Roberts v. Wilson

• Decision Date: 03 November 1930
• Docket Number: No. 16690.,16690.
• Citation: 33 S.W.2d 169
• Parties: MERVIN C. ROBERTS, RESPONDENT, v. HOWARD WILSON, SR., APPELLANT.
• Court: Missouri Court of Appeals

33 S.W.2d 169

MERVIN C. ROBERTS, RESPONDENT, v. HOWARD WILSON, SR., APPELLANT.

No. 16690.

Kansas City Court of Appeals. Missouri.

November 3, 1930.

Appeal from Circuit Court of Gentry County. — Hon. D.D. Reeves, Judge.

AFFIRMED.

E.G. Robison, J.J. Robison and J.W. McKnight, for appellant.

Randolph & Randolph for respondent.

ARNOLD, J.

In this action plaintiff seeks to recover for damages to his motor truck alleged to have been caused by negligence of defendant in a collision between said truck and a touring car owned and driven by defendant.

The record discloses the collision occurred about 9:30 A.M. on March 4, 1928, at the junction of state highways numbered 4 and 33, in DeKalb county, Missouri. At the place of the collision state highway 33 runs north and south, the west half thereof being paved with a nine-foot concrete slab. Highway 4 intersects 33 at right angles, but, coming from the west, it turns into 33, and the two proceeding north are one and the same. Said highway known as No. 4 west of highway 33, proceeds east as a public highway, but so far as the record shows, it is not numbered east of 33. The record shows No. 33 to be much traveled, but No. 4, west of the intersection, is unimproved and not so much traveled. At the time of the collision and for sometime prior thereto, there was maintained a state highway "stop" sign on the south side of No. 4, facing west in plain sight of drivers approaching the intersection from that direction.

At the time in question, plaintiff was driving his 2-ton motor truck on highway 33, along the concrete slab on the west side thereof, approaching the intersection from the north at a speed of about 25 miles per hour, the truck carrying a load of hogs weighing about 200 pounds each. At the same time defendant was approaching the intersection from the west driving his Buick touring car, at a rate variously estimated as fifteen to twenty-five miles per hour. Two men were riding in the cab of the truck with the driver, one seated on the right and the other on the left of plaintiff who was driving. Highway 33 is shown to be sixty feet in width and highway No. 4, forty feet wide at the intersection. The corners at said intersection were rounded, the west road being cut back with a throat one hundred sixty-eight feet in width at each end and running back one hundred feet into highway No. 4. At the east side of the road there was a "cut back" of sixteen feet, thus leaving the intersection sixty feet wide, east and west, and forty feet north and south.

Plaintiff testified his truck arrived and was in the intersection before defendant's car entered therein. Defendant's testimony was the two machines entered the intersection at approximately the same time, so that this is a disputed question in the case. It is undisputed that plaintiff intended to continue on south on highway 33, and that defendant intended to proceed on east. Plaintiff's testimony shows an automobile approaching the intersection from the west cannot be seen for some distance by a driver coming from the north, because of an embankment on the west side of highway 33. Of course the same condition exists as to cars approaching on No. 4 from the west. The collision occurred at or near the center of the intersection. There is some testimony of record that each driver, on seeing the other's car, began to swerve his car, plaintiff to the left and defendant to the right, in an attempt to avoid the collision, but without success. The two cars collided with great force, the result being that both were thrown to the southeast corner of the intersection and lodged against an embankment east of the highway, south of the intersection; both cars were badly damaged, the truck upside down and partly on top of the Buick which was on its side. Defendant was within his car, from which position he was extricated by plaintiff. Plaintiff testified:

"The first words he (defendant) said after the collision took place were, `Help me out.' And I helped him out of there, pulled him out to the side door of his car, got him up out in the road, and he kind of brushed himself off, and looked up at me and he says, `Well, Buddy,' he says, `I seen you coming; I thought I had time to beat you across there, but I guess I didn't.'"

This testimony was not denied by defendant, so far as shown by the record. Plaintiff further testified he did not see defendant's car until an instant before the collision, in which time he swerved his truck to the left, and applied his brakes.

