Snider v. King

• Decision Date: 02 March 1961
• Docket Number: No. 7908,7908
• Citation: 344 S.W.2d 265
• Parties: Mildred SNIDER, Plaintiff-Respondent, v. Johnnie D. KING, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 265

344 S.W.2d 265

Mildred SNIDER, Plaintiff-Respondent, v. Johnnie D. KING, Defendant-Appellant.

No. 7908.

Springfield Court of Appeals, Missouri.

March 2, 1961.

Richert, Titus & Martin, Joplin, for appellant.

Herbert Douglas, Neosho, Karl W. Blanchard, Herbert Van Fleet, Seiler, Blanchard & Van Fleet, Joplin, for respondet.

McDOWELL, Judge.

This action is by the widow of deceaed, Russell Wayne Snider, for the wrongful death of her husband resulting from injuries received in an automobile accident occurring at the intersection of State Highway 43 and Maple Road, a graveled highway, in Jasper County, Missouri, November 3, 1958. The jury-tried cause resulted in a verdict and judgment for plaintiff in the sum of $10,100. Defendant appealed.

Plaintiff's cause of action is based upon primary negligence in that defendant failed to yield the right of way to deceased, who was traveling on a through highway; failed to keep a proper lookout ahead and laterally for approaching traffic, and particularly for deceased when pulling from an intersecting country road onto a through highway.

The answer is a general denial of negligence.

Under defendant-appellant's assignments of error he raises three issues:

1. The sufficiency of the evidence to support the judgment.

2. The giving of Instruction No. 1.

3. The giving of Instruction No. 2.

The facts are: That Russell Wayne Sinder, husband of plaintiff, was killed in an automobile accident at the intersection of State Highway No. 43 and Maple Road, about 10:00 o'clock, a. m., November 3, 1958. Highway No. 43 is a two lane blacktop road twenty feet wide, which runs generally north and south, but, in the area of the intersection in question, curves slightly to the northeast or to the right for north bound traffic and is moderately down grade at the intersection. Maple Road is a graveled public highway which runs east and west and intersects Highway 43 at right angles. 185 feet south of the center of Maple Road, at its junction with Highway 43, is a 'Y' shaped junction where the north and south highway divides, the right fork being Highway 43 and the left fork known as the Galesburg Road, a graveled public highway. 63 feet west from the west edge of the intersection of Maple Road and Highway 43, Maple Road intersects the north-south Galesburg Road.

On the east shoulder of Highway 43 and 130 feet south of the center of Maple Road is a highway marker designating the blacktopped roadway as Highway 43. There is a stop sign on the north side of Maple Road 31 or 32 feet east of the intersection of that road with Highway 43, intended for observance of west bound traffic approaching the intersection from the east.

Property of the Countryside Bible Church is situated at the northeast corner of the intersection of Highway 43 and Maple Road, lying on the east of Highway 43 and extending north from Maple Road 318 feet; the church building, the residence of Reverend Parr, is 30 feet wide and located about 40 feet south of the north boundary line of the church property, making the south side of the building about 250 feet north of Maple Road. The west side of the building is 334.3 feet east of the edge of Highway 43. The church mailbox is located on the north side of Maple Road an east of the intersection of Highway 43, 425.8 feet and about 250 feet south of the church building near the east property line of the church.

Along the south side of Maple Road and the east side of Highway 43, south of the intersection, is an embankment and field, both of which are higher than the roadways involved. This condition, augmented by the curve and grade of Highway 43, limits the vision of west bound motorists on Maple Road in their view of approaching traffic from the south on Highway 43.

