Walker v. Massey, 8606
| Decision Date | 10 June 1967 |
| Docket Number | No. 8606,8606 |
| Citation | 417 S.W.2d 14 |
| Parties | Winston E. WALKER and Margaret Walker, Plaintiffs-Appellants, v. B. F. MASSEY, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Charles D. Tudor, A. L. Shortridge, Joplin, for plaintiffs-appellants.
James A. Dunn, Carthage, for defendant-respondent.
In this jury-tried action for the alleged wrongful death of their unmarried minor son, Robert Allen Walker, then seventeen years three months of age, as the result of a no eyewitness vehicular tragedy in Joplin, Missouri, on August 3, 1965, plaintiffs obtained a unanimous jury verdict for $12,500 upon which judgment was entered. Sections 537.020, 537.080, 537.090. (Except as otherwise specifically stated, all statutory references herein are to RSMo 1959, V.A.M.S.) There was no after-trial motion to set aside that verdict and judgment and for entry of judgment in accordance with defendant's motion for a directed verdict at the close of all the evidence (V.A.M.R. Rule 72.02); but defendant's timely motion for new trial was sustained on the specified ground that 'plaintiffs' decedent was guilty of contributory negligence as a matter of law.' V.A.M.R. Rule 78.01. On this appeal by plaintiffs who charge that the circuit court erred in so holding, defendant undertakes to support the order on two grounds, namely, that 'there was no evidence of any actionable negligence on the part of defendant which was the proximate cause of the accident' and that 'plaintiffs' decedent was guilty of contributory negligence as a matter of law, which negligence was the proximate cause of the collision.' With the case in this posture, our factual review should and does give appropriate recognition to the basic principle that, in determining the submissibility of plaintiffs' case and whether their decedent was contributorily negligent as a matter of law, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiffs' case. Wilson v. Shumate, Mo., 296 S.W.2d 72, 74(1); Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106, 107--108(1); Clohesy v. Century Electric Co., Mo.App., 142 S.W.2d 780, 782(1).
The tragedy under consideration occurred about 10:30 P.M. on Tuesday, August 3, 1965, when a 1959 Renault sedan driven by plaintiffs' son, then northbound on Indiana Avenue, ran under and into the rear end of defendant Massey's unlighted 1950 Ford two-ton truck with flat bed, then parked, headed north, at the east curb in front of a new residence numbered 2427 Indiana. Indiana Avenue is a 'heavily-traveled' north-south street with an asphalt roadway 36 feet in width between the concrete curbs. The place of accident was in a new residential area within the city limits of Joplin and near the center of a long double-length block on Indiana between 24th Street and 26th Street, intersecting east-west streets. The residence at 2427 Indiana was the southernmost house on the east side of that double-length block. There were no houses on the west side of that block but the campus of Joplin High School lay just north of 24th Street on the west side of Indiana.
Defendant's Ford truck with a full load of blue grass sod on the flat bed had been parked about 7 A.M. on August 3, the date of accident, in front of the residence at 2427 Indiana where it was still standing when plaintiffs' decedent ran into it about 10:30 P.M. that same day. The sod was loaded in rolls with the grass on the inside and the dirt on the outside of each roll. Since the sod was hauled for a contractor whose employees were to lay it, defendant and his driver simply parked the loaded truck and then departed. Defendant returned to the parked truck between 6 P.M. and 7 P.M. the same day with the intention of taking it home if the sod had been unloaded. However, about one-third of the sod was still on the front end of the flat bed, so defendant did not move the truck.
The outside right rear dual tire on the parked truck was about four inches from the east curb. The flat bed constructed of 'wood and steel' was 18 feet 1 1/2 inches in length and 7 feet 10 3/4 inches in width. The height of the truck bed above the pavement was not shown specifically, but photographs in evidence, taken at the scene of accident before either vehicle was moved, show that the front end of the Renault, a so-called 'compact' automobile, ran under the rear end of the bed which protruded 4 feet 4 1/2 inches beyond the rear wheels of the truck, and that there was a solid, shattering impact between the rear end of the truck bed and the windshield and upright front corner posts of the Renault.
