Thompson v. Byers Transp. Co.

• Decision Date: 14 May 1951
• Docket Number: No. 41864,No. 2,41864,2
• Citation: 239 S.W.2d 498,362 Mo. 42
• Parties: THOMPSON v. BYERS TRANSP. CO., Inc
• Court: Missouri Supreme Court

Page 498

239 S.W.2d 498

362 Mo. 42

THOMPSON v. BYERS TRANSP. CO., Inc.

No. 41864.

Supreme Court of Missouri, Division No. 2.

May 14, 1951.

Bernard Steinger and Joseph D. Feigenbaum, St. Louis, for appellant.

Thomas J. Cole, John J. Cole, St. Louis, for respondent.

BOHLING, Commissioner.

Clifford Thompson sued Byers Transportation Company, Inc., a corporation, for $175,000 damages for personal injuries sustained in an automobile accident. The jury returned a verdict for defendant, and plaintiff appealed from the judgment entered thereon. Plaintiff's main assignment alleges error in the giving of defendant's burden of proof instruction. Defendant denies error, and also contends plaintiff was guilty of contributory negligence as a matter of law, barring recovery.

Plaintiff was a long-distance driver for the Wilson Truck Company, having had eighteen years' experience, seven and a half years with his employer. His regular run was between St. Louis and Kansas City, Missouri, over U. S. highway No. 40. He had made the trip many times and was thoroughly familiar with the road.

The accident happened in the 'Mineola flats' at 9:30 p. m., July 13, 1948. There was a fog in the Mineola flats at the time. The pavement was wet and damp.

West-bound traffic proceeds down the Mineola hill, described as a 'winding hill,' and 'an awful steep hill,' then passes over Loutre creek on a steel bridge near the base of the hill, and then about 1,000 feet west and 500 feet farther west are concrete bridges, each approximately 111 feet long, over sloughs of Loutre creek. The accident happened at the middle bridge, the east concrete bridge, according to plaintiff.

Defendant's tractor-trailer was operated by defendant's employee Arnold L. Dart. He approached the bridge where the accident occurred at a spped of about 40 miles an hour and, noticing two east-bound trucks (Midwest Transfer Company) approaching so as to meet him on the bridge, he 'blinked' his headlights and then slowed down to let them clear the bridge before he pulled onto it.

Clarence L. Farmer, the operator of the leading Midwest Transfer Company's east-bound truck, interpreted Dart's signal for a stop signal, that Dart was having trouble, and he started slowing down and managed to stop about three or four feet to the east of defendant's trailer. The rear of defendant's trailer was 50 to 55 feet east of the bridge. Farmer testified that defendant's tractor-trailer and the fog obstructed his view to the east; that the fog was 'pretty bad,' it was a 'heavy fog' in the low places, and interfered with driving 'down by the bridge,' which was the only place the fog was heavy; that if you walked away from the trucks you could not see them; that at times the fog would 'go away' and you could see 'pretty clear' and a couple of minuted later you could not; that defendant's tractor-trailer was stopped on the highway; that he saw plaintiff approaching for a couple of seconds before the collision; that plaintiff had his headlights on; that he realized plaintiff would collide with the rear of defendant's trailer and he looked and there were no lights burning on the rear of defendant's trailer.

Plaintiff was taking a tractor and loaded trailer from St. Louis to Kansas City. He had been traveling 35 to 40 miles an hour as he approached the Mineola hill. He testified that when about half way across the flat he ran into a fog and slowed down to between 20 and 25 miles an hour. At this speed he could stop in 'around 50 feet.' He had good brakes, needed good brakes to come down the winding Mineola hill. He traveled 'probably a thousand feet' in the fog. He had the headlights on 'dim' to shine on the pavement. His truck was not equipped with fog lights. He did not see defendant's tractor and trailer, not its headlights ahead of him in the Mineola flats.

Plaintiff testified that he first saw defendant's trailer when he was within five to ten feet of it; that it was stopped on the pavement, and without any lights burning on the trailer; that he could not pull out on the shoulder with his loaded trailer, as he would have gone over the fill into a fifteen foot drop, and the east-bound Midwest Transit Company's trucks had the other half of the pavement blocked, the easternmost of said trucks being opposite plaintiff's cab as he hit the rear of the Byers' trailer. Plaintiff was estimating the stated distances, etc.

There was evidence that if the trailer lights had been burning they could have been seen for 100 feet and also for 200 feet.

The burden of establishing plaintiff's contributory negligence falls upon the defendant unless it be established as a matter of law by plaintiff's evidence. With defendant carrying the burden of proof, plaintiff's contributory negligence most frequently is a fact issue for the jury for the credibility of the witnesses is involved, especially where there is a conflict in the testimony, the same as is defendant's actionable negligence ordinarily a fact issue. Consequently, plaintiff's contributory negligence is for the jury unless reasonable minds can draw only the conclusion that plaintiff was negligent. The whole evidence and all legitimate inferences deducible therefrom are viewed in the light most favorable to plaintiff and taken as true while the evidence and inferences favorable to defendant are disregarded in ruling the issue of contributory negligence as a matter of law. Rose v. Missouri Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562, 568, 81 A.L.R. 400; Cento v. Security Bldg. Co., Mo.Sup., 99 S.W.2d 1, 6[7, 8]; Howard v. S. C. Sacks, Inc., Mo.App., 76 S.W.2d 460, 465[6-8]; Hale v. Kansas City, 239 Mo.App. 12, 187 S.W.2d 31, 39[3, 4].

In the foregoing circumstances plaintiff's contributory negligence was not established as a matter of law. He was not aware of the presence of defendant's trailer blocking the highway at a place where he had a right to assume the way was clear and he could proceed with safety on his side of the pavement. The situation is distinguishable from defendant's cases wherein automobilists have crashed into a railroad train or cars blocking a highway-railroad grade intersection where they do not have the right to assume the way is clear and are required to anticipate the possible presence of cars blocking the crossing and to act accordingly. Fitzpatrick v. Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560, 567[7, 8]; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 918[6, 7, 13, 14].

In the instant case plaintiff's vision was affected by the fog; and if the lights on the rear of defendant's trailer had been burning, R.S.1949, Secs. 304.450, 340.380, there was evidence, if believed, warranting a finding they could have been seen for 100 to 200 feet. A jury might infer that the headlights of the Midwest Transit Company's truck also affected plaintiff's vision. Farmer saw the headlights on plaintiff's approaching tractor a couple of seconds before the collision, approximately 75 or more feet way at 25 miles an hour. Plaintiff could have stopped within 50 feet. Defendant's tractor-trailer was standing, without lights, on the pavement. Plaintiff was not contributorily negligent as a matter of law on the theory he was traveling at a speed which prevented his stopping within the distance his headlights revealed objects ahead of him in the circumstances of record. Roper v. Greenspoon, 272 Mo. 288, 198 S.W. 1107, 1111, L.R.A.1918D, 126; Kendrick v. Kansas City, Mo.Sup., 237 S.W. 1011, 1013; Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 304; Drake-smith v. Ryan, Mo.App., 57 S.W.2d 727, 729; Pfeiffer v. Schee, Mo.App., 107 S.W.2d 170, 174; Poehler v. Lonsdale, 235 Mo.App. 202, 129 S.W.2d 59, 64, and see cases cited in Davis v. F. M. Stamper Co., 347 Mo. 761, 148 S.W.2d 765, 769. The facts differ in defendant's cases of Solomon v. Duncan, 194 Mo.App. 517, 185...