Ruediger v. American Bus Lines, Inc.
| Decision Date | 13 November 1967 |
| Docket Number | No. 52755,52755 |
| Citation | 426 S.W.2d 4 |
| Parties | Leroy RUEDIGER, Appellant, v. AMERICAN BUS LINES, INC., Respondent. |
| Court | Missouri Supreme Court |
Gray & Sommers, Charles E. Gray, St. Louis, for appellant.
Strubinger, Wion and Bruke, J. Lloyd Wion, St. Louis, for respondent.
Action for damages for personal injuries arising out of a collision involving a tractor-trailer driven by plaintiff and a Trailways bus owned by defendant, American Bus Lines, Inc., and driven by defendant Vincil Lee Wood. Verdict and judgment for $128,000 were for plaintiff against defendant American Bus, and in favor of defendant Wood, operator of the bus. The trial court sustained American Bus' motion for judgment in accordance with its motion for directed verdict, set aside the judgment and entered judgment for that defendant and, in the alternative, sustained said defendant's motion for new trial. Plaintiff appeals from this judgment and order.
Both motor vehicles were traveling west on Interstate-70, a four-lane highway with two twelve-foot lanes for westbound traffic separated by a median strip from two lanes for eastbound traffic. The collision occurred February 10, 1965, at about 2:00 A.M., approximately one mile west of O'Fallon in St. Charles county when, according to plaintiff, the bus suddenly slowed or stopped, without warning, in its right hand lane as the tractor-trailer was attempting to pass. The right front of the tractor struck the left rear of the bus, causing the tractor to catch fire. According to plaintiff the bus was caused to slow or stop by application of its parking brake through the loss of pressure from an air reservoir tank controlling the parking brake system; he further asserts that a warning device on the bus' dashboard and stop signal lights on the rear of the bus designed to activate automatically on application of the parking brake failed to function. Plaintiff submitted on the theory that defendant was negligent in failing to maintain the parking brake system in operative condition. As a result of the collision plaintiff was rendered unconscious; when he came to, he was on fire in his tractor.
The court set aside plaintiff's judgment and entered judgment for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law; it sustained defendant's alternative motion for new trial on the ground it had erred in giving instruction No. 3, plaintiff's verdict-directing instruction, '* * * because there was no evidence to support the giving of such instruction.'
At the time of the collision visibility was good; the pavement was dry, but the shoulders were muddy. Plaintiff testified that he was en route to his home at Hermann, Missouri, on a return trip from the Stockyards at East St. Louis, Illinois, where he had delivered a load of cattle. Somewhere near St. Peters, Missouri, he started traveling behind this westbound Trailways bus in the outside or north lane of the twenty-four foot pavement. The two vehicles traveled in this position at a speed of 50--55 miles per hour for about ten miles, plaintiff maintaining a distance of 300 to 400 feet between the bus and his tractor-trailer. Deciding to pass the bus, he increased his speed to close the distance before turning out to his left into the passing lane. When he reached a point approximately 50 feet from the rear of the bus, as he prepared to '* * * swing around, to go around it * * *,' he realized for the first time that the bus was stopped or stopping; he 'thought' it was stopped; he 'swerved out' to the left and applied his brakes, his drivewheels (according to the testimony of a state highway patrolman) laying down approximately 60 feet of skid marks beginning in the north lane with the left skid mark crossing the center line into the south lane before impact.
Plaintiff further testified that while traveling behind the bus he had his lights on dim, the light projecting forward approximately 200 feet; that there were no vehicles between him and the bus, and the passing lane ahead was clear and open; shown a picture of the rear of the bus, he counted fifteen taillights, but said that he did not know whether all were on as he followed the bus; that he could tell the difference between taillights and 'stop' lights; that he saw no stoplights '* * * come on on the bus * * *' before impact, and the bus gave no signal that it was stopping; that his tractor-trailer, including its brakes and tires, was in good condition; that under existing conditions the tractor-trailer traveling 50--55 mph could be stopped in about 100 feet; that as he '* * * came up behind the bus * * *' he did not blow his horn, flash his lights, activate his left turn signal, or give any signal that he intended to pass, the vehicles behind him being far enough back they would not be involved in his passing maneuver.
