State ex rel. State Highway Commission v. Daigh

Decision Date23 February 1971
Docket NumberNo. 9036,9036
Citation464 S.W.2d 524
PartiesSTATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. John DAIGH, Respondent.
CourtMissouri Court of Appeals

Robert L. Hyder, Ray Conrad, Jefferson City, for appellant.

No appearance for respondent.

TITUS, Presiding Judge.

A westbound Oldsmobile (driven by defendant) collided with plaintiff's eastbound dump truck (driven by its employee, Larry Hurt) on the south side of Dade County Route Z (a two-lane blacktop throughfare), and plaintiff brought this action to recover $1,649.01 in property damages. At the close of plaintiff's evidence, the trial court directed the jury to return a verdict for defendant because, as it opined, plaintiff's employee (and, hence, the plaintiff) was guilty of contributory negligence as a matter of law. No one questions that plaintiff made a submissible case against the defendant--the sole point upon this appeal by plaintiff is whether the question of its contributory negligence and the issue of causation should have been decided by the jury.

Plaintiff's driver Hurt was the only witness who testified to the mattes which concern us here. He stated that at the time of the daylight accident plaintiff's truck was in good operating condition except the 'horn didn't work' and hadn't worked for the previous three or four days. Hurt recounted that when the truck crested a hill just west of the casualty site it was traveling 30 to 40 miles per hour and as he looked eastward from this point he espied defendant's approaching Oldsmobile 300 to 400 yards away 'going over fifty.' The truck driver immediately commenced to slow the truck's speed, 'I tried to stop and I crowded my side of the road as much as I could' because he saw that the Oldsmobile was drifting southward across the center line 'angling my way * * * at a steady angle.' When 100 to 300 yards separated the two vehicles, Hurt 'definitely' observed that defendant was looking south out the opened left window of the automobile 'into a field' and was, or appeared to be, oblivious of the truck and the fact that the Oldsmobile was on a collision course with it. Hurt continued his surveillance of the oncoming automobile until the vehicles were 50 to 100 yards apart, at which time Hurt turned his gaze toward the south ditch for which he was headed in an effort to elude the Oldsmobile. The impact occurred when plaintiff's truck was still in motion at an unstated speed and traveling partially upon the south highway berm.

That part of Hurt's cross-examination testimony which prompted the court to direct the verdict, is as follows:

'Q If you had had a horn, would you have sounded it? A Yes, I would have. Q Those horns are pretty loud on those trucks, aren't they? A Yes. Q Had you had the horn in operation on your truck, had it been working properly when you first saw the driver of the automobile looking south out of his window, he would have had sufficient time, would he not * * * (i)n normal operation of his automobile to have pulled it back on his side of the road? A Yes. Q As a matter of fact, he would have had sufficient time, the last time you saw the automobile, to have pulled it back on his side of the road had the horn been sounded * * *? * * * A Yes, he would have.'

Whether plaintiff was contributorily negligent was a jury question unless, from all the evidence and its reasonable inferences viewed in the light most favorable to plaintiff, it can be said that the only reasonable conclusion is that plaintiff was negligent and its negligence was a proximate cause of its damages (Adkins v. Boss, Mo., 290 S.W.2d 139, 140(1)), and '(t)he rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing, and efficient cause of the casualty, and absent which the casualty would not have happened.' Howard v. Scarritt Estate Co., 267 Mo. 398, 402, 184 S.W. 1144, 1145(2); McConnell v. Pic-Walsh Freight Company, Mo., 432 S.W.2d 292, 297(7, 8); Robinson v. Gerber, Mo.App., 454 S.W.2d 933, 936--937; Leek v. Dillard, Mo.App., 304 S.W.2d 60, 65.

