Redick v. M. B. Thomas Auto Sales

• Decision Date: 13 December 1954
• Docket Number: No. 44384,No. 1,44384,1
• Citation: 273 S.W.2d 228,364 Mo. 1174
• Parties: Claude E. REDICK, Appellant, v. M. B. THOMAS AUTO SALES, Inc., a Corporation, Respondent
• Court: Missouri Supreme Court

Page 228

273 S.W.2d 228

364 Mo. 1174

Claude E. REDICK, Appellant, v. M. B. THOMAS AUTO SALES, Inc., a Corporation, Respondent.

No. 44384.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1954.

Hullverson & Richardson, James W. Jeans, St. Louis, for appellant.

Wilbur C. Schwartz, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff, a motor truck operator, sought damages in the sum of $75,000 for personal injuries sustained when a tractor-trailer truck driven northward by him on U. S. Highway 66 near Pontiac, Illinois, collided with the rear end of defendant's automobile transport tractor-trailer truck also headed northward on said highway. The petition alleged and the trial court submitted to the jury the issues of defendant's negligently causing or permitting the stopping of its truck upon the highway and its negligent failure to have rear lights thereon. Defendant denied the acts of negligence charged against it and pleaded plaintiff's contributory negligence in failing to keep a lookout ahead and in failing to yield the right of way, both of which issues were also submitted.

The jury found in favor of defendant. Plaintiff appealed, assigning error in the refusal of the trial court to instruct the jury that the burden of proving contributory negligence on the part of plaintiff rested upon the defendant, in giving certain instructions in behalf of defendant, in permitting defendant's counsel to make prejudicially improper argument, and in refusing to permit plaintiff's counsel to make proper argument.

The collision out of which the action arose occurred about 1:30 a. m., on February 26, 1952, at the intersection of Highways 66 and 116 in the State of Illinois. At this point and for a considerable distance in either direction, both highways are straight and level. Highway 66 extends north and south. Highway 116, extending westward from Pontiac, intersects Highway 66 at a right angle. Highway 66, paved with concrete, is 24 feet in width; Highway 116, also paved, is 18 feet in width. The pavement was dry and the atmosphere free from fog or mist. At the time of the collision there was suspended at a height of about 15 feet directly over the center of the intersection a flasher light which flashed red for traffic proceeding on Highway 116 toward the intersection and amber for traffic proceeding on Highway 66 toward the intersection. At the time of the collision a Hayes Truck Lines tractor-trailer was parked about 50 feet east of Highway 66 and 100 feet north of Highway 116.

Defendant's truck, consisting of a tractor and an empty orange-colored automobile transport trailer with a load capacity of four cars, left St. Louis in the early evening of February 25th and proceeded along Highway 66 toward Chicago for the purpose of there receiving a load of cars to be transported back to St. Louis. Plaintiff, operating a tractor-trailer truck for Consolidated Forwarding Company, left St. Louis at about 8:10 p. m., on the evening of February 25th, also enroute to Chicago over Highway 66, with a load of glass.

Plaintiff's evidence tended to show that when the truck operated by him came within 1,000 feet of the intersection it was going about 45 miles per hour with its headlights on the high beam. As he approached, he took his foot off the accelerator, looked laterally and ahead, and slowed his speed, so that at a distance of 100 or 200 feet from the intersection he was travelling about 30 or 35 miles per hour. The light over the intersection tends to get into the eyes of persons driving north or south, they 'more or less look at the light', it attracts their attention, 'you couldn't see beyond that and on, and you couldn't see beneath the light.' It 'throw[s] a wall of light', and an operator can see better by dimming his lights. Plaintiff dimmed his lights but 'still couldn't see underneath this light because it throwed a kind of shield or something like that.' (On cross-examination, plaintiff said that with his lights dimmed he could see a man or a dog or an unlighted automobile 150 feet away from him.) Immediately after his tractor passed beyond the flasher light and when his trailer was directly under it, he saw the rear end of defendant's trailer about 30 feet in front of him, 'stalled', 'standing still'; 'it seemed to be stopped'; 'if it wasn't stopped, it wasn't moving two miles an hour.' It had no lights burning. Its rear end was 15 feet north of the intersection. Travelling at 35 miles an hour plaintiff could have stopped his truck with safety to himself in a distance of about 70 feet. He had no time to apply his brakes. He turned a little to the left and struck the rear end of the transport trailer. The door of his cab flew open, he was thrown to the pavement and rolled upon the highway. He was not rendered unconscious and soon returned to the scene of the collision. Both trucks had rolled northeastwardly and plaintiff's outfit had 'jackknifed' around the parked Hayes Lines truck, plaintiff's tractor going underneath the Hayes trailer. Plaintiff denied that he stated to anyone that he was asleep or had dozed off. He was taken to a hospital by a highway patrolman.

