Swain v. Anders

• Decision Date: 21 May 1940
• Citation: 140 S.W.2d 730,235 Mo.App. 125
• Parties: ELLEV SWAIN, APPELLANT, v. HERMAN ANDERS AND CLAUDE NEWINGHAM, RESPONDENTS
• Court: Missouri Court of Appeals

140 S.W.2d 730

235 Mo.App. 125

ELLEV SWAIN, APPELLANT, v. HERMAN ANDERS AND CLAUDE NEWINGHAM, RESPONDENTS

Court of Appeals of Missouri, Springfield

May 21, 1940

Rehearing Denied, June 6, 1940.

Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.

JUDGMENT AFFIRMED AND CAUSE REMANDED FOR NEW TRIAL.

Action by Ellev Swain against Herman Anders and another, to recover damages for death of plaintiff's husband in collision between an automobile and a pick-up truck. Trial resulted in verdict and judgment for plaintiff. From order sustaining defendants' motion for new trial, plaintiff appeals.

Judgment affirmed and cause remanded.

Claude F. Cooper and T. J. Crowder for appellant.

R. F Baynes for respondents.

FULBRIGHT, J. Tatlow, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

This is a suit wherein plaintiff seeks to recover damages for the death of her husband, alleged to have resulted from a collision between the car deceased was driving and a pick-up truck driven by defendant, Claude Newingham and owned by defendant, Herman Anders. Defendants' answer was a general denial and a plea of contributory negligence. The cause was tried to a jury on November 16, 1939, resulting in a verdict and judgment in favor of plaintiff in the sum of $ 5000. Thereafter, and in due time defendants filed their motion for a new trial which was, on December 5, 1939, sustained on the ground and for the reason that, "The court erred in not sustaining the demurrer offered at the close of the case by the defendants." From the order of the court sustaining defendants' motion for a new trial plaintiff duly appealed.

In her petition plaintiff alleged that on November 28, 1938, her husband, Charles Swain, was driving an automobile westwardly on Highway No. 62, and that defendant Claude Newingham, the agent and servant of the defendant, Herman Anders, was driving a truck belonging to the said Herman Anders, eastwardly along said highway; that the said Claude Newingham negligently caused the truck, by him driven as aforesaid, to collide with the automobile driven by the said Charles Swain and as a direct and proximate result of the collision the said Charles Swain was instantly killed. Among other things, it is further alleged in said petition, "That the said defendant, Claude Newingham, while acting as the agent, servant and employee of the defendant, Herman Anders, and while operating and driving said truck in an eastwardly direction, upon, over and along State Highway No. 62, at the time and place hereinbefore mentioned, saw, or by the exercise of the highest degree of care could have seen the said Charles Swain, deceased, and the automobile in which he was riding and driving, in a position of imminent peril and danger of being collided with, and the said Charles Swain thereby injured and killed, in time thereafter, by the exercise of the highest degree of care, with safety to himself and truck which he was driving, and other persons, to have stopped his said truck or slackened the speed thereof, or swerved the same, or to have warned the said Charles Swain of the approach of defendant's truck, and the danger impending therefrom, and negligently and carelessly failed to do so."

The undisputed evidence shows that about six o'clock P. M., November 28, 1938, Charles Swain was driving his automobile (a Chevrolet Coupe) westwardly along Highway No. 62; that he was accompanied by Earle Hadaway, who was seated on his right; that they observed in front of them, headed west, a truck without lights, parked on the north side of the highway, the right wheels of which were about one foot off the gravel; that the defendant, Claude Newingham was driving a truck in the service of Herman Anders, eastwardly along said highway; that the Anders truck and the Swain automobile, being driven in opposite directions on said highway, collided at a point about three miles east of Risco, and that immediately after said collision Swain was found lying partly on the ground and partly on the running board of his car, and that a few minutes thereafter he died. It further shows that the defendant Newingham was employed by defendant Anders and at the time of the collision, was engaged in the service of Anders; that the Anders truck was equipped with mechanical, four wheel brakes in good condition and that the truck was loaded with 50 pounds of flour and about $ 3 worth of groceries; that the highway at the point of the collision was level and straight both east and west; that it was paved with gravel, the gravel portion being about 35 feet wide, and was dry; that the evening was clear and visibility good; that at the time of the collision it was dark and both cars were driven with head-lights; that the collision occurred from five to twenty feet in front of or to the west of the truck which was parked on the north side of the road.