William Franklin Parr testified, by deposition, for plaintiff that on November 3, 1958, he was residing at the Countryside Bible Church property located at the northeast corner of the intersection of Highway 43 and Maple Road; that the church property extends north from Maple Road 318 feet and the church building is 30 feet wide and about 40 feet south of the north line so that the south side of the building is about 250 feet from Maple Road. He stated that the church mailbox was on the north side of Maple Road near the east line of the church property, about 400 feet east of Highway 43. Witness stated that he was familiar with the accident which took place November 3, 1958, about 10:00 o'clock a. m., at the intersection of Maple Road and Highway 43. He stated he went out the back door of the church building and walked towards the mailbox, which was roughly 250 feet from the church; that when he was about halfway to the mailbox he glanced up and saw a man going by in a red stock truck and waved to him; that the man was driving at a moderate rate of speed and he paid no more attention to him because he was looking at the mailbox, expecting an order of hymn books from Ohio; that when approximately half way through the rest of the distance to the mailbox he glanced toward Highway 43 and noticed a dark colored pick-up truck coming around the curve and also noticed the red truck; at the time both trucks were in motion and in full view. He stated his view was more or less obstructed; that the black truck swerved slightly to the east; that he heard no sound of brakes being applied or no horns. There was no impact as though the trucks had struck each other and then the black truck swerved end for end and came to rest on the tip of the church ground. There was no sound of damage and witness stated that he just turned and walked on toward the mailbox; that the man in the red truck stopped on the other side of the intersection, came back and was looking around the truck; that he didn't know the man was there until he called. He stated he walked up to the truck which was on the edge of the church ground and found deceased lying under the back end, stretched out, his head near the housing of the back axle, lying face down. He stated he put his coat under his head so he would not smother and spoke to him but got no answer; that blood was running out of his mouth, nose and ears. Witness testified that defendant parked his truck on the west side of Highway 43 on Maple Road, which was well cleared of the highway. He did not know the exact distance from the highway. He testified there was a stop sign at the intersection of Maple Road and Highway 43 governing west bound traffic on Maple Road; that he did not know whether the red truck stopped before crossing Highway 43; that at the time he was walking toward the mailbox he heard the engine of the red truck accelerate as a car does in low gear. He testified:

'Q. Was that what attracted your attention? A. Well, I didn't look up even at that time. I glanced up a little bit later as I was walking to the mail box and I saw--when I glanced up I saw these two trucks.

'Q. Where was the red truck when you saw it? A. It was somewhere in the process of crossing the road.

'Q. When you say 'crossing the road', which road do you mean? A. Highway 43.

'Q. Was it on Highway 43 when you saw it? A. It was on the road. How far on or how far off, I wouldn't be able to say.

'Q. Did you see the blue or black coloured vehicle at the same time? A. As I glanced up they were both in my vision.'

Witness testified from where he was standing at the time he saw the two vehicles, because of obstructions, that is, an embankment on the east side of the road, a curve on that section and shrubbery on the south edge of the church property, his visibility was cut to about 100 feet. He testified:

'Q. And the hundred feet that you have described is the distance that you could see south of this intersection---- A. Yes, sir.

'Q. --on Highway 43? A. Yes, sir.'

He testified he could not honestly tell the distance between the two trucks at the time he glanced up and both were in his view. He stated: 'I wouldn't be able to say because it was a matter of split seconds.'

Witness said that from the point where he was standing the contour of the land was uphill on Highway 43 as it comes from the south; that as it approaches the intersection of Maple Road it starts on a downgrade and, because of such obstructions to his vision on Highway 43, he could not see the running gear of the truck or the road and was unable to tell whether the wheels of deceased's truck were actually on the blacktop or not. He stated he did not remember whether the day was clear but it wasn't raining and his visibility was good. He gave this evidence:

'Q. Did you see the blue or black truck go off Highway 43 before it reached the Maple Road? A. It swerved over to the east side of 43 just south of Maple Road and flipped across the road and ended on the church grounds headed back south.'

On cross-examination witness testified:

'Q. And you saw the red truck continuing its journey in a westerly direction along Maple Road? A. Yes, sir.

'Q. And was it at that time, sir, that red stock truck was in the process or appeared to be in the process of crossing Highway 43? A. Yes, sir.

'Q. And was it at that same time, sir, that you saw the pick-up truck swerve to its right and go off the east edge of Highway 43? A. There was just a fraction of time before he swerved. He was coming around the curve and I saw both of them but there was just a little time elapsed between the time I saw them and the the time he swerved.

'Q. Let me ask you it again, sir: The red stock truck, sir, was in the process of crossing Highway No. 43 and had started across Highway 43 before the dark blue pick-up truck went into this swerve to the east? A. Yes, sir.

'Q. So that when the red stock truck was actually in the process of crossing Highway No. 43 the dark blue or black pick-up truck would be still south of the point where it eventually swerved off of Highway No. 43? A. Yes, sir.'

Witness testified he observed gravel east of 43 and south of Maple Road had been disturbed...