Alan Schroeder, a Consolidated driver who was also driving a truck northward on Highway 66 ahead of plaintiff, testified that as he approached the intersection he noticed an auto transport coming from the east on Highway 116 and slowly and jerkily moving in a right turn northward onto Highway 66 with its headlights almost out. In his opinion its generator was dead or dying or it was having battery or fuel trouble. Schroeder blew his horn, flashed his lights, applied his brakes and swerved to his left around the auto transport truck, barely missing it. He continued on a few miles, noticed that plaintiff's truck was missing from view in his rear vision mirror, turned around, went back and found that plaintiff had been taken to the hospital. (The auto transport described by this witness was never identified as defendant's truck. In fact, the witness said on cross-examination that by no stretch of imagination could he identify it as defendant's truck. He also described it as green, whereas the evidence showed defendant's tractor to be red and its trailer to be orange-colored.)

The testimony in behalf of defendant was that its tractor and trailer lights and battery were in good condition prior to the collision. There were three lights on the rear bottom of the trailer at the center thereof, one on each corner, a stoplight on each side of the trailer that shows 'Stop' when the brakes are applied, and three lights on the front thereof. The lights were burning when the collision occurred. After the collision the lights on the tractor were still burning but the collision knocked the rear and side lights off the trailer.

Defendant's operator, Glenn Jarrett, testified: His truck was not on Highway 116 prior to the collision. Prior to that time he was at all times on Highway 66. When he came within 150-200 feet of the intersection he reduced his speed to 25-30 miles per hour and began to flicker his lights between dim and bright. When the rear end of his trailer was even with or a little north of the light over the intersection, it was struck from behind, causing the outfit to leave the highway and strike the Hayes truck. Shortly thereafter, plaintiff came walking up the highway from the south and asked that someone get a doctor for him. Witness asked plaintiff what happened. Plaintiff replied: 'I don't know. I must have dozed off asleep, but when I woke up there was your taillight just in front of me; and when the trucks hit I fell out on the ground, and I don't know what else happened.'

Plaintiff contends that under the law of Missouri the burden of proving plaintiff's contributory negligence rested upon defendant; that such burden of proof is a procedural matter to be determined by the law of Missouri; and that the refusal of his proffered instruction so directing the jury was error. Defendant contends that the law of Illinois governs the substantive rights of the parties to this action; that under the law of Illinois a substantive and essential element of plaintiff's right to recover is the exercise of due care on his part, which must be both pleaded and proved before a submissible case is made; and that such an instruction would have erroneously placed upon defendant the burden of disproving an essential element of plaintiff's right to recover and was properly refused.

It is agreed by the parties and indeed it could not be gainsaid that the law of Illinois governs as to the substantive rights of each and both parties. Newlin v. St. Louis s. f. r. c/o., 222 Mo. 375, 391, 121 S.W. 125, 130; Saba v. Illinois Cent. R. Co., 337 Mo. 105, 85 S.W.2d 429, 432; Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748, 753, 2 A.L.R. 2d 1292; Connole v. East St. Louis & S. Ry. Co., 340 Mo. 690, 102 S.W.2d 581, 585. It is also clear that under the law of Illinois it was incumbent upon plaintiff to allege and prove that he was in the exercise of ordinary care for his own safety at the time of the accident. Hanson v. Trust Co. of Chicago, 380 Ill. 194, 43 N.E.2d 931, 933; Prater v. Buell, 336 Ill.App. 533, 84 N.E.2d 676, 678; Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505, 104 N.E. 223, 224.

At this point, it should be noted that the petition does not allege the exercise of due care on the part of plaintiff and defendant argues with much logic that it is therefore fatally defective and subject to attack for the first time in this court. The disposition we make of the case renders it unnecessary to decide that question. But it should also be noted that plaintiff's verdict-directing instructions require no finding that plaintiff was in the exercise of due care.

Is the Illinois requirement that plaintiff prove he was in the exercise of due care substantive or merely procedural? In ...