Plaintiff read into evidence certain Interstate Commerce Commission regulations (Title 49-Transportation, Code of Federal Regulations) applicable to installation, operation and maintenance of the braking system on the bus. Those regulations, insofar as pertinent here, are substantially as follows: Section 193.41 provides that every singly driven motor vehicle shall at all times be equipped with parking brakes. Section 193.45 requires that brake tubing and hoses shall be designed and constructed of proper material and so installed as to insure proper continued functioning. Section 193.46 requires that all connections for air and vacuum braking systems shall be adequate in material and consdtruction to insure proper continued functioning; be designed, constructed and installed so as to insure, when properly connected, an attachment free of leaks, etc. Section 193.48 requires that all brakes shall be operative at all times, except in certain instances not applicable here. Section 193.50 requires that every bus equipped as required with air or vacuum reservoirs shall have such reservoirs so safeguarded by a check valve or equivalent device that in the event of a failure or leakage in its connection to the source of compressed air or vacuum, the air or vacuum supply in the reservoir shall not be depleted by the leak or failure. Section 193.51 requires that every bus using compressed air for the operation of its brakes be equipped with a warning signal audible or visible to the driver giving continuous warning at all pressures below a fixed pressure not less than one-half the compressor governor or cut-out pressure; in addition, this section requires that the bus be equipped with a pressure gauge indicating to the driver the pressure available for braking, and requires that the warning device and gauge be maintained in operative condition.
This bus was equipped with two braking systems, both controlled by compressed air from the same reservoir: one, the regular service brake system; and the other, a parking brake system, sometimes referred to as the emergency or safety brake. It was also equipped with (1) a warning device, and a gauge which related the air pressure in the brake system, both on the dashboard; and (2) stoplights on the rear connected with the parking brake system so that when the parking brake was fully applied these lights would be turned on automatically, if properly functioning. The parking brake is applied by the force of an expanding or relaxing spring on brake shoes which, in turn, apply pressure on the brake drums of one axle. This spring is, normally, when the vehicle is in motion, held in a compressed position by the force of air from the air reservoir; that is, it works on a lack of air pressure, whereas the regular service brake works only if pressure is available. In other words, the two systems are so related that when the air pressure goes down to the point where there is not sufficient pressure for application of the service brake, the parking or safety brake is automatically applied, so that the vehicle is never without brakes. The intended or regualr application and release of the parking brake is controlled by a valve or switch on the dashboard. The normal operating pressure in the air system is 90 to 115 pounds; when the air pressure drops to 50--60 pounds the parking brake shoe begins to make contact with, but exerts no pressure on, the drum and the warning device on the dashboard is activated, if functioning properly; when the pressure drops to 35--40 pounds there is a full application of the parking brake and the stoplights are then turned on automatically, if functioning properly.
Harold L. Dobrikin, vice-president in charge of engineering of the company which manufactured the parking brake used on the bus, testified, in part, that the force applied on the parking brake '* * * just prior to its full application is hardly enough to affect the movement of the vehicle, especially if it is in gear and the engine is running * * *;' that it is hardly perceptible; that the bus operator would first notice the movement being affected when the parking brake is fully applied, 'When it suddenly hits the trigger point and then get(s) the full force of the spring.' He further testified that the minimum distance in which the bus could be stopped by application of the parking brake while traveling at 55 mph was 375 feet and that the automatic stoplights would be on for the minimum distance; that the gradual application of the parking brake would make the stopping distance 'Very slightly greater * * *,' because until this brake is fully applied it '* * * would do very little toward decelerating the vehicle * * *.'
Joseph B. Kelems, a member of the state highway patrol, testified, in part, that Vincil Wood, operator of the bus, told him:
Vincil Wood testified that he left the St. Louis Terminal driving this bus at...
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...The fact that the accident occurred does not require a finding that decedent failed to look at any particular time. Ruediger v. American Bus Lines, Inc., 426 S.W.2d 4(10) (Mo. banc 1967). Where there is no direct evidence on the issue, the deceased is clothed with the presumption of due car......
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