Padgett v. Missouri Motor Distributing Corporation

• Decision Date: 07 February 1944
• Docket Number: No. 38618.,38618.
• Parties: PADGETT v. MISSOURI MOTOR DISTRIBUTING CORPORATION.
• Court: Missouri Supreme Court

177 S.W.2d 490

PADGETT v. MISSOURI MOTOR DISTRIBUTING CORPORATION.

No. 38618.

Supreme Court of Missouri, Division No. 1.

February 7, 1944.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by Walter T. Padgett against Missouri Motor Distributing Corporation for injuries sustained when defendant's tractor-trailer allegedly forced plaintiff's automobile into a ditch. Plaintiff was awarded a new trial after verdict for defendant, and defendant appeals.

Affirmed, and cause remanded.

James R. Sullivan and Arthur R. Wolfe, both of Kansas City, for appellant.

Clarence C. Chilcott and C. W. Prince, both of Kansas City, for respondent.

HYDE, Judge.

This is an action for $25,000 for personal injuries. The jury found for defendant. However, the court sustained plaintiff's motion for new trial ("because of error of Instructions C and D, same being burden of proof instructions"); and defendant has appealed.

Plaintiff claims that one of defendant's two truck trailers, pulled by a tractor, struck the front fender of his car turning it off the road into a ditch. Defendant contends that any error in instructions was immaterial because plaintiff failed to make a jury case. Defendant says it was entitled to a directed verdict because there was no proof of negligence and no proof of identity of the truck. Plaintiff says that this issue cannot be determined because defendant has not complied with our Rule 13 and Sec. 1194, R.S.1939, Mo.R.S.A. This is based on the omission of the testimony of eight witnesses. However, defendant's abstract shows that this was all testimony of physicians, and other witnesses concerning plaintiff's injuries, and is omitted "because no issue is raised on this appeal concerning plaintiff's injuries." Plaintiff does not deny this or show how such testimony could be material to any issue herein. Therefore, its omission was not only proper under the rule and statute but it should be left out, when it is immaterial to appellate issues, both to save useless expense to litigants and to prevent waste of time of this court in finding the testimony "necessary to a complete understanding of all the questions presented for decision." Rule 13; State ex rel. Park National Bank v. Globe Indemnity Co., 333 Mo. 461, 62 S.W.2d 1065(2).

Plaintiff testified that he was driving east on Highway 40 about 9:30 P. M. following an automobile driven by his stepson. (They were going on a fishing trip.) He started down a hill, driving about 30 to 35 miles per hour, when a tractor pulling two trailers came close behind him and after its horn was sounded two or three times, it started around him. About the same time the lights of another car appeared, coming toward them around the curve at the foot of the hill. Plaintiff described what then happened as follows:

"About the time that his cab got alongside of my car this car coming west flashed around the curve at the foot of the hill coming at a high rate of speed, * * *. When he done that this fellow cut right in front of me with this tractor, * * *. I taken to the shoulder of the highway as far as I could, and the motor and first trailer passed by my car. (`I would say that half of my car was off the slab, at least half of my car was over on the shoulder.') * * * The fender of the front end of my car, left fender, protruded underneath the body of this trailer a few inches, * * * about that time something * * * struck the front fender of my car, and turned it into the ditch on its head, on its front end, throwing me completely out of the car up against this bank." (Plaintiff thought the rear wheel of the rear trailer struck his fender.)

Defendant argues there was no proof of negligence because it appears from plaintiff's own testimony that the way ahead was clear of approaching traffic; that the truck driver gave warning with his horn of his intention to pass plaintiff; and that he had a clear space of at least 800 feet in which to pass plaintiff before reaching the point where the curve began. Defendant says that the appearance of the other car coming at a high rate of speed around the curve created a sudden emergency, which plaintiff recognized by driving partly on to the shoulder to give the truck driver space for clearance, and that it cannot reasonably be said that the emergency was created through any fault of the truck driver. However, we think these matters were for the jury. There was heavy traffic on Highway 40 on the evening of the accident and not only might the approach of another car at a curve have been reasonably anticipated, but also it would not be unreasonable to believe that the reflection of its lights, indicating its approach, could have been discovered before it actually appeared. We hold that it was for the jury to determine whether or not the truck driver was in the exercise of the highest degree of care, Sec. 8383, R.S. 1939, Mo.R.S.A. in undertaking to pass plaintiff's car so near to the curve and taking up so much of plaintiff's side of the road, Sec. 8385e, R.S.1939, Mo.R.S.A.; whether or not the truck driver should have anticipated that another automobile might come around the curve before he could completely clear plaintiff's car (Moore v. East St. Louis & S. R. Co., Mo. App., 54 S.W.2d 767); and whether or not the truck driver, by the exercise of the required degree of care, would have cleared plaintiff's car without striking it, when it was half off the highway, and still have avoided the oncoming car.

Likewise we think that the matter of the identity of defendant's vehicle was also for the jury. Plaintiff testified that he saw the name "Missouri Motor Distributing Corporation" on the lighted side of the trailer. Plaintiff was a switchman in the Kansas City Railway Yards and was familiar with defendant's trucks. Defendant's stepson said that a tractor and two...