Earle Hadaway testified in part as follows, as disclosed by plaintiff's abstract of the record:

"That evening, about six or six-fifteen, there was a collision between Swain's car, in which we were riding, and a truck belonging to the defendant Anders, and which was driven by Claude Newingham. The collision occurred at a point on said Highway No. 62 about three and one-half miles east of Risco. At the place of the collision the road was paved with gravel, and the gravel part of the roadbed was 35 feet wide, that is, from the north edge to the south edge of the gravel. There was a dirt shoulder about three feet wide on the south side of the road, and then a gradual slope of about 15 feet to the bottom of a ditch, which was about 3 or 3 1/2 feet deep. The slope was gradual and even. The road was dry and solid. For some distance, both east and west of the place of collision, the road was straight and level. We were traveling west and the truck that struck our car was traveling east. We were traveling on the north side of the road on the gravel portion, and traveling at about forty-five miles per hour. I saw a truck parked on the north side of the road; it had no lights, and I said, 'Look out, there is a truck without lights.' We were then about three or four hundred feet from the truck. Swain began to slacken his speed to go around the truck, and when we approached the truck within forty or fifty feet, he turned to the left and started around it at a speed of about twenty or twenty-five miles.

"When we turned out in the road to go around the truck and were about even with it, I saw the lights of a truck approaching us from the west. It looked to be four or five hundred feet west, and was coming toward us; it looked like it was coming about fifty or sixty miles per hour. Mr. Swain and I were not saying a word. I was looking at the oncoming truck and I did not look at Mr. Swain. Q. Mr. Hadaway, state to the jury, if you know or if you are able to estimate how far Mr. Swain got his automobile to the south side of the road in going around the parked truck. A. Well, like I said, I don't think "he was over the center of the road. Q. Was his automobile struck? A. Yes, sir, when he turned back north ahead of the parked truck. Q. When he turned back north, where was he with reference to the parked truck? A. About twenty feet ahead of the parked truck. Q. When your car was struck, about what position was it in the road? A. Well, the front was headed north in front of the truck; he was getting back to his side of the road. At the time our car was struck it was headed northwest, and the truck that hit us was traveling east. Q. What part of the road was it in when it was struck? A. It was on the north side of the center of the road."

He also testified that he had driven automobiles and trucks for many years and it was his opinion, based upon this experience, that any truck equipped with mechanical four-wheel brakes, in good condition, and loaded with 50 pounds of flour, could have been stopped with safety within the following distances: if traveling 60 miles per hour, about 160 feet; 50 miles per hour, 110 feet; 40 miles per hour, about 75 feet; 30 miles per hour, about twenty feet. On cross-examination he testified: "I saw the parked truck when we were about 40 to 50 feet behind it. I said, 'Charley, yonder is a truck parked.' He made no response but began to slow down. Q. I believe you stated a moment ago that Anders was coming about 60 or 65 miles per hour? A. Yes, sir, that is my opinion about it. I examined the Swain car and truck immediately after the collision. The car was cross-ways in the road and the truck was setting off the road with the front wheels at the edge of the gravel and the back-end down in the ditch on the south side of the road."

Winford Bennett, 18 years of age, testified that at the time of the collision he was standing at the corner of his house a few feet south of the highway. He saw the Swain car traveling west, the defendant's truck traveling east and also saw the collision. He did not know how many feet the Swain car was east of the parked truck when he turned to go around the parked truck, but it was "pretty close." He made no estimate of the speed of the car but stated they were traveling at about the same rate of speed. Q. "Did you see the Swain car when it turned out to pass the truck? A. Yes, sir. Q. How close would you think it was to the truck when he pulled out? A. I don't know. It looked like he was pretty close before he noticed it. Q. Where was the Anders truck when you first saw it? A. It was in front of our house when I first saw it. It was traveling east. Q. When you first saw the truck in front of your house where, then, was the Swain car? A. It was still behind the parked truck. Q. How fast do you think the truck was traveling? A. I don't know, but they were both going about the...