Smith v. Producers Cold Storage Co.
| Decision Date | 03 April 1939 |
| Docket Number | No. 19482.,19482. |
| Citation | 128 S.W.2d 299 |
| Parties | SMITH v. PRODUCERS COLD STORAGE CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Macon County; Harry J. Libby, Judge.
"Not to be published in State Reports."
Action by Vern Smith against the Producers Cold Storage Company for damages for personal injuries suffered in automobile collision. From a judgment on a verdict for plaintiff, defendant appeals.
Affirmed.
Drain & Osburn, of Shelbyville, Clark, Boggs, Peterson & Becker, of Columbia, Geo. N. Davis, of Macon, and E. M. Jayne, of Kirksville, for appellant.
W. E. Stewart, of Edina, and Waldo Edwards, D. L. Dempsey, and Wm. Van Cleve, all of Macon, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5000.00 and defendant has appealed.
Plaintiff received his injuries on the 3rd day of August, 1937, while riding in a truck owned and operated by one Leo Ranier, when it collided with another truck, owned by defendant, and being operated by its driver and agent, one L. C. Wilt. The collision occurred at the bottom of a hill, the crest of which lay 790 feet toward the east, there being a decline or elevation of 5 feet in that distance. The road at the place of the collision is 31 feet wide with a paving 19 feet in width in the center thereof described as "blacktop."
Shortly before the collision one Shoemaker, with his wife and son, was driving west and had stopped near where the collision afterwards took place to assist one McSorley, whose car had skidded off of the road into a ditch on the south side thereof. The McSorley car was headed in a northeasterly direction. Before his car could be returned to the road Wilt came along driving easterly with defendant's truck. Wilt stopped and two chains were fastened together, one in the possession of Wilt and the other owned by Shoemaker. One end of the chain so made was attached to the front of defendant's truck and the other to the front of the McSorley car and Wilt backed the truck toward the northeast and pulled the McSorley car out of the ditch. Wilt stopped his truck and headed west and about 1½ feet north of the center line of the highway. The chain was unhooked and McSorley proceeded on toward the east, intending to turn his car around and head back in a westerly direction so as to continue on his original course. When the McSorley car reached a point about 150 to 225 feet from defendant's truck the Ranier truck, going west, passed it and ran into the rear of defendant's truck. Ranier was looking ahead and when he first saw defendant's truck he swerved his truck to the left in an effort to miss it. The hood of his truck cleared defendant's truck but his truck collided with the southeast (left rear) corner of the bed of defendant's truck and at a point, on his own truck, where the windshield joined the cowl.
Ranier had been driving his truck at a rate of speed of 30 to 35 miles per hour and did not slacken his speed prior to the collision. There were four people riding in the front seat of the Ranier truck. Ranier, weighing 220 pounds was driving. Archie Clemison was riding in the center. Harold Upshaw was on the outside, or north side, and plaintiff, Smith, was riding on Upshaw's lap. All of them were full grown men and were out for a pleasure ride, having no particular destination.
All of the occupants of the Ranier truck testified with the exception of Upshaw. Each of those who testified stated that he was looking ahead from the time the Ranier truck passed the McSorley car until the time the impact occurred and that there was no obstruction, either physical or atmospheric, other than the darkness of the night, to obstruct their vision. Ranier testified that the lights on his truck were extra good lights. Ranier and Clemison testified that they were right upon defendant's truck before they saw it. Plaintiff testified that he did not see defendant's truck until just before it was struck; that he estimated the distance between the two trucks to be 15 to 25 feet at the time he first saw defendant's truck. These three all testified that defendant's truck did not have any light burning upon it. They also testified there was no obstruction on the south side of the pavement at the time of the impact to prevent the free and unobstructed passage of a vehicle on the blacktop pavement to the south of the defendant's truck.
The evidence shows that it had been raining earlier in the evening; that it was not raining at the time of the collision but the pavement was wet. However, there was no fog, atmospheric or physical obstruction of any kind between the two trucks as the Ranier truck came over the top of the hill 790 feet distant from the place of the collision. There was testimony, however, that it was a very dark night. Wilt, testifying for the defendant, stated:
Defendant's truck was black in color. It was loaded with egg cases and chicken coops, the latter being to the rear of the former, obscuring the view of them from the rear. The body of the truck consisted of a platform, upon which were the egg cases and the chicken coops, and a cab in front. According to defendant's evidence the cases and coops were made of cottonwood and were unpainted. They were light in color but had been exposed to the weather and had become slightly darker than when new. How dark they were is not directly shown, (some of the photographs introduced in evidence show them dark and others light) but owing to the fact that they were not seen by the three parties in the Ranier truck until they were right upon them, it may be inferred that they were of a dark color.
Ranier and Clemison testified for the plaintiff. Ranier stated that to the best of his recollection, when he passed the McSorley car, he dimmed the lights on his truck but turned them to normal immediately thereafter.
Defendant's evidence was to the effect that the Shoemaker car was standing upon the pavement with only its parking lights on and headed west and about 40 feet west from where defendant's truck was located at the time of the collision; that Shoemaker was in the act of entering his car on its south side and that his son was putting away the chain on its north side.
Defendant's witness, McKenzie, was a passenger in the McSorley car, but he waited at defendant's truck for McSorley to turn around. He testified that, as the Ranier truck approached, he went 35 or 40 feet to the rear of defendant's truck and attempted to flag it down with a white handkerchief, but that the occupants paid no attention and that he got off to the south of the road in order to escape injury.
Wilt, testifying for the defendant, stated that the collision occurred about a half a minute after the McSorley car left and went east to turn around; that immediately before the collision he was engaged in putting his chain in the tool box on the truck located on the south running board and, while so doing, he saw the lights of the Ranier truck coming from the east; that he thought if the truck passed by the side of his truck it would probably strike him so he ran around toward the front of his own truck; that he was just getting in front of his truck when it was struck. All of the occupants of the Ranier truck were thrown from the truck to the pavement. At least three of them were injured. Wilt testified that after the collision he went around to help them.
The three occupants of the Ranier truck, who testified, stated that they saw no one around defendant's truck prior to the collision or attempting to flag the Ranier truck.
There was testimony on the part of the defendant, that before the collision occurred the lights on defendant's truck were all on, which included two headlights, a tail light, and a clearance light just above the tool box.
On cross-examination, all three occupants of the Ranier truck were asked several direct questions as to how far they could see ahead as they came over the top of the hill. Some of these questions went to the matter as to how far an "object" could be seen and others, how far an object, such as defendant's truck, could have been seen. Ranier and Clemison testified that they were unable to answer these questions. Ranier testified that the lights on his truck would reveal an unlighted object, such as a truck, on the road, under the conditions obtaining that night, for two hundred to three hundred feet. that if he could have seen an unlighted object on the highway two hundred or three hundred feet away, he could have seen it more plainly one hundred fifty feet away.
Plaintiff testified that he first became aware of defendant's truck "just before we hit it." When he was asked whether the lights on the Ranier truck "would reveal an unlighted object on that road, such as a truck, for a distance of 100 feet", he answered, he did not know. His attention was called to his testimony in a former trial of the case, at which he was asked: .
He was then asked:
Ranier testified that he could have...
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