Virgil v. Riss & Co.
| Decision Date | 04 June 1951 |
| Docket Number | No. 21556,21556 |
| Citation | 241 S.W.2d 96 |
| Court | Missouri Court of Appeals |
| Parties | VIRGIL v. RISS & CO., Inc. |
Gage, Hillix & Phelps, James A. Moore, and William A. Collet, all of Kansas City, for appellant.
Donald W. Johnson, Charles V. Garnett, Kansas City, for respondent.
Ronald E. Virgil, as plaintiff in the trial court, brought this action to recover damages to his truck and for the loss of use thereof caused by a collision between the said truck and a tractor alleged to be, at the time, negligently operated while under the control of the defendant under a lease. Upon the death of the plaintiff, his administratrix was substituted as such. At the close of all the evidence the court, on motion, directed a verdict for the defendant. Thereafter the court sustained plaintiff's motion for new trial, and this appeal is taken from that order.
The allegations of the amended petition of the plaintiff, pertinent to this appeal, are that plaintiff, on June 9, 1948, was driving westward on 18th Street at or near its intersection with Cherry Street in Kansas City, Missouri; that a truck leased and under the control of defendant approached said intersection from the north on Cherry Street, driven by defendant's agent, servant or employee, in the course of his employment, and which was so negligently and carelessly driven and operated as to be permitted to run into plaintiff's truck; that the negligence consisted of the operation of the defendant's truck at an excessive and dangerous rate of speed; the failure of the operator to keep a lookout laterally, or to apply his brakes thereon timely, or to keep same under reasonable control; an attempt to cross the intersection when plaintiff's truck was already upon and crossing the intersection; failure to yield the right of way, permitting the brakes of the defendant's truck to become very loose and ineffective and operating the truck without two sets of adequate brakes in good working order, as required by law. The allegations regarding the statutory requirement of two sets of brakes were inserted by amendment at the trial.
The answer was a challenge of the sufficiency of the petition, and a general denial.
On May 7, 1948, Ed. Wiel, owner and driver of the truck which collided with plaintiff's truck, executed a lease in which he was described as 'an independent contractor', by which he leased his trailer-truck to the Rocky Mountain Industries, Inc. for a period of one year, with the right of lessee to re-lease the same to a common carrier. Among other provisions the lease provided that lessor would look solely to lessee for consideration of the lease, would be fully responsible for and indemnify lessee or re-lessee against loss through all negligence of lessor or the equipment operator; that during the existence of the lease the truck would be under the complete control of the lessee, or if re-lease be entered into with common carrier, then to such common carrier, 'for the limited purpose of safety to the public and safe delivery of the shipment'. The lease further provided that the lessor agreed to maintain his equipment in good and efficient working order, including gas, oil, tire and equipment operating cost at his sole expense, to maintain fire, theft and collision insurance covering the equipment, and to observe and comply with all safety requirements of the I. C. C. and other regulatory bodies. It was further provided that lessor would idemnify lessee against any liability resulting from the injury or death of the driver and for any loss or damage resulting from negligence of the driver. The lease provided for cancellation forthwith by either party upon suffering from breach of one or more of the coventants by the other.
Thereafter and upon the same day the Rocky Mountain Industries, Inc., as an independent contractor, re-leased to defendant Riss & Company the Weil truck upon oral consideration agreed to separately, for one year thereafter, and on a form similar, but not identical, to the first lease above described. The relationship which the Rocky Mountain Industries, Inc. bore to Riss & Company is not clearly shown except that they were very closely related if they were not in fact, for all practical purposes, one and the same company. It does not seem to be disputed that the lease operative between Ed Weil and the defendant was the lease which was signed by Weil. Defendant admits, and in fact asserts, that plaintiff's evidence showed Weil's relationship to defendant was that of independent contractor.
Andrew Earl Skinner, employee of the plaintiff, testified that he was driving the plaintiff's truck west on 18th Street, approaching Cherry Street on June 9, 1948, at the rate of about 20 to 25 miles an hour; that he slowed down to about 15 or 18 miles an hour as he reached the intersection, at which point he looked north and could see at least 25 feet, and saw no approaching vehicles and proceeded to cross the intersection, and after getting half way across, he saw the defendant's tractor coming and he tried to get out of the way, but when he reached the west end curb of Cherry Street, defendant's tractor hit the plaintiff's truck. He said that when he first saw the defendant's tractor it was some 20 to 25 feet from him, and approaching about 35 miles an hour. Defendant's tractor collided with the plaintiff's truck in about the center, and knocked the bed off the truck, capsizing the bed and throwing it to the southwest corner of the intersection, and threw the chassis against a telephone pole, turned it around and left it heading east. He explained in detail the damages. There was other evidence, photographic and otherwise, tending to corroborate plaintiff's witness Skinner.
Ed Weil, in behalf of the plaintiff, testified that on the morning of the accident, he arrived in Kansas City after a trip for defendant from Colorado. He detached his trailer for unloading and left it at the Riss & Company terminal. Later he left the terminal in his detached tractor to get his radiator repaired. As he crossed 12th Street at Cherry Street, going south, he heard a hissing sound, noticed that his air gauge quickly went down 'and the orakes went out', and that his tractor rapidly gained speed on the down grade. He grabbed for the emergency brake but it did 'no good'. He explained that the emergency brake was connected with the same air system as the foot brake, and that when the system is working properly, the pressure may be applied by the foot brake and held by the emergency brake, but that without the aid of the pressure through the foot brake, it was very hard to get any brakeage with the hand brake alone, which was difficult to reach and apply except possibly to prevent the gain of momentum, or to stop the tractor when it was rolling. He explained further that he could not even sound the horn because the air system was not functioning. The tractor weighed about 13,000 pounds. He explained further that on account of the motor being a Diesel engine, there was no way to throw the motor into a lower gear, nor would it have availed anything to shut the...
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