Taylor v. Riddle, 49335
| Decision Date | 14 December 1964 |
| Docket Number | No. 49335,No. 2,49335,2 |
| Citation | 384 S.W.2d 569 |
| Parties | Edith TAYLOR, Widow, Respondent, v. George Raymond RIDDLE, Lloyd A. Fry Roofing Company, Burris Milton Ford, and Glen Corum, Appellants |
| Court | Missouri Supreme Court |
Leon Roulier, Colby, Kan., William H. Sanders, Dean F. Arnold, Walter F. Moudy, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondent.
Samuel J. Molby, Kansas City, Conn Withers, Liberty, Robert L. Coleman, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for appellants.
Action under the Kansas wrongful death statute (60-3203, 3204, Kan.G.S.1949, as amended G.S.1961 Supp. 60-3203) brought by Edith Taylor as the widow of William A. Taylor whose death resulted from injuries sustained in an automobile collision allegedly occasioned by the negligence of the defendants. Verdict and judgment against all (four) defendants in the sum of $25,000, from which judgment two (separately briefed) appeals have been taken; one jointly by George Raymond Riddle and Lloyd A. Fry Roofing Company (a corporation), and the other jointly by Burris Milton Ford and Glen Corum. These two sets or pairs of defendants were the respective owners or operators of the two large tractor-trailer rigs or outfits involved in the casualty. The third vehicle was a 1955 Mercury passenger car driven by plaintiff's decedent (hereinafter referred to as Taylor), the front end of which Mercury struck or rammed into the rear end of the Riddle-Fry trailer.
The casualty occurred on Kansas Highway 18 at about 8 p. m., on December 18, 1958, at a point .9 miles east of the junction of that highway with Highway 181, which junction or intersection is one mile north of the town of Sylvan Grove, and an estimated distance of 12 to 14 miles west of the town of Lincoln, Kansas. Some of the general, uncontested facts are these: The weather was clear and the road dry. Highway 18 is new, of modern construction, and has a paved asphalt or blacktop surface some 25 feet in width exclusive of the shoulders, and, in the area in question it extends east and west, is straight, and the surrounding terrain somewhat rolling; 'right out of Lincoln it's not so rough, but as you get a little further west, it gets more hilly, kind of up and down.' The Riddle-Fry tractor-trailer unit was proceeding west (as was the Mercury). It was approximately 40 feet long and about 8 feet wide. The trailer was a 32-foot flat bed grain trailer with sideboards 42 to 48 inches in height, carrying a load of roofing material weighing 58,000 pounds. The Ford-Corum tractor-trailer (of approximately the same length) was eastbound, carrying a cargo of wheat.
The Mercury car was owned by plaintiff's decedent's brother-in-law, Chester A. Moore. Moore and his wife (Louise) together with Taylor and his wife and the Taylor's infant son (Harry, aged 15 months) had started from their homes at or near Levant and Colby, Kansas, about 7 a. m., on the day in question and drove to Manhattan (distance estimated at 300 miles) to attend a funeral. Moore had done all the driving until the town of Lincoln was reached on the return trip, and there the group stopped, had the car serviced, and ate. Leaving Lincoln, their homeward, westbound journey was resumed but with Taylor at the wheel. It so continued until the collision, which occurred in what was referred to as a wide valley that extended east and west two and one-fourth to two and one-half miles between hillcrests. The hillcrest at the east end of the valley was the one over which both the Riddle-Fry truck and the Mercury car came upon the scene (its distance from the point of collision an estimated two-tenths to one-fourth mile).
Plaintiff's verdict-directing instructions submitted hypotheses of negligence on the part of the defendants, respectively, as follows: As against Riddle and Fry in having stopped their vehicle so as to obstruct the north half of the traveled portion of the highway in the immediate vicinity of the standing eastbound Ford-Corum vehicle when Riddle knew that such stopping created a hazard of collision to the passage of westbound traffic; and as against Ford and Corum in failing to set out fusees, flares or lights as prescribed by regulations of the Kansas Corporation Commission, after Ford knew that westbound traffic might collide with the Riddle-Fry vehicle standing alongside the Ford-Corum truck. The court also gave a concurring negligence instruction which authorized the jury, in appropriate circumstances, to return a verdict against all defendants.