The testimony is somewhat conflicting as to just what portions of the two cars were struck in the collision. Plaintiff and some of his witnesses testified the right fender of the truck collided with the Buick at or near its left front wheel; while defendant testified the Buick was struck near its rear end, and still other witnesses testified that the impact of the truck was near or at the middle of the Buick. The testimony on this point is so indefinite it is impossible to record here a positive statement of the facts of the matter.

The suit was instituted in the circuit court of DeKalb county and by change of venue went to Gentry county where it was tried to the court and jury, resulting in a verdict for plaintiff on his petition in the sum of $1,000, and against defendant on his cross complaint. Motions for a new trial and in arrest of judgment were overruled and defendant has appealed. The petition alleges there was a highway stop sign on highway No. 4 west of the intersection, and that defendant negligently failed to exercise the highest degree of care in the operation of his motor car, and failed to exercise the highest degree of care to keep a vigilant lookout, in that he carelessly and negligently operated his motor car at a high and rapid rate of speed; that he failed to exercise the highest degree of care to stop his motor car before entering said intersection as indicated by the stop sign, and negligently and carelessly disregarded said stop sign; carelessly and negligently failed to yield the right of way to plaintiff, and carelessly and negligently drove and operated his motor vehicle at said time and place so as to cause same and plaintiff's motor truck to come into violent collision, when he saw, or by the exercise of the highest degree of care on his part, should have seen plaintiff's truck was upon said highway, and at or near said intersection, and in a position of peril, and that defendant saw, or by the exercise of the highest degree of care should have seen plaintiff's truck in a position of peril, in time, by the exercise of the highest degree of care, to have stopped or turned aside, and thereby have avoided the collision; but that because of said carelessness and negligence in failing to stop or turn his motor vehicle aside, and because of the carelessness and negligence of defendant in operating his motor vehicle at a high and dangerous rate of speed, and in disregarding said stop sign, and carelessly and negligently failing to yield the right of way to plaintiff's truck, caused said truck to be turned over in a deep ditch, wrecking the same. These allegations of the petition are followed by a paragraph listing the items of damage to the truck. The petition charges five of the hogs being hauled were killed, and were of the value of $78.24. Judgment is asked in the sum of $2464.07.

Defendant interposed a demurrer upon the grounds (1) that the petition fails to state a cause of action upon the specific grounds of negligence alleged, and (2) because the petition while attempting to state a cause of action under the humanitarian rule, or last clear chance doctrine, does not state sufficient facts to constitute a cause of action against defendant on said grounds. The demurrer was overruled and defendant filed answer and cross-complaint which contains, first, a general denial and as affirmative defense pleads contributory negligence, in that (1) plaintiff at the time was driving his truck in a negligent manner and at a high and dangerous rate of speed, without proper regard for the rights of others upon the highway; (2) failure to give signal or warning of his approach; and (3) without yielding to defendant the right of way across the intersection; and (4) driving his truck in a southeasterly direction when approaching said intersection and while thereon, and (5) not slackening his speed, and (6) not having his truck under proper control; and (7) in running defendant down. The answer further alleges that defendant reached the intersection of the highways and was proceeding across the same, and that plaintiff saw, or by the exercise of the highest degree of care could have seen plaintiff driving onto and upon said intersection and in a position of peril in time, by the exercise of the highest degree of care, to have given warning of his approach, or stopped or turned aside; that plaintiff failed to do so, but drove into a collision with defendant's car.

The answer further pleads that plaintiff and defendant in their respective vehicles reached the intersection at approximately the same time and that plaintiff negligently refused to yield the right of way over the intersection "which said act of negligence on plaintiff's part directly contributed to the damages of which plaintiff complains." For further answer and cross-petition defendant alleges plaintiff and defendant reached said intersection at approximately the same time; that defendant proceeded to drive upon and across the same with the intention of continuing on east; that plaintiff approached said intersection negligently and without the exercise of the highest degree of care, without giving warning of his approach, and driving at a high and dangerous rate of speed under the circumstances, and without yielding the right of way to defendant, or slackening the speed of his...