Penn v. Columbia Asphalt Co., KCD

• Decision Date: 01 July 1974
• Docket Number: No. KCD,KCD
• Citation: 513 S.W.2d 679
• Parties: Frankie R. PENN and Pastsy Mae Penn, Plaintiffs-Appellants, v. COLUMBIA ASPHALT COMPANY, a Missouri corporation, Defendant-Respondent. 26184.
• Court: Missouri Court of Appeals

Page 679

513 S.W.2d 679

Frankie R. PENN and Pastsy Mae Penn, Plaintiffs-Appellants, v. COLUMBIA ASPHALT COMPANY, a Missouri corporation Defendant-Respondent.

No. KCD 26184.

Missouri Court of Appeals, Kansas City District.

July 1, 1974.

Motion for Rehearing and/or Transfer Denied Aug. 5, 1974.

Application to Transfer Denied Oct. 14, 1974.

Roger D. Hines, Columbia, for plaintiffs-appellants.

Hendren & Andrae, Alex Bartlett, Jefferson City, for defendant-respondent.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

The plaintiffs Frankie R. Penn and Patsy Mae Penn, his wife, appeal from an order for new trial in favor of defendant Columbia Asphalt Company after the return of jury verdicts of $32,000 for Frankie R. Penn for personal injuries and of $4,000 for Patsy Mae Penn for loss of services. The grant of new trial was for error in Instruction No. 2 on the burden of proof and in Instruction No. 4 on the claim of Patsy Mae Penn for loss of consortium. We reverse and remand for reinstatement of verdicts.

On June 30, 1965, at about 3:05 a.m., plaintiff Frankie Penn was driving a tractor-trailer rig in an easterly direction on Interstate 70 east of Columbia at a point approximately one mile east of Routes P and J. It was raining heavily with gusty winds. At that point the truck collided with a large roller and a spreading machine owned by defendant. The area of the collision was being resurfaced with asphalt by defendant under a contract with the State Highway Department. The roller and spreader were parked on the paved shoulder; they exhibited no lights although each carried a single warning flag. The cab of the tractor was virtually demolished, the construction equipment was heavily damaged and Frankie Penn severely injured.

At this point the roadway was 38 feet wide with two 12 foot driving lanes and adjacent paved shoulder on the south of the eastbound lanes. A drop-off of one-half inch or so separated and defined the shoulder from the normal highway pavement. At the time of the collision, the white lane markings had not yet been placed on the highway nor had the white chat used to differentiate the shoulder from the driving lanes been applied. Construction warning signs had been placed near the beginning of the project some 7 miles east of the point of collision. The plaintiff had made a run from St. Louis to Kansas City on the day before and had observed the paving in progress in the eastbound lanes of Interstate 70 east of Columbia.

The construction equipment had been parked at the scene by its operators the evening before when they had finished their work for the day. The operators originally had been joined as defendants, but at the close of all the evidence the claims against them were dismissed with prejudice by plaintiffs. The plaintiffs submitted their claims to the jury on the single theory that defendant Columbia Asphalt Company had negligently parked its equipment upon the roadway without sufficient warning lights.

On this appeal plaintiffs assert that Instruction No. 2 and No. 4 were free of error. Respondent disputes this contention and argues alternatively that, in any event, its motion for judgment should have been sustained and that the grant of new trial can be supported on other grounds preserved in its motion for new trial and briefed to this court.

We consider the alternative arguments of respondent in support of the new trial order. The first, that respondent was entitled to its after-trial motion for judgment itself rests upon the alternative grounds that: (1) plaintiff Frankie R. Penn was contributorily negligent as a matter of law; (2) the evidence was insufficient to show that Columbia Asphalt Company was negligent or that any such negligence was the proximate cause of injury and damage to plaintiffs, and (3) the causes of action were barred by prior judgment. The first two contentions test the sufficiency of the evidence, therefore we augment the statement of facts already given. This we do in the light most favorable to the verdicts for plaintiffs. Fitzpatrick v. Federer Realty Company, 351 S.W.2d 673, 681(2) (Mo.1961).

