Orr v. Williams

• Decision Date: 06 April 1964
• Docket Number: No. 23933,23933
• Citation: 379 S.W.2d 181
• Parties: Hollis ORR, Plaintiff-Respondent, v. Everett Eugene WILLIAMS and L. E. Beckman, d/b/a Beckman Chevrolet Company, Centralia, Missouri, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 181

379 S.W.2d 181

Hollis ORR, Plaintiff-Respondent, v. Everett Eugene WILLIAMS and L. E. Beckman, d/b/a Beckman

Chevrolet Company, Centralia, Missouri,

Defendants-Appellants.

No. 23933.

Kansas City Court of Appeals, Missouri.

April 6, 1964.

Warren D. Welliver and J. Turner Jones, Welliver, Porter & Cleaveland, Columbia, for defendants-appellants.

Spencer, Hines & Petri, Columbia, for L. E. Beckman, defendant-appellant.

Scott O. Wright and H. C. Willbrand, Brown, Wright & Willbrand, Columbia, for plaintiff-respondent.

DEW, Special Commissioner.

The plaintiff sued to recover damages to his tractor and trailer caused when they were overturned upon contacting a steel cable stretched across the highway. The defendants had stretched the cable while engaged in pulling a stalled car from a ditch on the roadside. The jury rendered a verdict for the plaintiff in the sum of $8,735, and defendants have appealed.

The petition alleges that at all such times defendant Williams was the agent and employee of the defendant Beckman and acting in the scope of his employment; that plaintiff was on December 20, 1960, the owner of a 1956 International truck to which was attached a Keystone trailer owned by him and loaded with livestock; that plaintiff's driver was driving said equipment south on Highway 63 near Clark, Missouri, on the afternoon of that date, and was exercising the highest degree of care in such operation; that he followed a highway snow plow which was pushing snow from the highway, which vehicle stopped, partially on the west shoulder of the highway and partially on the roadway; that plaintiff's driver then pulled to the left around the standing snow plow and at that time saw a wrecker belonging to defendants sitting on the east shoulder of the highway headed south, and that as he approached to its immediate proximity he saw a steel cable stretched from the wrecker across the highway to a stalled car in a ditch on the other side of the highway.

The petition further alleged that upon seeing the cable stretched across the highway, plaintiff's driver attempted to stop and avoid hitting it but was unable to stop; that his tractor-trailer struck the cable and was caused to turn around and turn over, greatly damaging both units and killing some and injuring others of the livestock.

It is charged in the petition that defendants were negligent in stretching a cable across the highway when they knew, or in the exercise of ordinary care should have known, that persons lawfully using the highway would be unable to see such obstruction; that defendants negligently failed to give proper warning to such persons traveling the highway when they knew, or in the exercise of the highest degree of care should have known, that motor vehicles might come in contact with the cable; that they negligently failed to barricade the traveled portion of the highway to prevent vehicles from coming in contact with said obstruction; that defendants failed to place any notice or warning of such obstruction; that defendants obstructed the highway in violation of Section 229.150 RSMo 1959, V.A.M.S. The petition avers that as a result of such negligence plaintiff's tractor and trailer were torn and damaged; that he was required to expend additional funds to deliver the livestock to its destination; that he lost the use of said equipment from December 20, 1960 to February 14, 1961; that said damages and other losses amounted to a total of $9,000, for which judgment was prayed.

Defendants' answer denied the allegations of negligence on their part and pleaded contributory negligence of the plaintiff.

At the trial the plaintiff called as his first witness the defendant Williams. According to that witness he was in the employ of defendant Beckman on the day of the accident. Among other duties he operated Beckman's wrecking outfit. On the trip in question he could not say how many fuses he took along to use while removing the stalled car at the place of the accident, nor how many lamps or fire pots he had. He did not know if he had any red warning flags in his truck. He drove part of the way to the scene at about 30 or 35 miles per hour. He had used all of his flares in removing another car that same afternoon. He had difficulty in getting traction to pull the car at the place of plaintiff's accident. The stalled car was in a ditch on the shoulder of the west side of the roadway and he placed the wrecker on the east shoulder facing south with a cable attached to the boom and extending to and attached to the stalled car on the west shoulder. The lamp pots would not light and could not have been seen if lighted.