The rear end of the truck was equipped with four lights, to wit, a 'clearance light' attached to the under side of each rear corner of the truck bed, a large 'stop light * * * a big light when it lit up' attached to the frame about 18 inches from the protruding rear end of the truck bed, and a smaller 'stop and tail light combined' also mounted on the frame to the left of and just below the large stop light. Each of these lights had a red lens over it, but none was burning on the night of accident. The nearest street light was at the intersection of Indiana and 26th Street, approximately 270 feet south of the rear end of the parked truck. As to the character of the night on which this accident occurred, the transcript affords only such information as may be gleaned from the scant, unelaborated statements that the night was 'dark' and Indiana was 'a dark street' and from defendant's agreement with plaintiffs' counsel that there had been no rain that day 'to my knowledge.'
In approaching the parked truck from the rear, northbound motorists on Indiana, such as plaintiff's decedent and the witnesses to whose testimony we shortly refer, traveled up a gentle, uninterrupted incline with no perceptible change of grade to tilt headlight beams during the entire distance of approximately 270 feet from 26th Street to the point of accident. The crest of this gentle rise was a short distance (not measured or estimated in feet) ahead or north of the parked truck, but the grade turned down so gradually that there was (as the photographic exhibits demonstrate) no material limitation of sight distance for motorists. The speed limit on Indiana was 35 miles per hour.
Plaintiffs produced three witnesses who had driven past the parked truck on the night of accident. Witness Conrad, a musician 'heading for work,' was driving north on Indiana 'just at dark * * * approximately 8 P.M.' at a speed of about 30 miles per hour with the headlights on his 1963 Ford automobile on high beam when he first sighted the parked truck 'I would say 50 feet' ahead and avoided it by turning to his left. Conrad emphasized that 'I didn't hardly see the truck'--it was 'very difficult to see'--'it was blended with the night; there wasn't any markings or anything'--'I almost hit the truck.' He offered the explanation that he had been driving 'over to the right (east) side of the road' as he approached the crest of the rise on Indiana because he had never seen a vehicle parked along that curb at night.
Witness Still, the proprietor of an office supply business who had known plaintiffs' decedent as a member of his (Still's) Sunday School class, was driving north on Indiana about 9:30 P.M. at a speed of 25 to 30 miles per hour when he first saw the parked truck 'between five and six yards' ahead and, reacting on 'a quick reflex,' avoided the truck by turning 'slightly' to his left. Before he turned, Still 'wasn't too close to the (right) curb' anyway--' six to eight feet' from it.
Witness Awalt, a coproprietor with her husband in the operation of a retail paint business who had driven south past the parked truck earlier in the day and thus knew of its location, returned northbound on Indiana about 8:30 P.M. This witness did not profess to have narrowly escaped a collision with the truck, but she said that 'you had to be pretty close to it to see it * * * I wouldn't say just how close because I don't exactly know.' None of these passers-by saw any lights, reflectors, warnings or flares on or about the parked truck.
Plaintiffs' decedent was an honor student and engaged in several extracurricular activities at Joplin High School where he would have been a member of the Senior Class the ensuing school year. He was an industrious youth and, during the Summer of 1965, worked as a counterman at a McDonald's hamburger stand. After going off duty at 10 P.M. on the night of accident, he stopped at a nearby drug store where his mother was employed, told her that he would pick up a half-gallon of ice cream to take home, and purchased at the drug store two legal tablets to deliver to Tom Berman, a handicapped schoolmate with whom he was associated in debating activities. He purchased the ice cream at Anderson's between 10:15 and 10:20 P.M. and, at the time of his fatal accident, apparently was on the mission of delivering the legal tablets since the place of collision was on the route to the Berman home.
The 1959 Renault driven by plaintiffs' decedent was 'a used car' which had been purchased only two or three weeks prior to the accident. Plaintiff Winston E. Walker, the father in whose name title was taken, had inspected and checked the automobile carefully at that time. He testified that the headlights functioned properly, there was nothing 'loose or wrong' with the steering mechanism, all of the tires were 'reasonably good,' and the mechanical brakes 'worked all right' so that, 'if you pressed down on the brakes hard * * * it (the Renault) would stop.' There was no inquiry as to whether or not an emergency application of the brakes would skid the tires.
As noted at the outset, there was no known eyewitness to his tragedy....
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