The run which culminated in collision began from the Kansas City terminal of plaintiff's employer, Yellow Transit. Frankie Penn was driving a rig 50 feet in overall length and somewhat more than 40,000 pounds in weight. The weather was stormy and driving was hazardous. The site of collision was slightly downgrade; as he started down after cresting a hill, Penn felt a gust of wind move the vehicle sideways, but he believed he was still on the roadway. (The testimony by Penn that the wind had been strong and gusty was confirmed by Patrolman Volkemer who found evidence at the scene of damage by strong winds.) At that time his speed was between 40 to 45, perhaps 50, miles per hour. As he attempted to straighten the direction of his rig, a yellow hulk (the roller) loomed in front of him some 70 to 75 feet ahead. He tried to avoid collision with the object but did not succeed. Penn testified that his lights, on low beam because of the rain, were in good working order and allowed him visibility of 175 to 200 feet. He acknowledged that he could not have stopped his rig within that distance, but that he had been proceeding on the assumption that there were no stationary objects on the roadway. The impact virtually demolished the cab of the tractor and upset the trailer so that it came to rest on its side upon the grassy slope south of the paved shoulder. The roller, which had been parked parallel to and about five feet south of the shoulder, was forced backwards into the spreader. Both pieces of equipment were a bright yellow, and as we have noted, neither had lights, but each exhibited a flag.

The investigating officer, Patrolman Volkemer, arrived at the scene just about 4:00 a.m., about an hour after the casualty. When he arrived, a large informational highway sign supported by two steel I-beams set in concrete, which had been installed just west of where the construction vehicles were parked and just south of the paved shoulder, had been shorn so that the northernmost post was torn from the ground. The southernmost post was bent but remained fast in the ground (The plaintiff driver neither recalled the sign nor having struck it.) Volkemer found dual wheel tracks in the soft earth just off the shoulder at a point 117 feet west of the sign which continued in a straight line and extended 20 to 30 feet west of the sign, at which point the ground appeared to be 'pretty much chewed up'. In this area, Volkemer testified, it appeared another set of wheels had come off the paved shoulder and widened out, veering southeasterly toward the sign. Volkemer concluded that the truck had hit the sign but the damage to the tractor had been so extensive that he could find no evidence of impact.

The respondent Columbia Asphalt Company does not question the rule that contributory negligence is usually for the jury, and that for it to appear as a matter of law, the evidence must clearly establish to reasonable minds without disagreement that the injury suffered by plaintiff was the result of failure to exercise due care for his own safety. Dalby v. Hercules, Inc., 458 S.W.2d 274, 277(1) (Mo.1970). Respondent argues, rather, that Penn knew he was in a construction area and thus had no right to assume that the roadway was clear and could be safely travelled, and that in the circumstances, Penn's concession that he was driving ahead of his lights convicts him of contributory negligence as a matter of law. The respondent acknowledges that Missouri has rejected inflexible application of the 'assured clear distance rule' ¹. (Haley v. Edwards, 276 S.W.2d 153, 158(1) (Mo.1955)) but insists that the circumstances of this case demand the application of the doctrine. The respondent relies on numerous authorities for these related contentions and asserts that Trantham v. Gillioz, 348 S.W.2d 737 (Mo.App.1961) controls our decision.

In Trantham, the court found that a plaintiff who deliberately by-passed a well-marked detour, drove around a barricade to go upon a road which he knew was in process of completion and not yet open to the public, and at speeds of 60 to 70 miles per hour drove down the road into a two foot high dirt obstruction which completely blocked the road, was guilty of contributory negligence as a matter of law. The court gave this rationale, l.c. 741(3):

Ordinarily a traveler rightfully upon a public highway may, in the absence of any notice to the contrary, assume or presume that the way ahead is clear and that it may be safely traveled at a reasonable speed. But this rule does not apply if the traveler knows, or should know, that the road is under construction, especially if it is closed to public travel. (Emphasis added)

And, although the same duty rests on a motorist on a street open to the public (Rohmann v. City of Richmond Heights, 135 S.W.2d 378, 383(9) (Mo.App.1940)), the duty is more compelling where the motorist is in a place he has no right to be. Trantham, supra, 348 S.W.2d l.c. 742(5). A crucial issue in the determination of whether a motorist may assume a clear way is whether the circumstances put him upon inquiry of the possibility of danger ahead. Metz v. Kansas City, 299 Mo.App. 402, 81 S.W.2d 462, 469(4) (1935). In the expression of Trantham, 348 S.W.2d l.c. 741(3), where the traveler knows, or should know, that the road is under construction, and especially if it is closed to public travel, the law imposed upon him a duty 'to so manage his automobile that he may, by the exercise of care commensurate with the circumstances', avoid danger.

The respondent contends that under the Trantham rule, the conjoined circumstances of knowledge by Penn from the run of the previous day that the area was under repair, the sign warning of construction, the concession by Penn that he was driving ahead of his lights, the speed at which he...