Robertson v. Scoggins

• Citation: 73 S.W.2d 430
• Decision Date: 21 June 1934
• Docket Number: No. 5345.,5345.
• Parties: ROBERTSON v. SCOGGINS.
• Court: Court of Appeal of Missouri (US)

73 S.W.2d 430

ROBERTSON v. SCOGGINS.

No. 5345.

Springfield Court of Appeals. Missouri.

June 21, 1934.

Rehearing Denied July 30, 1934.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Action by Rachel Robertson, a minor, by her guardian and curator, R. O. Toole, against Leslie Scoggins. Judgment for plaintiff, and defendant appeals.

Affirmed.

Orville Zimmerman, of Kennett, and James J. Seeley, of St. Louis, for appellant.

Elbert L. Ford and Bradley, McAnally & Bradley, all of Kennett, for respondent.

ALLEN, Presiding Judge.

Plaintiff, a minor and widow of Herschel Robertson, deceased, by her guardian and curator, R. O. Toole, filed her petition in this cause in the circuit court of Butler county, on November 11, 1932.

The trial was had at the January term, 1933, of said court, resulting in a verdict for plaintiff, in the sum of $5,000, from which defendant appealed to this court.

The deceased resided in Dunklin county. He was struck and killed by a truck driven by appellant, on May 18, 1932, on Highway 25, in Dunklin county. Appellant resided in Poplar Bluff and on the day of the death of deceased was hauling gravel, to a point on said highway, a short distance south from where deceased was struck and killed.

Appellant was using his own truck, hauling gravel for the Energy Coal & Supply Company, at Poplar Bluff, at an agreed price per cubic yard. The company was an original codefendant, but a demurrer offered by it, at the close of plaintiff's evidence, was sustained, and the cause proceeded against appellant, eliciting the following facts:

At about 10:30 a. m. on the day deceased was struck, he and his brother, Cecil, were together in a two-horse wagon, driving south on Highway 25, stopping in front, or nearly so, of what is referred to in the evidence as the Trobaugh Place, which is on the west side of the highway. The team and wagon were stopped on the west shoulder of the highway, and at the east end of a board bridge, leading west into the east side of the Trobaugh Place. The bridge was about 12 feet wide north and south by about 17 feet in length east and west. The horses faced south along the east end of the bridge. Their heads were about 2 feet north of the southeast corner of the bridge. The head of the horse next to the pavement was about 2 feet west of the west side of the pavement. The left rear wheel of the wagon was on the pavement from 2 to 4 inches, while the left front wheel was off of the pavement or nearly so.

Cecil, brother of deceased, remained in the wagon, while deceased got out and walked across the bridge, on to the Trobaugh Place, to a pump driver lying some 20 to 30 feet west of the west end of the bridge.

Witness McAnally was with the deceased, who put the pump driver under his right arm, and with a Stilson wrench in his left hand, started east to the wagon. He walked east, across the bridge, and on to the shoulder of the road, in front and about 2 or 3 feet south of the left horse's head, to about the edge of the pavement. McAnally accompanied him, stopping a little south of deceased. At about the west edge of the pavement they paused, and after a few words, McAnally turned south and walked some 3 to 5 steps, before deceased was hit by defendant's truck.

Defendant approached from the north, driving a 1929 Chevrolet truck, loaded with about 5,500 pounds of gravel. The truck was equipped with a steel and wooden dump bed, used for hauling gravel. The bed was about 71 inches long, 58 wide, and 26 deep, and was located 12 to 14 inches to the rear of the cab, which was provided with a glass windshield. The glass in the upper part of the doors was either out or down. The truck, alone, weighed about 3,600 pounds, and was in good condition. The defendant said that when about 150 yards north of it, he first observed the wagon of deceased, standing on the shoulder of the west side of the road, and that he then saw a man at about the west end of the bridge; that the man had something under his arm and was walking toward the wagon; at the wagon he turned south. That after the man reached the horses he saw him no more until he was dead.