The witness testified that the boom on his wrecker was extended toward the north at a 45 degree angle and had a red light on it near the cab. He said he saw a snow plow stop north of the scene but did not ask the driver for any signals or warning devices, flares or flags, such as he had forgotten to bring along. He did not do any signaling of traffic. He was busy operating the winch on the wrecker and his helper was busy holding the wrecker from slipping. The northbound lane approaching the wrecker was open and a part of the southbound lane. The cable when stretched across the highway was five feet high at the wrecker and about one foot high at the west side of the roadway. The cable was about the size of 'your little finger' and greasy with no flags or markers on it. At the time the cable was tightened across the highway the witness said he heard a truck horn blow. He was facing southwesterly, watching the stalled car across the highway and working the levers. When he heard the horn he 'hit' the lever to release the cable, was unable to get it released and 'I just ran'. He saw the tractor turn, go across the ditch and turn over. He did not see the tractor hit the cable, but could see only a scratch on the cab. The tractor was lying on the east side of the highway and the trailer was across the ditch and over in the field. In it were hogs and cattle. The driver of the stalled car meanwhile remained in the car trying to guide it out of the ditch as it was being pulled.

Plaintiff's driver, Walter Adams, testified that he was driving plaintiff's 220 International 1957 gas truck and Diesel trailer involved in the accident. His testimony tended to show that he was hauling half a load of hogs and half a load of cattle from Salisbury to St. Louis, Missouri. The stock belonged to the farmers for whom plaintiff had hauled before. The highways were icy. On Highway 63 he reached a level strip of road going south and he traveled at 30, 35 or 40 miles per hour. He had seen snow plows at work on the highway that morning and was keeping a mile or a mile and a quarter behind one on Highway 63. As he approached the place where the accident later occurred he could see that the snow plow had stopped, half on the roadway and half on the west shoulder. This was about 200 feet north of where defendants' wrecker was later seen by him. He said that when within about three quarters of a mile of the standing snow plow and while traveling about 30 or 35 miles per hour he saw a white object on the east side of the highway that looked to him like a 'pick-up'. When about half of a quarter of a mile distant he could see that it was a wrecker. He could not see any car on the west side of the highway because of the standing snow plow nearby. He saw no lights on the wrecker nor any flares or warning signals and saw nobody in sight.

Witness Adams further testified that under the above conditions and seeing no traffic approaching from the south, he sounded his horn, pulled out and around the snow plow and then saw the steel cable stretched across the highway. He applied his brakes, his hand control and foot brake. The trailer went off the roadway and turned over and the tractor hit the cable on the driver's side of the cab about five feet high and just below the headlight on the other side. The contact was so strong that it broke the bumper off the stalled car on the other side of the highway to which it was attached. The tractor was turned over on its left side, its frame was sprung on that side, and it was bent where the cable had hit it.

Witness Adams testified further that after the collision he got out of the tractor as best he could; that the hogs were lying all over each other; that he could not release the cattle because there were no fences in the area. Many of the hogs were dead. It was later found necessary to cut a hole in the top of the trailer to get the stock out. The cable was black and greasy. The day was clear, the sun was shining, and the highway covered with ice and snow.

On cross-examination witness Adams said that he could tell from a distance of one to three-fourths of a mile that the vehicle ahead of him on the left was a wrecker, that he saw the snow plow had three lights across the back and an amber light flashing on the top. He could not see any cable. He said he could stop his tractor and trailer under the existing conditions in about 400 or 450 feet. He said he saw no red lights on the wrecker. He immediately applied his brakes when he saw the cable stretching across the roadway. He had lessened his speed when he first saw the white object which appeared to be a pickup truck, but otherwise kept his 55,000 pound rig moving, since he saw no one around and the way was clear around the standing snow plow.

The plaintiff testified that he was in the livestock business and operated a hog-buying market at Salisbury, Missouri; that he delivered hogs bought by him on a commission basis to destinations ordered by his boss; that the business is a seasonable one, and is at its best in November, December and January; that he hauled at least five truck loads a week with his tractor-trailer to places such as Muncie, Indiana, and St. Louis, Missouri; that he owns his own business, has four employees, does his own bookkeeping, banking and payment...