Palmer v. Lasswell
| Decision Date | 12 March 1956 |
| Docket Number | No. 45060,No. 1,45060,1 |
| Citation | 287 S.W.2d 822 |
| Parties | John PALMER, Appellant, v. Lee LASSWELL, Respondent |
| Court | Missouri Supreme Court |
Green & Green, Will H. D. Green, H. D. Green, Jr., West Plains, for appellant.
Esco V. Kell, West Plains, for respondent.
Action for damages sustained when plaintiff's automobile and defendant's truck collided on U. S. Highway No. 63 in the city of West Plains, Missouri. Plaintiff, in the first count of his petition, asked damages for his own injuries and for injuries to and consequent medical expense and loss of services of his wife in the sum of $7,500 and, in the second count, for property damages in the sum of $1,100, or a total of $8,600. Defendant filed an answer and counterclaim, the counterclaim arising out of the same collision. Defendant asked $2,500 for personal injuries and $1,000 for property damage. On trial, the jury returned a verdict, as follows: 'We, the jury, find the issues for the defendant, Lee Lasswell, on both counts of plaintiff's petition, and against the plaintiff, John Palmer, and we further find for the defendant, Lee Lasswell, on his counterclaim, and assess no damages.' The judgment followed the verdict. Defendant did not appeal. Plaintiff appealed to the Spring-field Court of Appeals, but that court found it had no jurisdiction to determine the appeal and transferred the cause to this court. Palmer v. Lasswell, Mo.App., 279 S.W.2d 535.
The only errors assigned on this appeal concern the giving of defendant's instruction 'A' with reference to contributory negligence as a defense to plaintiff's action and defendant's instruction 'B' dealing with plaintiff's burden of proof to make out his case. These assignments only concern the plaintiff's claims. We have jurisdiction of the appeal, since the amount involved is the total amount of plaintiff's claims, or $8,600. Sec. 3, Art. V, Const. of Mo.1945, V.A.M.S.
Plaintiff's evidence tended to show that U. S. Highway No. 63 is a paved highway, which extends in a general north-south direction through the city of West Plains; and that the pavement is concrete, 22 feet wide with a mark down the center. The highway is a busy thoroughfare with lots of traffic. It intersects Broadway street at right angles and also First, Second, and Third streets in the order mentioned as one goes north on the highway. The collision in question occurred at the Third street intersection.
On April 20, 1951, about 6:15 p. m., while it was daylight, plaintiff, accompanied by his wife, was operating his 1948 Plymouth automobile northwardly on the east side of the highway, having entered from the east side at the Broadway intersection. Before entering he had waited for three northbound automobiles to pass the intersection and he followed them north at a speed of 15 to 20 miles per hour. When plaintiff was within about 150 feet of the Third street intersection, he saw a Ford automobile stopped in the southbound lane of the highway at Third street, waiting for northbound traffic to clear. Apparently, the driver was intending to make a left turn and go east on Third street. The Ford automobile was operated by a Mrs. R. G. Collins and there was testimony that, when she had stopped, she saw no traffic approaching from her rear, but that four northbound automobiles were approaching from the south and had not cleared the intersection. When she stopped, she turned on the rear blinker lights as a signal of her intention to make a left turn. When plaintiff's automobile entered the Third street intersection it collided with defendant's truck, which was traveling south on the highway and to the rear of the Collins' automobile. According to plaintiff's evidence, the truck first struck the left rear of the Collins' automobile and that automobile came to rest 80 feet southwest of the point of collision. The truck also struck the left side of plaintiff's automobile about center, just back of the front seat, and 'it spun around like a top' and came to rest facing southwest, but some 68 feet northeast of the point of collision. The truck came to rest in the intersection on the west side of the highway and in its southbound traffic lane. Skid marks on the pavement extended back from the rear wheels of the truck for some 49 feet. There were no lateral, or east to west skid marks, back of the truck.
At the time the truck struck the Collins' automobile plaintiff's automobile was 3 or 4 feet south of the Collins' automobile and moving north on the east side of the highway. Defendant 'whipped his truck over to his left,' while plaintiff 'speeded up a little trying to get out of his way,' but the truck struck plaintiff's automobile on its left side, while it was on the east side of the highway. The right front wheel of plaintiff's automobile was off the pavement when the collision occurred. Marks, dirt and debris on the highway indicated that the collision occurred in the northbound traffic lane. The left front fender of plaintiff's automobile was mashed in back of the headlight on the left side and the entire left side had collided with the truck, resulting in severe damage.
Prior to the collision, but after the operator of one of the northbound automobiles traveling ahead of plaintiff had passed the Collins' automobile and had proceeded some 150 feet further north, he saw defendant's truck traveling south in the west lane of the highway and approaching the Collins' automobile from the rear at 50 to 60 miles per hour. The Third street intersection was clearly visible for more than 200 feet as one approached it from the north.
There was evidence that, after the collision, defendant told Sgt. Brill of the Highway Patrol that his truck first collided with the rear end of the Collins' automobile and then bounced over and collided with plaintiff's automobile; and there was evidence that defendant, after the collision, told Mrs. Collins that, when he saw the Collins' automobile stopped in his path, he attempted to turn left and go between the two automobiles, that is, between Mrs. Collins and plaintiff. Both plaintiff and his wife received personal injuries in the collision and plaintiff's automobile was damaged, as stated.
Defendant testified: The truck stopped in its southbound lane 18 inches to 2 feet west of the center line of the highway. Defendant had been driving at 25 to 35 miles per hour and slowed 'pretty close' to 10 to 15 miles or held his own at 15 to 20 miles per hour in traffic behind the Collins' car. The driver of 'the Collins' car gave no signal at all, she did not hold out her hand' and there weren't any blinker lights on the Collins' car. Defendant was within about 50 feet of the Collins' car when it stopped 'pretty sudden.' He didn't tell Sgt. Brill that his truck bounced. He made no statement to Mrs. Collins. The truck was three times as heavy as plaintiff's Plymouth. Defendant testified further 'that a drive-in had just been made and the cars turning to the right had carried quite a little bit of clay on the road and there wasn't as good braking surface, as there should be, and the truck being empty you didn't have must traction and every wheel scooted 48 feet.' The collision 'broke the bolt going through the spring and bent it back and pulled the radiator sideways and pulled the hose off.' It cost $50 or $75 to get the truck repaired.
Defendant relies on parts of plaintiff's evidence to support one of his instructions. Plaintiff testified that he was watching the Collins' automobile and had seen it for 150 feet; and that he had started to pass it when he saw the truck. He did not see the defendant's truck, which was the next car immediately behind the Collins' car, until the truck was within 3 feet of plaintiff's automobile. When he did see the truck, he did not pull around it, he didn't have time. He did not try to turn down Third street to avoid a collision. He did not sound his horn or do anything to give defendant any warning. He did not stop or slacken speed. His wife saw the truck 150 feet away.
As stated, appellant complains of the giving of instructions 'A' and 'B' at defendant's request. It is first contended that instruction 'A' is erroneous because plaintiff's contributory negligence was not pleaded as a defense nor shown by plaintiff's evidence. Brady v. St. Louis Public Service Co., 361 Mo. 148, 233 S.W.2d 841. We find no merit in this objection. Defendant's answer and counterclaim contained this averment: 'Defendant for further answer and defense to the petition of plaintiff herein states that if plaintiff was injured, or if his said wife was injured, or if his automobile was damaged, such personal injuries and damages to said automobile were directly contributed to and solely caused by plaintiff's aforesaid acts of negligence hereinbefore set...
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