Van Sickel v. F. M. Stamper Co.

• Court: Kansas Court of Appeals
• Writing for the Court: BOYER; PER CURIAM
• Citation: Van Sickel v. F. M. Stamper Co., 198 S.W.2d 539 (Kan. App. 1946)
• Decision Date: 18 November 1946
• Docket Number: 20740
• Parties: VAN SICKEL v. F. M. STAMPER CO

198 S.W.2d 539

VAN SICKEL v. F. M. STAMPER CO

No. 20740

Court of Appeals of Missouri, Kansas City

November 18, 1946

Not to be published in State Reports.

Roland A. Zeigel, of Kirksville, and Howard F. Major, of Columbia for appellant.

Philip J. Fowler, of Kirksville, for respondent.

OPINION

BOYER PER CURIAM

This is an action for damages for the alleged wrongful death of respondent's husband, Joseph W. VanSickel, resulting from injuries received by him when an automobile which he was driving collided with the rear end of a loaded truck owned by defendant and operated in its behalf by an employee. As grounds for recovery on primary negligence the petition charges that the defendant negligently stopped the truck on the traveled portion of the highway and negligently failed to stop it with its right side as near the right-hand side of the highway as practicable, and that defendant negligently failed to have lights on the rear of said truck; 'that due to said carelessness and negligence the car which plaintiff's husband was driving struck same inflicting injuries from which, within a few hours, he died.'

The answer of defendant admitted that it is and was at all times mentioned a corporation organized under and by virtue of law with a place of business at Kirksville, Missouri. The balance of the answer to plaintiff's petition was a general denied coupled with a specific plea of contributory negligence on the part of both plaintiff and her husband. It was charged that Joseph W. VanSickel, the driver of the automobile, negligently failed to keep a lookout for other vehicles upon the highway and negligently operated the automobile at a dangerous rate of speed under the circumstances, and that he negligently failed to slacken the speed of the automobile, stop the same or divert the course thereof, and that he so negligently managed, drove controlled and operated said automobile as to cause, allow and permit it to run into, strike and collide with the rear of defendant's said motor truck. Specific charges of contributory negligence were also alleged on the part of plaintiff.

If plaintiff filed a reply, it does not appear in the transcript.

The transcript of the evidence contains the testimony of various witnesses presented by both plaintiff and defendant, and numerous exhibits of photographs of the truck and automobile in question. At the close of all the evidence, defendant moved for a directed verdict in its favor because under the law and the evidence plaintiff was not entitled to recover. The motion was denied. The case was submitted to the jury by instructions given on behalf of both parties. In submitting the case to the jury, plaintiff abandoned the charge that the defendant negligently failed to have lights on the rear of his truck, and the only issue of negligence submitted to the jury was whether or not the defendant negligently permitted the truck to be stopped upon the traveled portion of the highway and failed to stop said truck with its right side as near the right-hand side of the highway as practicable.

The issue of contributory negligence was accepted and plaintiff's recover was conditioned upon a finding of no negligence on the part of the plaintiff or her deceased husband which caused or contributed to cause the collision. The jury found the issues for the plaintiff and assessed her damages at the sum of $ 5000. Judgment was entered in accordance therewith and after due and proper steps the defendant perfected its appeal to this court and presents for review the alleged error of the court in refusing appellant's motion for a directed verdict at the close of all the evidence because respondent failed to make a submissible case in that there was no evidence of negligence on the part of appellant, and because Joseph VanSickel, the driver of the automobile in question, was guilty of contributory negligence which bars recovery by plaintiff as a matter of law. Procedural errors are also assigned in the giving of various instructions requested by plaintiff, and in the reception and rejection of evidence over the objection of the defendant.

If the claim of appellant that plaintiff's husband was shown by the evidence to be guilty of contributory negligence as a matter of law can be sustained, then plaintiff did not make a submissible case and was not entitled to recover. Kobusch v. Ruberoid Co., Mo.Sup., 194 S.W.2d 911, 914. We will give priority of consideration to this claim of appellant because if found to be justified, it will dispose of the case and render unnecessary the discussion of any other assignment of error.

The record shows by admissions and the testimony of witnesses offered by both parties that the collision in question occurred on the 23rd day of December, 1944, at about 7:30 p. m.; that plaintiff's husband received injuries in said collision from which he died the following day; that the truck in question belonged to defendant and was in charge of an employee of defendant, who at the time was acting within the scope of his employment. The scene of the collision was on State Highway No. 6, a short distance west of its junction with Federal Highway No. 63. Highway 6 runs in an easterly and westerly direction. The truck was stationary and had been stopped on the south side of Highway 6, with the south side of said truck very closely adjacent to a highway road sign which read 'Stop Ahead.' Highway 6 was what is known as a black top road, the black top pavement being approximately 23 feet in width, with shoulders of varying width on both sides, and the total width of said highway from the outer edge of the shoulders was 32 feet. The road sign above referred to extended close to the south side of the black top. There was a ditch on the south side of the highway both east and west of the road sign. The truck was loaded with light colored poultry coops filled with gray and white chickens and geese which could be seen through the slats of the coops. The poultry coops were piled upon the truck five, six or seven coops high. The truck also contained a quantity of feed and other produce, and there was no covering over the load.

Defendant's employee explained the stopping of the truck, while he was proceeding eastwardly, to be due to the fact that the gasoline tank in use had become exhausted; that the truck was equipped with two gasoline tanks, one at the side of the frame under the bed which was being used, and an emergency tank located under the seat; that it was necessary to stop the truck in order to get out and turn a valve which was under the hood of the truck in order to switch on the emergency tank; that he was about 150 feet west of the scene of the collision when the motor stopped; that he stopped the truck where he did because it was a safe place for that purpose, and that he could not stop on the shoulder of the highway either east or west of the sign without danger to the truck and the load on account of the sloping condition of the shoulder toward the ditch on the south side of the highway. He also testified that when the truck stopped he got out, went around on the right side, lifted the hood and turned on the extra gasoline tank. He then walked around to the left side of the truck to examine the carburetor which he suspected of causing the use of too much gas; that the truck was equipped with seven red lights on the rear and that both the headlights and the rear lights were burning at the time; that while he was turning on the gasoline tank a porch light on the nearby residence of Mr. McVay was turned on and that it illuminated the truck and...