Steele v. Goosen, 47265

• Decision Date: 14 December 1959
• Docket Number: No. 47265,No. 1,47265,1
• Citation: 329 S.W.2d 703
• Parties: Samuel Guy STEELE, Plaintiff-Appellant, v. Claus Herman GOOSEN, Defendant-Respondent
• Court: Missouri Supreme Court

Page 703

329 S.W.2d 703

Samuel Guy STEELE, Plaintiff-Appellant, v. Claus Herman GOOSEN, Defendant-Respondent.

No. 47265.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1959.

A. W. Landis, West Plains, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Donald J. Hoy, Springfield, for appellant.

Fred F. & Robert L. Wesner, Sedalia, and William J. Cason, Clinton, for defendant-respondents Claus Herman Goosen.

DALTON, Judge.

Plaintiff's petition contained three counts wherein he sought to recover a total of $78,000 for personal injuries, property damage and for loss of services of plaintiff's wife, all as sustained in a collision between the automobiles of plaintiff and defendant. Defendant filed a counterclaim for $15,475 for personal injuries and property damage sustained in the same collision. The court on motion dismissed the third count of plaintiff's petition for property damage and plaintiff settled the second count for loss of services. Verdict and judgment were for defendant on the first count of plaintiff's petition and for plaintiff on defendant's counterclaim. Both parties have appealed but defendant has not perfected his appeal.

The collision occurred about 10:30 a. m., on December 22, 1954, on U. S. Highway No. 65 south of Lincoln in Benton County. The highway extends north and south and is paved with concrete 18 feet in width. It is straight and nearly level, with a slight upgrade to the north. A dip in the highway begins some 900 feet south of the point of collision, and about 1/4 mile south 'a car goes out of sight' of a person at the point of collision. The weather was clear and the pavement dry. Plaintiff was driving his 1954 Cadillac north on the east side of the pavement at a steady speed of 50-55 miles per hour. The car had been driven a few months and its power brakes, steering gear and horn were in good operating condition. According to plaintiff, there was no fog and visibility was good. For a number of miles the plaintiff had been driving 400 to 500 feet behind a northbound tractortrailer truck.

As plaintiff was driving north, the defendant was driving his 1946 Plymouth (with a small 5 foot trailer attached) south on the west side of the same highway. Defendant was intending to turn left into the Wischmeier private driveway on the east side of the highway. When defendant reached the vicinity of the driveway, he saw southbound traffic behind him, as well as northbound traffic approaching from the south, so he pulled off the concrete and onto the west shoulder of the highway opposite the driveway entrance and waited for the traffic to pass. Defendant testified that his car windows were up and 'the windshield (sic) going.' He had driven through some for that morning, but 'it was not the same' as when the collision occurred. He had his lights turned on dim, having turned them on when he left his home. There was fog on the highway to the south 'towards the holler,' when he stopped on the west shoulder. He could see approximately 200 feet to the south, 'something in the neighborhood of that as near as I could get at it.' Defendant offered several witnesses who testified to the presence of fog on the highwat south of the point of collision and they said the view in that direction was limited to approximately 200 feet.

When defendant stopped on the west shoulder of the highway, he saw a large truck approaching from the south and he waited for it to pass. When it passed, he carefully looked both north and south and saw no traffic approaching from either direction. He immediately gave a hand signal for a left turn and began the gradual execution of a left-hand turn, straight across the highway, to enter the Wischmeier driveway. He did not see plaintiff's automobile approaching at any time before the collision. The collision occurred when the front bumper of the Plymouth was just off the east side of the concrete slab and at a time when defendant's automobile and trailer extended completely across the concrete highway. Perhaps 3 or 4 seconds elapsed from the time he started until he crossed the center line of the highway. There was a drainage device on each side of the highway a short distance south of the point of collision. These devices extended across the respective shoulders of the highway and the spillways were about 8 feet wide at the edge of the slab, were about 4 inches deep and sloped toward the ditches on the sides of the highwat.

