Ridenhour v. Oklahoma Contracting Co.
| Decision Date | 11 January 1932 |
| Docket Number | No. 17354.,17354. |
| Citation | 45 S.W.2d 108 |
| Parties | RIDENHOUR v. OKLAHOMA CONTRACTING CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.
"Not to be officially published."
Action by Helen Ridenhour, by, etc., against the Oklahoma Contracting Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Carter, Jones & Tierney, of St. Louis, for appellant.
James Booth, of Pacific, and L. B. Hutchison, of Vienna, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $650 and defendant has appealed.
The facts show that on the night of November 14th, 1930, between 10:30 and 11 p. m., the servants of the defendant parked a large ditching machine, owned by it, in highway No. 28, a much traveled road running east and west through the town of Bland in Gasconade county. The ditching machine was left on the north side of the highway facing west at the crest of a hill and near the residence and office of Dr. C. A. Bunge in said town. It was parked there on account of having run out of gasoline. Defendant's servants in charge of the machine, according to defendant's evidence, "turned the reserve tank on, parked the machine and moved out of the road so that they could go after more gasoline." Highway No. 28 is surfaced with gravel and where the ditching machine was parked the graveled part of the highway is 27 feet in width. In addition there is about two feet of ungraveled road on the north side of the highway and five feet on the south side. The ditching machine was so parked that it extended about a foot and a half over the center of the highway to the south and on the north side of the highway it extended to within about three and one-half feet of a ditch on that side. The machine was from 30 to 40 feet in length and ten feet high.
There is no evidence as to the per cent. of grade or declivity of the road on either side of the crest of the hill. The testimony tends to show that the crest or "knoll" was 75 to 100 feet long and the machine was parked at the "western side of the knoll."
Early in the morning of November 15, 1930, while it was yet dark, plaintiff, with other members of her family consisting of her father, Wright Ridenhour, her mother and their five children, were riding in a Buick automobile owned and being driven by her father westwardly on Highway No. 28. The father testified that the headlights on the Buick car were lighted but they did not shine upon the ditching machine or disclose its presence as he drove up the hill until he was about 30 to 40 feet from it. At that time he was going at a rate of speed of 30 to 35 miles an hour. There was no room for Ridenhour to drive his car to the right of the ditching machine so he turned to pass it on the left. When the rear wheels of his car were about even with the front wheels of the ditching machine he met and collided with another automobile headed in the opposite direction, resulting in injury to the plaintiff. There was no obstruction of any kind and the weather was clear and dry. If the ditching machine had had lights upon it or if it had been daylight Ridenhour would have seen it "over a block away." There is other testimony that "if it had been daylight or if there had been lights upon the ditching machine (they) the occupants of the automobile could have seen it in time to have avoided the accident."
The evidence shows that occupants of automobiles starting up the hill from either side of the crest could not see cars coming from the opposite direction over the summit of the hill. Ridenhour testified that he first saw the on-coming car when he was 50 or 60 feet from it; that it was in the center of the road going east; that he could not see it sooner on account of the ditching machine; that he "could not see over the hill"; that the other car was going at the rate of about 25 to 30 miles per hour; that when he passed the ditching machine there were no lights on it and no one near it.
There is conflict in the testimony as to the width of the road at the place where the ditching machine was parked. Some of the witnesses said it was parked opposite Dr. Bunge's office. If that was its position, on account of Dr. Bunge's driveway adjoining the road at said place, the entire width of the road is about 40 feet. But there is testimony tending to show that the ditching machine was parked west of the office and that the two cars collided about 35 feet west thereof.
However, even if the ditching machine were parked opposite the doctor's office, there is evidence tending to show that the driveway affords a poor means for the passage of cars using the highway in general. This evidence tends to show that this driveway is a "wedge shaped space which widened to the west and narrowed to the east"; that between the south edge of the highway proper and the doctor's office there is a space not graveled but it can be traveled by automobiles; that the doctor's driveway is about 8 feet in width; that there are some signs and telephone poles on the south side of the highway between the graveled part of the highway and the doctor's driveway; that these telephone posts (four in number) together with the signs prevent one using the driveway "to some extent"; that "one could just use the doctor's driveway for a short distance and then would have to pull back into the right of way again on account of those posts and signs."
The negligence alleged in the petition is in the "placing and permitting said machine to be and remain in said highway at said time so as to obstruct the same, without having lights or warning signals of any kind or character on or about said machine, and without having any person in charge thereof to warn travelers thereon of said obstruction and the danger caused thereby."
Defendant insists that the court erred in failing to give its instruction in the nature of a demurrer to the evidence. In this connection it is claimed by the defendant that there is no evidence that the failure to have lighted lamps or other warning signals upon the ditching machine was negligence. The statute (section 7778), R. S. 1929, requires motor vehicles upon highways in this state to be lighted, front and rear, whether in operation or at rest, during the period from one-half hour after sunset to one-half hour before sunrise. Of course, a violation of this statute is negligence per se. Myers v. Nissenbaum (Mo. App.) 6 S.W.(2d) 993. But defendant offered in evidence an almanac showing that on the morning of the collision the sun rose at 6:34 and it contends that all the evidence shows that the collision took place about 6:30 a. m. Consequently, defendant says that the statute was not violated. We probably would take judicial notice of when the sun rose on the day in question but in view of the fact that it seems to be conceded that the sun rose at 6:34 a. m. we will assume that to be the correct time. We apprehend that neither under the common law or the statute was defendant negligent in failing to have a light upon the ditching machine if the collision took place during daylight. But the evidence on the part of a number of the witnesses shows that the collision took place while it was yet dark. None of plaintiff's witnesses testified that they looked at a clock or watch to ascertain the exact time that it occurred. The evidence that it occurred about 6:30 a. m. appears to be merely an approximation and, as the positive evidence shows that it was dark when the collision occurred, the jury could have arrived at the conclusion that it took place one-half hour before sunrise and that the statute was violated.
However, it is insisted that, assuming that defendant was guilty of negligence in parking its machine without lights, such negligence was but a mere condition and not one of the proximate causes of the injury complained of. This argument is based on the claim that there was no evidence that plaintiff's father attempted to stop or even check the speed of his automobile and that the "inference is not open that if the ditcher had been lighted he would have pulled in behind it and remained there"; that "the absence of lights upon the ditcher * * * was not the cause of Ridenhour's failure to see the approaching car with which he collided, for according to his own testimony, the ditcher was parked at the top of the hill which he could not see over"; that there was ample room for both cars to pass south of the ditching machine; that Ridenhour saw the machine 30 or 40 feet away and made no attempt to slacken his speed; that he saw the other car 50 or 60 feet away and "is silent as to his efforts to avoid it"; that the only proximate cause of the collision was the negligence of either Ridenhour or Luster, the driver of the other car, or both of them combined, and not the negligence of the defendant in leaving the unlighted machine in the road.
`It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. ...
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