Rooney v. Lloyd Metal Products Co.

• Court: Missouri Supreme Court
• Writing for the Court: MICHAEL F. GODFREY; SEILER, P.J., and HOLMAN; BARDGETT
• Citation: Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561 (Mo. 1970)
• Decision Date: 21 October 1970
• Docket Number: No. 1,No. 54468,54468,1
• Parties: James S. ROONEY, Respondent, v. LLOYD METAL PRODUCTS COMPANY, a Corporation, and Richard Chestnut, Appellants

Page 561

458 S.W.2d 561

James S. ROONEY, Respondent, v. LLOYD METAL PRODUCTS COMPANY, a Corporation, and Richard Chestnut, Appellants.

No. 54468.

Supreme Court of Missouri, Division No. 1.

Oct. 21, 1970.

Lyman Field, Clay C. Rogers, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent.

Lowell L. Knipmeyer, John A. Borron Jr., and Knipmeyer, McCann & Millett, Kansas City, for appellants.

MICHAEL F. GODFREY, Special Judge.

Plaintiff in his personal injury and property damage action obtained verdict and judgment against defendants in the sum of $50,000 for personal injuries and $6,873.71, voluntarily remitted by plaintiff to $4,800, for property damage, totaling $54,800. After posttrial motions were denied defendants have appealed assigning as error certain specifications which hereinafter will be considered. The parties here will be designated as they were in the trial court. Since defendants strenuously contend that plaintiff was guilty of contributory negligence as a matter of law this contention, in addition to the jury verdict, requires a detailed recital of the facts involved. We must consider the evidence in the light most favorable to plaintiff, giving him the benefit of all reasonable inferences. Herr v. Ruprecht, Mo., 331 S.W.2d 642, 645(1), 649(10); Slaughter v. Myers, Mo., 335 S.W.2d 50, 51(1); Brubaker v. Moore, Mo., 432 S.W.2d 216, 217(1); Thompson v. Byers Transportation Company, 362 Mo. 42, 239 S.W.2d 498, 499--500(1--4), (5). As thus considered, it appears that this automobile-truck collision occurred on interstate highway I--35 and I--29, a designated federal interstate highway system in Kansas City, Clay County, Missouri. This highway at point relevant here, runs in a northward-southward direction, is a three-lane highway going north and three-lane highway going south separated by a medial strip.

The northbound three lanes of this concrete highway measure 36 feet wide, and each lane is 12 feet wide and divided into clearly marked lanes for traffic. For practical purposes this highway going north is slightly upgrade and straight with the incline from bottom to crest of hill measuring about a mile and a half. Further north beyond the crest of this hill about two-tenths of a mile the highway divides, the east or outside lane turns right or northeast towards Liberty and Des Moines and the inside lane turns northwest towards St. Joseph and Maryville and a motorist traveling north may go either way from the center lane of traffic. The speed limit on this section of the highway is 70 miles an hour maximum and 40 miles an hour minimum for motor vehicles and 60 miles an hour maximum and 40 miles an hour minimum for trucks with posted speed limits being 70 miles per hour maximum and 40 miles per hour minimum.

The collision occurred on October 27, 1966, at about 9:00 p.m. on I--29 and I--35 in the center northbound lane between Armour Road and Russell Road about half-way up the hill. The night was dark, the weather clear and pavement dry.

Plaintiff drove his 1965 Chrysler Imperial north out of Kansas City on I--35. His automobile was in good condition, the headlights on low beam were working and illuminated 150 to 225 feet ahead of his car. As he started up the hill he was driving in the right-hand outside or slow-traffic lane at a speed of 50 to 55 miles per hour. There were some cars ahead of him in that lane and as he gained on them he could see the taillights on some of these cars and the rear lights of a car near Russell Road a quarter to a half mile away. He increased his speed to 55 to 60 miles per hour and pulled into the middle lane and passed one of the cars. As he was passing the second car he saw the headlights of the car he had passed in his rear-view mirror. He has just passed the second car and was not far ahead of it when for the first time he saw a 'large dark object' in front of him in his lane about 200 feet away. Realizing he was gaining on it 'and in just that fraction of a second (snapping fingers) I, of course, put on my brakes for all I was worth.' He attempted to turn left, the right-hand lane being occupied by traffic, but slid sideways into the rear of the unlighted trailer at an angle. The trailer was moving much slower than he, estimated at 10--15 miles per hour with no lights burning that were visible from the rear. He was traveling between 35 to 40 miles per hour at impact. The impact was violent and both vehicles proceeded down the highway some distance, about 167 feet, before stopping. After the collision the truck driver, defendant Chestnut, said he was barely creeping trying to get up the hill as he had a 33,000 pound load. In response to a question as to what he was doing out there without lights, he stated he didn't know. Plaintiff sustained substantial injuries which hereinafter will be considered and his automobile was demolished and sold for salvage.