Both sets of defendants challenge the submissibility of plaintiff's case; Ford and Corum on the sole ground that plaintiff's decedent was 'contributorily negligent as a matter of law in failing to correlate his speed with his ability to stop within the range of vision provided by his headlights.' Riddle and Fry urge, first, that 'The evidence did not establish an illegal, wrongful, negligent or actionable stopping of their truck on the highway'; secondly, that Taylor was guilty of contributory negligence as a matter of law (and adopting in full the authorities and argument of Ford and Corum on this point). These assignments necessitate further delineation of some of the environing circumstances and conditions, but the questions raised by them are to be determined by considering 'the probative facts not entirely unbelievable or opposed to the physical facts, Docoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105[5, 6] from the standpoint most favorable to the plaintiff, including facts established by defendant's evidence aiding plaintiff's case when not in conflict with plaintiff's testimony or plaintiff's fundamental theory, giving plaintiff the benefit of all legitimate favorable inferences and disregarding defendant's evidence unfavorable to plaintiff.' Capra v. Phillips Investment Co., (Mo.) 302 S.W.2d 924, 929. 3 West's Missouri Digest, Part 1, Appeal and Error, k930(1).
Other evidence bearing directly upon (and which is, in fact, determinative of) the question of submissibility, when considered in accordance with the rule just referred to, justifies this statement in relation to such critical facts:
As stated, Taylor was driving. His brother-in-law, Moore, was riding with him in the right front seat; Moore's wife was riding behind her husband in the right rear seat; Mrs. Taylor and the baby occupied the left rear seat behind the driver. The three surviving adults of this group testified on the part of plaintiff, and from their testimony it appears that as the Meroury topped the hillcrest an estimated two-tenths to one-fourth mile east of the point of collision, Taylor's speed was 50 to 55 m. p. h., and at that time the headlights of the Ford-Corum vehicle (then admittedly stopped in the south lane of the pavement, headed east) came into view. The headlights were 'pretty bright,' but not blinding. These witnesses observed no westbound traffic ahead either at that time or as they passed through the adjacent valley to the east, and could not tell whether the lighted vehicle was moving or standing, but when their car 'got half way down there * * * [they] could tell that the truck was stopped.' Taylor blinked his lights two or three times, then kept them on dim as he proceeded westward in his own lane. The truck headlights were not dimmed in response to his signal, but remained on bright. Taylor's speed remained constant at 50 or 55 m. p. h. until he applied his brakes, an estimated 100 or 150 feet east of the point of collision.
As either the application of the brakes was felt or the screeching of the tires was heard, or both, Mr. and Mrs. Moore and Mrs. Taylor saw for the first time the Riddle-Fry truck ahead in the westbound lane, and they were positive that what they saw was only the top part of the truck. Until that time Moore saw nothing ahead except the two headlights. More specifically, no lights on the rear of the Riddle-Fry truck were seen by any of the passengers in the approaching Mercury 'until we was real close * * * I would say twenty-five or thirty feet,' and the two tractor-trailer outfits were then stopped or standing on the highway 'side by side * * * abreast of each other,' about five feet apart with insufficient room for a car to pass between them. It was not until that time that Mr. and Mrs. Moore saw three non-blinking red lights on the right rear of the Riddle-Fry truck, but they did not see any on the left; Mrs. Taylor saw no lights on it at any time. In this connection, Moore testified that 'there was something across the road--that was going across the road between me and the truck,' but he could not Mrs. Moore stated Both of the Moores testified that when they saw the westbound truck ahead of them it was stopped.
By application of the brakes, Taylor's speed had been reduced to not more than 15 or 20 m. p. h. at the time of the collision, but even so, the right front of the Mercury struck the left rear corner of the standing Riddle-Fry trailer, pinning the hood of the car under the bed of the trailer, with resulting fatal injuries to Taylor. The Mercury came to rest about even with the tractor part of the eastbound truck. The position of the Riddle-Fry vehicle was that its tractor was about opposite the left rear wheels of the Ford-Corum trailer, the whole vehicle being a little closer to the center of the lane than it was to the outside edge; in other words, it was not over at the edge as though it was parking or getting ready to park. No part of either of the two tractor-trailer outfits was on the...
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