Parsons v. Noel
| Decision Date | 13 September 1954 |
| Docket Number | No. 1,No. 43844,43844,1 |
| Citation | 271 S.W.2d 543 |
| Parties | Lucy N. PARSONS, Respondent, v. Finis E. NOEL, Cecil Noel, and William Noel, d/b/a Noel Brothers, Appellants |
| Court | Missouri Supreme Court |
Roy F. Carter, Sprinkle, Knowles & Carter, Kansas City, for appellants.
Gayles R. Pine, Warrensburg, for respondent.
LOZIER, Commissioner.
Plaintiff-respondent (herein called plaintiff) sued defendants-appellants (herein called defendants) for the alleged wrongful death of her husband, Eugene F. Parsons. Plaintiff had a verdict for $15,000 and judgment was entered accordingly. Defendants appealed.
Defendants first allege error in the overruling of their motions for a directed verdict 'because plaintiff's husband was guilty of contributory negligence as a matter of law.' They also contend that plaintiff's Instruction 1 is 'unsupported by the evidence.'
(Citing cases.) Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 499-500[1-4].
So stating the evidence: Parsons lived in Centerview, on Highway 58, a little over 2 miles south of the intersection of that highway with Highway 50. For five weeks before his death, he had worked in Warrensburg, on Highway 50, 6-7 miles east of the intersection. He drove his car to and from Warrensburg. On August 1, 1951, he was killed in a collision between his car and defendants' dump truck, driven by their employee, Simpson. Shortly after 8 p. m., Simpson, driving south on Highway 58, 'ran out of gas' and stopped the truck 50 feet south of a bridge with its rear dual wheels on the 'blacktop' pavement, i. e., in the west or southbound travel lane. The truck's lights were not on. Parsons, driving south with his headlights on, ran into the truck. Parsons' car left skid marks 100 feet long in the west travel lane. Parsons' car stopped in that lane. The truck was moved 25-30 feet into the west highway ditch.
The bridge has concrete abutments and its floor is about the width of the highway pavement, 18 feet. The highway shoulders north and south of the bridge are 5-6 feet wide. The highway is straight and level for 300 feet north of the bridge, then its slope (3-4%) is upward 700 feet to the crest of a hill, then downward over another bridge, then upward over another hill. South of the bridge, the highway is straight and level for 100 feet, then its slope (4-5%) is upward to an 'overpass' at Centerview.
Charles Pratt testified that he was a construction superintendent; his company had a field office in Centerview; defendants were sub-contractors of his company. He was driving north on Highway 58 with his headlights on; he had turned them on when he left the office; 'it was getting pretty hard to see.' While coming down the hill from the overpass, he first saw the truck on the west edge of the pavement about 800 feet away. Its lights were not on. It was 'a bright object' in the rays of his headlights. 'That was the way I knew it was a truck.' He was going 35-40 m.p.h. About the same time, he saw Parsons' headlights come over the first hill north of the bridge. Parsons' car was then probably 1,000 feet north of the truck. It crossed the bridge just as Pratt was coming to a stop. Pratt stopped his car (still on the pavement, as he recalled) about 100 feet south of the truck. His headlights were still on. There was no car ahead of him in the east or northbound travel lane. About that time the collision occurred. The only vehicles on the highway in the vicinity were the truck, Parsons' and Pratt's. There was 12-13 feet of unobstructed pavement east of the truck.
Asked upon cross-examination how far he 'could see an automobile or vehicle down the highway without the aid of his headlights that evening at the time of this occurrence,' Pratt said, (Defendants' counsel did not press the matter.) Both Pratt's and Parsons' headlights 'were normal so far as lighting up the highway' was concerned. Before the collision, he heard the roar of Parsons' motor; 'it sounded like a Ford going at high speed to me.' Pratt said that he saw that Parsons 'was going to have to hit the truck or swerve around it and I pulled off the road so he wouldn't hit me.' Pratt's 'best idea' of Parsons' speed was 70 m. p. h. That was 'a pretty fair idea as to how fast he was going; no more than anyone else could tell in meeting a car.' Pratt was 'not a good judge of the speed of a car traveling toward you with its headlights on.' Parsons' speed was reduced 'very little' between the time Pratt first saw Parsons' headlights and the time of the collision. After the collision, Pratt saw a whiskey bottle in Parsons' car.
Allen Craig, Parsons' next door neighbor in Centerview, 'heard the brakes squeal and the crash' in Centerview, 'a little more than a quarter of a mile away.' He drove to the collision site with his headlights on. 'It was dark * * * around dusk, probably eight (o'clock).'
Mrs. Viola McMurtrey was driving north on Highway 58, accompanied by Mrs. Varene Crisp. Her car lights were on. She 'did not see or observe' the truck as she came down the hill from the overpass. She first saw it when she 'got close to the bridge.' The truck was then north of the bridge, its headlights were not on and it was moving slowly, 10-15 m.p.h. She passed it north of the bridge. Then On the north side of the first hill north of the bridge she met Parsons. His headlights were on. She had no opinion as to his speed. She met no other cars coming from the north and no other car, coming from the south, passed her.
Mrs. Crisp corroborated Mrs. McMurtrey as to passing the truck, without its headlights on, and as to passing Parsons' car, with its headlights on. She had no opinion as to Parsons' speed.
When Sheriff Alex Nichols arrived at the scene, Parsons' car was in the west lane, about 50 feet south of the bridge. Simpson told him that he 'had run out of gas, the truck died on the highway and he had no way of getting it off.' The sheriff saw and talked to Parsons 'around eight o'clock' at a liquor store on Highway 50 but Parsons was not drinking.
Defendants' evidence favorable to plaintiff was: The state highway patrol trooper said that, at the site after the collision, Simpson told him that he 'estimated' that the collision occurred at 8:10 p. m. and that he 'didn't have his lights on.' Upon cross-examination, the trooper was asked: 'At that time was it dark enough for the use of automobile headlights in driving a car on the highway?' Defendants' counsel objected 'to that as calling for a conclusion and invading the province of the jury.' The objection was sustained. The trooper said that the seal on the whiskey bottle in Parsons' car had been broken and 'there might have been a drink, but there wasn't much out of it.'
Simpson testified that he stopped the truck with its rear on the pavement. On direct examination, he admitted that the truck's lights were not on. 'The sun had gone down; I wouldn't say--I don't know whether or not it was dusk.' He did not recall the McMurtrey car passing him. After he stopped the truck, he saw the lights of a car (Pratt's) coming from the south. There was one (Parsons') coming from the north; it was on the north side of the first hill north of the bridge. Simpson said he first 'tried to flag' Pratt and then Parsons.
On cross-examination, Simpson 'didn't know for sure' whether the truck lights were on. He had 'flipped' the light switch at the Highways 50-58 intersection 'as a safety precaution.' He knew that the lights 'were working' but not whether they 'were on' at any time before the collision occurred. He had not observed whether either the truck's headlights or its rear lights were on. 'It was just a matter of seconds' between the time he stopped the truck and the collision.
In Instruction 1 (hereinafter discussed), plaintiff submitted Simpson's negligence in leaving the truck on the pavement...
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