As stated, the plaintiff was driving 400 to 500 feet behind the mentioned 'big truck.' He further testified that he saw defendant's car stopped on the west shoulder of the highway as the 'big truck' was even with or beyond defendant's car. There was no fog present and no obstruction of any kind on the highway to prevent plaintiff from seeing defendant's car, or to prevent defendant from seeing plaintiff's car, since the road was straight and nearly level for a quarter of a mile, and plaintiff saw defendant's car 'at all times.' When parked, it looked like the left front wheel was on the pavement. At that time defendant had given no signal whatever of any intention to turn left. Later, plaintiff saw the hind wheels of defendant's car 'dig in' and 'spin,' but he didn't connect that with an intention on defendant's part to cross, rather than to proceed south on the highway. 'Just seconds after' the 'big truck' passed defendant's car, plaintiff recognized that defendant 'was moving up slow' into defendant's own southbound lane. Plaintiff was then possibly 250 feet south of defendant's car and he put his foot on his brakes. When plaintiff was from 150 to 200 feet south of defendant's car, and while defendant was still in the southbound lane, the defendant made 'a short turn * * * pulled right over across the center of the road and pulled across in front of me.' No signal was given by arm, horn or light of an intention to cross to the east side of the highway. The first notice plaintiff had of a left turn was when defendant 'just turned right into my part of the lane * * * right up in front of me.' When plaintiff applied his brakes they took hold immediately and 90 feet of skid marks were left on the pavement. Plaintiff did not swerve until about within 2 feet of the point of collision. He did not sound his horn. Plaintiff estimated defendant's speed in crossing the northbound lane at 10 to 15 m. p. h. The collision occurred when defendant's front bumper was 8-12 inches east of the east edge of the concrete.

As admissions against interest, defendant offered parts of plaintiff's deposition that he was approximately 500 feet behind the 'big truck' and saw defendant's car from a distance of 600 to 700 feet, and before the 'big truck' reached defendant; and when within possibly 300 feet, or 250 feet of defendant, the plaintiff 'for safety precaution * * * put on the brakes,' as defendant's car started to move; and that plaintiff began to apply his brakes 250 feet south of defendant's car, when defendant's car occupied and blocked 25% of the northbound traffic lane. Plaintiff was within 250 feet of defendant's car when defendant obstructed plaintiff's portion of the road and plaintiff first started applying his brakes for safety sake, but not enough to skid. When defendant's bumper was 18 inches from the east edge of the pavement and plaintiff was 200 feet away, the plaintiff first applied his brakes with the intention of stopping.

Defendant also offered evidence to show that, including reaction time, at 50 m. p. h. plaintiff's car could have been stopped in 181 feet and at 55 m. p. h. in 214 feet. Both plaintiff and defendant sustained serious injuries.

Plaintiff's Instruction No. 1 submitted a finding of defendant's negligence in driving from the west shoulder onto the highway and into the path of plaintiff's automobile when plaintiff's automobile was approaching 'so close as to constitute an immediate hazard' and at a time when the highway 'was not sufficiently free from approaching vehicles to permit defendant to cross * * * without danger of collision.' Defendant's Instruction No. 8 submitted a finding of plaintiff's contributory negligence, if plaintiff saw or by keeping a vigilant lookout ahead could have seen defendant's automobile 'moving from the west lane * * * eastwardly and across the highway ahead of him toward the Wischmeier driveway and that thereafter, plaintiff * * * upon the first appearance of danger, could with the means at hand and with safety to himself, his passenger and his automobile have avoided the collision described in evidence by slowing and stopping his automobile, but failed to do so * * *.' Defendant's Instruction No. 10, submitted defendant's theory of the case and directed a verdict for defendant on his counterclaim upon a finding of plaintiff's humanitarian negligence in failing to stop his automobile and avoid injuring defendant. Defendant's Instruction No. 9 submitted in the disjunctive the question of plaintiff's contributory negligence as to speed, failure to change course, slacken speed or stop.

Plaintiff-appellant assigns error on the trial court's refusal to give Instruction 'A,' which was based on the premise that defendant was negligent as a matter of law in turning across the highway in front of plaintiff's automobile '* * * at a time when plaintiff's automobile was approaching said point and was so close thereto as to constitute an immediate hazard * * *.' Compare Sec. 304.021, Laws 1953, p. 587, V.A.M.S. The instruction would further have directed a verdict for plaintiff upon a finding by the jury that such negligence of defendant was the direct and proximate cause of the collision and plaintiff's injuries and 'that plaintiff was at all times in the exercise of the highest degree of care for his own safety.'

Appellant insists that defendant was guilty of negligence as a matter of law as submitted in said instruction; that 'plaintiff's automobile must have been within defendant's range...