Defendant Chestnut, admitted agent and employee of defendant Lloyd Metal Products Company at the time and place involved, testified that he was driving a 1955 International tractor 190 attached to a bright red Lufkin flatbed trailer carrying a 28,000 pound load of coiled steel wire, with overall weight of load and vehicle of about 50,000 pounds. As he started up the hill he was in the middle lane and the accident occurred halfway up the hill. Cars were passing him on both his right and left and he was the slowest moving vehicle on the road going up the hill. Traffic was moderate and he intended to turn left at the bifurcation located two-tenths of a mile beyond the crest of the hill to go to Maryville. He could have changed lanes without creating a hazard. It was not necessary for him to be in the middle lane in order to turn. He was unaware that a car had struck his truck until he brought it to a stop. The impact felt like a 'push' or a 'surge of power' and he had no idea what caused it. The bar in the middle of the bumper of the trailer was knocked off by the impact.

Jeanne A. Sexton testified that she was a passenger in the front seat of a car, driven by her daughter Terry up the hill at 40 to 45 miles per hour in the outside lane. The plaintiff's automobile, with its headlights burning, passed them in the middle lane going about 50 to 55 miles per hour, slightly faster than they were traveling. After the plaintiff passed them, the driver of her car started to pull out into the middle lane to pass the car ahead of them and got about halfway into it when the collision occurred. They had started to pass a car ahead of them and pulled back before plaintiff passed them and the witness did not see lights on the rear of the trailer later struck by plaintiff's automobile. She didn't see a thing in the middle lane and after the collision she did not see any lights on the rear of the trailer. After the collision she asked the defendant truck driver why he was driving that truck up the middle lane with no lights and he responded that he didn't know he didn't have lights. When asked by the witness as to why he was stopped he said he was not stopped but was moving around 5 miles per hour. There were small yellow lights on the side of the truck which were not visible from the rear of the truck. This witness thought that if plaintiff had not struck defendant's trailer the automobile in which she was riding would have collided with it. The automobile she was in stopped just a few feet from plaintiff's automobile. She never did see the truck-trailer prior to the collision.

Theresa Sexton, the driver of the automobile, testified that as she proceeded up the hill going about 45 miles per hour plaintiff passed her going about 50 to 55 miles per hour, and shortly thereafter she started to pass the automobile ahead of her and pulled into the center lane when she saw 'sparks and everything' and she realized there was a collision ahead of her. This witness was intending to pass the automobile ahead of her when she saw plaintiff begin to pass her. Neither before plaintiff passed her, nor afterwards and prior to the collision did this witness see any taillights in the center lane ahead of plaintiff's automobile. Nor did she see any vehicles on the highway ahead of plaintiff's automobile. After the collision she testified there were no lights burning on the rear of the trailer. She was able to bring her automobile to a stop before striking rear of plaintiff's automobile. She also testified that in response to a question put by her mother Jeanne Sexton to the defendant Chestnut as to why he didn't have any lights on, the response was that the latter thought they were on. Asked why he was stopped the defendant replied that he was just barely creeping trying to get over that hill. She testified plaintiff's automobile had its front lights burning. This witness stated her car made skid marks in attempting to stop. She also testified that there were no other cars in either the middle or right lane between her automobile and plaintiff's automobile at the time of impact. She saw the brake lights on plaintiff's automobile come on and knew something was wrong. There were at least two or three vehicles going up the hill in the right-hand lane at about this same time and place.

Police Officer Charles Keller arrived at the scene shortly after the collision and measured 89 feet of overall skid marks left by the plaintiff's automobile.

Police Sergeant Robert McKinney testified on behalf of defendants that the 89 feet of overall skid marks left by plaintiff's automobile would mean 79 feet of actual skid. This witness testified to road tests performed by him to determine the coefficient of friction, a factor needed to determine speed from skid marks. He stated that the overall stopping distance, including 3/4 of a second reaction time and braking distance of a vehicle traveling at speed of 55, was approximately 195.5 feet, and at 60 miles per hour it approximated 226 feet. At the speed of 55 miles per hour, after the...