Defendant said that he was driving from 20 to 25 miles per hour. That his rear tires were not sufficient to stand up under a load and that he was protecting himself. That when he came to within 10 or 12 feet of the wagon he turned to the left enough to clear the east horse, thinking that he might turn his head toward the truck as it passed. That he thought he turned enough to the left to clear the horse's head, but that it did not move. That as he started to pass the team and did pass it, he saw no man standing on or at the edge of the concrete. That after he passed the wagon and team he heard a noise like metal rattling on the concrete; that he stopped to see what it was, but did not know that anybody had been hurt until he got out of the truck and started back. That some one called to him to get a doctor and he went on about a quarter of a mile down the road to get one. That the glass windshield of the truck was clean and he had no glass in the doors.

He said: "When I first saw the man he was coming toward the bridge or might have been a step or two on it, going east. When I was about 150 yards north of the wagon I saw him walking toward the bridge and I saw him continue on across the bridge from that point, on toward the team. He was just about ready to step off of the bridge the last time I saw him."

A number of the witnesses stated that defendant gave no warning of his approach either by sounding the horn or otherwise. Upon this question the defendant was silent. No witness who testified saw or heard the defendant's truck, as it approached.

Cecil, brother of deceased, accompanied him on the day of the accident, but remained in the wagon while deceased went after the pump driver. He said that they stopped the wagon at the east end of the bridge on the west shoulder of the highway. That the heads of the horses were about 2 feet north of the southeast corner of the bridge. That no part of the left or lead horse was on the concrete. That the left rear wheel was probably on the edge of the concrete some 2 to 4 inches, or maybe was just on the shoulder a fraction. That the left front wheel was off the pavement. That the left front foot of the lead horse was about 2 feet west of the edge of the concrete. That witness McAnally crossed the bridge with deceased to get the pump driver and wrench. That deceased carried the pump driver back under his right arm, and the wrench in his left hand. That they came straight back across the bridge. McAnally was about 2 steps in front of deceased, and to the right of him, as they crossed the bridge, coming back east. They went in front of the horses, stopped, and spoke a few words with each other. Deceased was then about 2 feet in front of the heads of the horses. McAnally turned around and walked off south. Deceased was looking down toward the wrench. They had stopped just at the edge of the pavement. He did not know how close the truck passed to the west side of the concrete where deceased was standing. When deceased was struck he jumped out of the wagon and started picking him up. The pump driver was lying about 4 feet south of him on the shoulder. Deceased fell with his head toward the east; fell on his hands and knees, but all of his head was not on the concrete. He saw no dents or abrasions on the fender, but did see a dent on the right running board and some hair and blood on the right-hand corner of the truck bed, down low, near the bottom. That while standing the deceased had the solid or heavy end of the pump driver in front of him. That the shoulder of the road from the concrete over to the bridge was about 4 feet wide, and a ditch was immediately west of the shoulder.

Jimmie Trobaugh testified that he examined the tires on defendant's truck and their tracks leading up to and passing the wagon of deceased. That he could distinguish the particular tracks of the truck and that there were at the place of the accident no other tracks or tread like those of the defendant's truck. That the tracks of defendant's truck showed in the dust or gravel that had been previously thrown on to the concrete; that some 20 or 30 feet north of the wagon the truck had swerved to the left, after which it "whipped back to the right side," to something like 2 feet in front of the horses. That there was blood on the edge of the pavement about 8 or 9 inches from the west side and 2 to 3 feet south of the horses' heads.

Omitting the formal parts of the petition, its substance, so far as it relates to the evidence and instructions given at the trial, is as follows:

VI. That when plaintiff's husband returned near said team and wagon, after obtaining said pump driver, he had the heavy end under his right arm, and the wrench in his left hand. That he stopped about ____ feet in front of the team, facing east and was standing on the paved portion of said highway and within about 6 inches of the west side. That at said time defendant was approaching the wagon and team from the north, driving a truck heavily loaded with gravel. That defendant approached said wagon and team, driving on the right-hand side of said highway, at a speed of 35 to 40 miles per hour; and that defendant drove said truck so close to said wagon and team that said truck struck, with great force, the end of said pump driver, extending to the front of plaintiff's husband, thereby throwing and hurling plaintiff's husband with great force and violence, at and against said truck, crushing the left side of his head and thereby killing him.

VII. That plaintiff's husband, while exercising due care on his part, was struck and killed in the manner aforesaid and that his death was directly caused and occasioned by the negligence of the defendant, said negligence being as follows:

(a) That the defendant...