Our references to statutes herein are to RSMo 1969, V.A.M.S. Subsec. 1, § 307.170 provides: 'Every motor vehicle shall be equipped with a horn, directed forward, or whistle in good working order, capable of emitting a sound adequate in quantity and volume to give warning of the approach of such vehicle to other users of the highway * * *.' This statute, as well as the common law, also imposes a duty on motorists to sound a warning when necessary for the safety of others and themselves. Robertson v. Scoggins, Mo.App., 73 S.W.2d 430, 434; Robinson v. Ross, Mo.App., 47 S.W.2d 122, 126(8); Miller v. Wilson, Mo.App., 288 S.W. 997, 999(7, 8). As often stated, violation of a statute is negligence per se (Downing v. Dixon, Mo., 313 S.W.2d 644, 650(4)), and while it may be said that plaintiff was negligent in permitting its truck to be operated without a workable horn, or that plaintiff's driver was negligent in not sounding a warning under the circumstances of this case, this does not entirely dispose of the question of plaintiff's contributory negligence. Bracken v. Koch, Mo.App., 404 S.W.2d 201, 204(5). Such negligence would not bar plaintiff's recovery as a matter of law unless an occasion arose under circumstances which would require a horn to be sounded, and the only reasonable conclusion to be drawn from the inability or failure to do so would be that the absence of the warning was a proximate cause of the collision and resulting damages. Henry v. Baker, Mo.App., 419 S.W.2d 486, 490(5).

When plaintiff's driver first observed defendant's automobile encroaching upon his side of the highway 300 to 400 yards away, he had the right to assume and to continue to assume it would be turned back to its own side in time to avoid the collision until he knew, or in the exercise of the highest degree of care should have known, that this would not be done. Until the driver had or should have had such knowledge, no mandatory duty rested upon him to sound a warning or otherwise act to avoid the collision. Wolfe v. Harms, Mo., 413 S.W.2d 204, 212(12); Moore v. Middlewest Freightways, Mo., 266 S.W.2d 578, 582(2). But if plaintiff's driver ever harbored such an assumption, his entertainment thereof was short-lived because 'from the moment' he first saw the Oldsmobile he started procedures to avoid it. In any event, the permissible duration of such an assumption would terminate when the truck driver 'definitely' saw that defendant was not looking ahead and was unmindful of the dangerous situation. At that time the two vehicles were 100 to 300 yards apart, according to plaintiff's driver, and it then and thereafter became the mandatory duty of the truck's operator to do what was reasonably and safely necessary to avert the collision, which included a duty to sound a warning with the truck's horn (Owens v. Acme Oil Company, Tex.Civ.App., 408 S.W.2d 947, 950(1)) that should have been 'in good working order.' § 307.170, supra.

Determining that plaintiff was negligent is relatively simple; the onerous task is deciding whether its negligence was a proximate cause of the accident as a matter of law. The testimony of plaintiff's driver as to what he would have done had the truck been equipped with a workable horn and what defendant could or would have done to avoid the collision had a warning been sounded, was subject to timely objections and motions to strike because the testimony was conclusionary and constituted opinion evidence. 32 C.J.S. Evidence § 450, pp. 87--89. Since, however, the testimony was recited without a single objection from the plaintiff, its probative worth and value was for the jury as the fact trier (Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 607(5); Mayne v. May Stern Furniture Co., Mo.App., 21...

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3 cases
  • Porter v. Iowa Power & Light Co., 1--55720
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...Drackett Products Co. v. Blue, 152 So.2d 463 (Fla.1963), conformed to 153 So.2d 346 (Fla.App.1963); cf. State ex rel. Highway Commission v. Daigh, 464 S.W.2d 524 (Mo.App.1971). In the present case evidence was separately received as to what changes in procedure Crees did institute after the......
  • Derboven v. Stockton, s. 25406 and 25411
    • United States
    • Court of Appeal of Missouri (US)
    • December 20, 1972
    ...a matter of law. Missouri has consistently held that a violation of a statute can be negligence per se. State ex rel. State Highway Commission v. Daigh, 464 S.W.2d 524 (Mo.App.1971). This position is consistent with the majority view in the United States which recognizes that the violation ......
  • Epple v. Western Auto Supply Co., 59683
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    • United States State Supreme Court of Missouri
    • March 14, 1977
    ...v. Childress, 387 S.W.2d 569, 573 (Mo.1965); Nelms v. Bright, 299 S.W.2d 483, 489-490 (Mo. banc 1957); State ex rel. State Highway Commission v. Daigh, 464 S.W.2d 524, 526 (Mo.App.1971). At the time the station wagon crested the hill there was nothing in the reasonable appearances of the ci......

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