily and reasonably stopped or swerved or the speed thereof slackened upon the appearance of danger'. In discussing this submission, this court very aptly said: We might add that the proper case for such a submission has not yet appeared. Lack or loss of control is usually the result of some antecedent negligent act or omission which is the essential fact that should be hypothesized. See also Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 83; Marshall v. St. Louis-San Francisco Ry. Co., 361 Mo. 234, 234 S.W.2d 524, 259; Dodson v. Gate City Oil Co., 338 Mo. 183, ...
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