State ex rel. State Highway Commission v. Beaty

• Decision Date: 23 January 1974
• Docket Number: No. 9292,9292
• Citation: 505 S.W.2d 147
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Bob L. BEATY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 147

505 S.W.2d 147

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v.Bob L. BEATY, Defendant-Appellant.

No. 9292.

Missouri Court of Appeals, Springfield District.

Jan. 23, 1974.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 11, 1974.

Application to Transfer Denied March 11, 1974.

Robert L. Hyder, John H. Gladden, Jefferson City, for plaintiff-respondent.

Bob J. Keeter, Robert W. Schroff, Schroff, Keeter & Glass, Springfield, John M. Belisle, Osceola, for defendant-appellant.

JACK A. POWELL, Special Judge.

In this case, the State of Missouri ex rel. State Highway Commission, sought to recover from defendantBob L. Beaty the sum of $46,317.11 for damages done to a bridge numbered by plaintiff as G--711, and located on U.S. Route 54 in Vernon County, Missouri.The trial by jury was held in Polk County, Missouri, and resulted in a verdict for plaintiff against the defendant in the amount of $27,300.Defendant appeals.

On the afternoon of July 31, 1970, the defendant was driving a 1949 Mack tractor and pulling a lowboy trailer.Loaded on the lowboy trailer was a Caterpillar tractor bulldozer which weighed in excess of 20 tons.The Caterpillar was equipped with a 12-foot blade, and was loaded so as to be centered on the lowboy, with the blade faced toward the front of the Mack tractor.The total length of the tractor-trailer unit was 40 feet.The blade extended out from the trailer on each side and was approximately four feet off the ground.

The bridge involved was 20 feet wide.It was composed of four sections.There was a small section at each end of the bridge, each such section being 42 feet in length.The remaining two sections are referred to as superstructures, with the sides rising higher into the air, and each section being 82 feet in length.Thus, the bridge was 248 feet in length.

The unit driven by defendant was going across this bridge when the incident occurred.Defendant had met a passenger car coming from the opposite direction.The only witnesses of the incident who testified at trial were the defendant and his 12-year-old son.

Defendant states that just as the passenger car was passing he turned his head and it appeared that the car had cleared the dozer blade.'It looked like the dozer blade came out over the top of the trunk lid.'Defendant testifed that the car had passed the blade before he felt the jolt.About all he could see was the back of the dozer 'just looked like the back end was up in the air.'The impact caused the dozer to turn 180 degrees around on the lowboy.

The highway runs generally east and west.Defendant was traveling east.The physical evidence discloses the impact with the bridge to be 50 feet east of the west end of the bridge and on the south side of the bridge.Assuming the dozer blade was 30 feet from the front of the Mack tractor, the front of defendant's unit had traveled 80 feet onto the bridge.The passenger car traveling west had traveled at least 198 feet on the bridge and had cleared the dozer blade at the time of impact of blade with bridge.

The defendant testified that he first saw the bridge when 200 yards to 1,000 feet away.At that time he saw the car coming from the opposite direction.It was at the top of a hill east of the bridge.Defendant was traveling 40 miles per hour.Defendant testified that he started slowing down and the car started slowing down.At this time both vehicles were about 400 to 500 feet from the bridge.There is evidence that each vehicle's lights were blinked.At this time defendant was going about 25 miles per hour, and he then accelerated to 30 to 40 miles per hour.Defendant testified that he was going 20 or 25 when he went onto the bridge and the passenger car came onto the bridge 'right with me.'Defendant was familiar with the bridge as he crossed it about 12 times each week.'Q.Hauling a 12-foot blade, could you have made it across the bridge staying in your lane?A.No. Q. You would have had to get in the center of the bridge to go across?A.Yes.'The car was always on its side of the road.Defendant testified that he thought the car was going to stop.He didn't recall the car ever leaving the highway as it approached the bridge.Defendant told the trooper that it was not 'the car's' fault.

The patrolman testified that the highway was two-lane pavement and 20 feet wide on the bridge.Approaching the bridge from the west, there is sight distance of two-tenths of a mile.There is possibly more sight distance of the bridge from the east.There is a slight curve in the road west of the bridge, and the road runs uphill from the bridge east.The picture exhibits disclose clear visibility for traffic on either side of the bridge for a considerable distance in each direction.

