Thebeau v. Thebeau
| Decision Date | 08 June 1959 |
| Docket Number | No. 46435,46435 |
| Citation | 324 S.W.2d 674 |
| Parties | Benedict THEBEAU, Respondent, v. Raymond THEBEAU, Appellant. |
| Court | Missouri Supreme Court |
Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for appellant.
Rexford H. Caruthers, Jack H. Ross, St. Louis, for respondent.
Benedict Thebeau brought this action against his brother, Raymond, to recover damages for personal injuries sustained through the alleged negligence of Raymond in the operation of his pickup truck in which plaintiff was riding as a passenger. Verdict was rendered for Benedict for $15,000, and Raymond has appealed from the ensuing judgment.
About 6:30 a. m., April 14, 1955, Benedict and Raymond, together with another brother, Charles, were riding in Raymond's 1953 'Chevy' pickup truck en route to their place of employment. On the occasion in question Raymond was driving, Charles was in the middle and Benedict was in the seat on the right side. At the intersection of state highways No. 47 and No. 21 they stopped to permit a red pickup truck (of the same type as defendant's) to proceed northwardly on No. 21 ahead of them. The Thebeau truck then followed the red pickup northwardly along highway No. 21 a distance variously estimated to be from one-half to one mile to the point at which the casualty occurred, during which interval both vehicles were traveling at about the same rate of speed, to wit, 45 or 50 miles per hour, and the distance separating them was 55 or 60 feet. In other words, the Thebeau truck followed at 55 or 60 feet behind the forward truck. It had been raining the night before, and the highway was still wet; it was 'just sort of misty.' As they were thus proceeding along the highway, plaintiff noticed a cow standing by the road. Plaintiff's testimony in that connection, as well as with respect to other facts and circumstances immediately surrounding the casualty, follows:
'She come across a little gully. She had her head hanging over the road a little bit, not much. This other truck was going up to the cow and he [the other driver] started slowing down.
'Q. Was that the truck in front of yours? A. Yes, he started slowing down. Then I hollered, I told him [defendant] there was a cow up there.
'Q. You hollered out when you saw the cow? A. Yes, sir.
'Q. What did you say? A. I said, 'Watch out, there is a cow.'
'Q. What did your brother do? A. He just took--he motioned suddenly, turned his wheels and put his brakes on and went over in this ditch.
'Q. What happened to the truck when he did that? A. It turned over on the right side and had me pinned underneath it.
'Q. Do you have any idea how close Raymond's truck was to this other one when he took this motion that you described? A. About fifty to sixty feet, something like that.
'Q. Did the cow ever come out on the highway itself, or do you know? A. No, sir.
'Q. With reference to when you yelled--you said you yelled, 'Watch out,' when did Raymond take this motion, was it before or after you yelled? A. It took him a little while to think, I guess. He took it pretty sudden.
The defendant was the only witness called in his behalf. Asked what he saw the other truck do as he was approaching the place where the accident happened, defendant answered: He further testified that he saw the truck was slowing down and stopping, and that is what caused him to put his brakes on; he knew 'back up the road a ways before the accident happened' that the red glass in the brake light of the red pickup was 'all broke out' and he 'couldn't see no bulb.' He was not making any effort to pass; he was just following behind up until the man put his brakes on, during all of which time the left side of the road was open and clear--no one coming from the other way.
Plaintiff's instruction No. 1, upon which his cause was submitted to the jury, hypothesized a violation on defendant's part of section 304.044 (), and authorized a verdict for plaintiff, as follows:
'The Court instructs the jury that it is unlawful for the driver of a truck when traveling upon a public highway of this State, outside of a business or residential district, to follow within 300 feet of another such vehicle except when passing.
'In this connection you are further instructed that if you find and believe from the evidence that on the 14th day of April, 1955, plaintiff was riding as a passenger in a truck being driven by defendant generally eastwardly on Missouri State Highway 21, at the place thereon mentioned in evidence, and that such place was outside of a business or residential district; and if you further find that at said time and place defendant was following another truck, without passing, at a distance less than 300 feet, and had followed said other truck at a distance of less than 300 feet, for approximately one mile, and that in so following said other truck defendant failed to exercise the highest degree of care and was negligent; and if you further find that said other truck then and there suddenly reduced its speed and that defendant thereafter, in an effort to avoid a collision with said other truck, suddenly reduced the speed of his truck and suddenly swerved the same and thereby caused it to overturn and injure plaintiff, if you so find; and if you further find that the overturning of said truck was directly and proximately caused by the defendant's negligence, if any, in following said other truck at a distance less than 300 feet, it so, then your verdict less than 300 feet, if so, then your verdict against the defendant.'
Defendant assigns error in the overruling of his motion for a directed verdict, and his after-trial motion for judgment for the reason that the negligence submitted (defendant's admitted violation of section 304.044) did not constitute actionable negligence because it was not the proximate cause of plaintiff's injuries, nor was there any causal connection between such negligence and said injuries.
Section 304.044 and section 304.017 are adaptations of Sec. 31 of the Uniform Motor Vehicle Law. 11 Uniform Laws Annotated, p. 35. (As we understand, the Uniform Act has been declared obsolete or withdrawn by the National Conference of Commissioners on Uniform State Laws.) The sections of our statutes just mentioned read, respectively, as follows:
Section 304.044. '1. The following terms as used in this section shall mean
'(1) 'Bus,' any vehicle or motor car designed and used for the purpose of carrying more than seven persons;
'(2) 'Truck,' and vehicle, machine, tractor, trailer or semitrailer, or any combination thereof, propelled or drawn by mechanical power and designed or used in the transportation of property upon the highways.
'2. The driver of any truck or bus, when traveling upon a public highway of this state outside of a business or residential district, shall not follow within three hundred feet of another such vehicle; provided, the provisions of this section shall not be construed to prevent the overtaking and passing, by any such truck or bus, of another similar vehicle.
Section 304.044 does not appear to have as yet received judicial interpretation in this state, but similar statutes have been considered in other jurisdictions with varying results, examples of which we shall cite. In Maryland it was held that the purpose of the statute prohibiting a commercial vehicle following within 150 feet of another commercial vehicle was not to protect trucks from collision with each other, but to provide sufficient space between them to permit lighter vehicles to pass, and that as trucks were governed by another section (corresponding in some respects to our section 304.017) the court would look to such other section to find whether the offending truck driver was guilty of contributory negligence....
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