The detailing of the foregoing facts is necessitated by defendant's complaint directed at plaintiff's verdict-directing InstructionNo. 3.This instruction charged defendant with the following acts of negligence:

'First, defendant either:

failed to keep a careful lookout, or knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of a collision in time thereafter to have stopped but defendant failed to do so, and . . ..'

Defendant-appellant contends that the evidence did not support the giving of the instruction.We now consider defendant's position.

Defendant cites Chandler v. Mueller, 377 S.W.2d 288(Mo.1964);O'Neill v. Claypool, 341 S.W.2d 129(Mo.1960), andLevin v. Caldwell, 285 S.W.2d 655(Mo.1956), all pertaining to 'lookout.'In O'Neill v. Claypool, supra, the court held that there was no evidence of the position of the Pontiac at any given time when the jury could have found that defendant could have seen the Pontiac in time to take effective precautionary action.It was not shown that Lillian Claypool did not see the Pontiac at the earliest possible moment.In Chandler v. Mueller, supra, the plaintiff testified in minute detail the course of travel of defendant's car.The court held there was nothing to suggest that plaintiff failed to keep a proper lookout, because plaintiff testified he saw the other car and testified as to its continuous course of travel.In Levin v. Caldwell, supra, Caldwell testified he saw the other car when the front of his car was four to five feet from the intersection.There was no evidence to the contrary.Further, there was no substantial evidence from which a jury could have found that Caldwell could, in the exercise of the highest degree of care, have seen the other car sooner.Hence, a submission on 'lookout' was error.

In the instant case, the defendant first saw the bridge when 600 to 1,000 feet away.At this time, he also observed the other car on the other side of the bridge and certainly well over 500 feet from the east side of the bridge.When the defendant reached a point 400 to 500 feet west of the bridge, he started slowing down.The car was at this time about 400 to 500 feet east of the bridge and was slowing down.Defendant thereupon resumed his speed, and there is no testimony that defendant ever observed the other car from the time it was 400 to 500 feet from the east end of the bridge, until defendant testified he observed the other car enter upon the bridge when defendant's tractor-lowboy trailer entered the bridge.Consequently, the jury could find from such evidence that the defendant failed to observe the car for a distance of 400 to 500 feet, and that if he had kept a 'lookout'defendant would have observed that the car did not stop and defendant could have stopped his vehicle.A driver has a continuing obligation to keep a careful lookout, and the exhibits clearly demonstrate that there was nothing to prevent defendant from observing the car while it traveled this 400 to 500 feet.Clearly, these facts distinguish the instant case from the cases cited by defendant and referred to herein.The basic principles governing lookout are set forth in Jefferies v. Saalberg, 448 S.W.2d 288(Mo.App.1969), among which we find, at page 291:

'Substantive principles of law on which plaintiff's case are founded are here noted.A motorist operating his vehicle on the public highways is under the continuous duty to exercise the highest degree of care at all times and to keep a careful and vigilant lookout for other persons and vehicles on the highway. . . .'(Emphasis ours).

Defendant's observation of the car while it traveled the 400 to 500 feet before entering the bridge was crucial, for defendant takes the position that he could not bring his unit to a stop after both vehicles were on the bridge.Defendant's testimony is sufficient to make a submissible case on 'lookout.'

We now direct our attention to whether or not a submissible case was made on the issue that defendant"knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of a collision in time thereafter to have stopped but defendant failed to do so."

Defendant refers to the case of Greenwood v. Bridgeways, Inc., 243 S.W.2d 111(Mo.App.1951), as authority for the proposition that a driver has no duty to decrease his speed or stop just because he sees another automobile in the street ahead of him.The duty to act would not arise until circumstances would lead him to believe that otherwise a collision would result.Defendant contends that 'the danger of collision was not apparent at the time defendant realized that the vehicles would meet on the bridge.The danger of collision became apparent and should have been apparent to the defendant when the car that he was meeting on the bridge didn't get as far to the right as possible.'Defendant argues that it was then too late to have stopped the vehicle moving at 20 to 25 miles per hour.We believe this argument overlooks the unusual circumstances existing at the time of the accident of which defendant had superior knowledge. ...