Weisman v. Arrow Trucking Co.

• Decision Date: 07 December 1943
• Docket Number: No. 26495.,26495.
• Parties: WEISMAN v. ARROW TRUCKING CO.
• Court: Missouri Court of Appeals

176 S.W.2d 37

WEISMAN v. ARROW TRUCKING CO.

No. 26495.

St. Louis Court of Appeals. Missouri.

December 7, 1943.

As Modified on Denial of Rehearing December 28, 1943.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Meyer Weisman against Arrow Trucking Company for injuries and property damage sustained when truck operated by defendant's servant drove into rear of plaintiff's parked truck. From a judgment for plaintiff for $7500, the defendant appeals.

Judgment reversed and remanded with directions.

Walther, Hecker & Walther, of St. Louis, for appellant.

J. Edward Gragg and Jerome Simon, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

Plaintiff, who for many years had been engaged in buying and selling scrap iron and junk, was picking up a truck load of junk in the village of Madison, Illinois, on April 25, 1942. His truck was standing or parked at the side of Madison street and facing south. In the rear or back of his truck was a pushcart loaded with junk which he had bought from one Fletcher Jackson, and the junk was being transferred from the pushcart onto the truck. Plaintiff was standing on the truck arranging the junk as it was handed up to him, with his back to the rear of the truck, and was talking to John Christoff who was standing on the sidewalk. A truck owned by defendant and being driven south on Madison street by Martin Otis Lockley, Sr., collided with the rear end of plaintiff's truck. Plaintiff was thrown from the truck and landed at and on the sidewalk or curb, receiving the injuries sued for.

Martin Otis Lockley, Sr., testified that he was the driver of defendant's truck, a Ford dump truck, which was loaded with cinders and brickbats, and being taken to a fill southwest of Madison; that he was employed by the Arrow Truck Company; that Mr. Kruger is superintendent and Mr. Klein is truck foreman for the Arrow Trucking Company; that as he proceeded down Madison avenue he saw the truck parked at the curb when he was 50 or 60 feet from it, and he saw Weisman on it at the time; that he was traveling 15 to 20 miles per hour. He further said, "I was coming down the highway, down Madison avenue, which is a state highway the way we are routed there, and I came across the Fourteenth street railroad track there and it is a little rough, and I just touched my brake a little, and the first thing I knowed the right front wheel locked and pulled me over to the right, and my right front wheel and fender hit the back end of that truck parked there. That is all there was to it. The foreman, Mr. Klein, routed me that way. Mr. Klein did not tell me to take Madison avenue, he told us `go up there and start hauling,' and naturally Madison avenue is the route everybody uses. This was not the first load I made that day, I don't remember what loads I had been hauling that day. I can't tell you the mechanical condition of the truck. I am not a good mechanic. The brakes didn't work all right, that is, sometimes they worked all right and sometimes they didn't. The steering apparatus worked all right. I had trouble with the brakes before 1 o'clock that day; I think it was a load or so just before that I noticed one of the front brakes grabbing just a little. I did not report that to anybody, did not tell Mr. Klein or Mr. Kruger about it." He further said that he was about 8 feet to the back of plaintiff's truck when he first applied the brakes; that when he came to the street car tracks (which plaintiff testified was from 100 to 125 feet back of his truck) there was a little dip, and it is rough, and you just naturally touch your brakes a little. He further said that plaintiff's truck was parked at the regular ordinary parking place, and that there was room for a truck to go between plaintiff's truck and the street car line on Madison street. That the brake on the right front wheel locked and pulled his truck right into plaintiff's truck. That he had noticed the right front brake was grabbing, either the load before that or the second load before that. He further said that he had been driving trucks about 22 or 23 years. That when it grabbed before it was not such a grabbing as led him to believe he ought to put the truck aside and not use it. That the right front fender of his truck collided with Weisman's truck about 6 or 8 inches on the body that sticks out over it; that he merely hit the corner of the truck a kind of glancing blow as his truck went by. That if he hadn't swerved and had gone straight, there was a space of 18 inches to 2 feet between the right side of his truck and the left side of the parked truck.

The court admitted in evidence over defendant's objection subsection (b) (5) of Paragraph 211, Chapter 95½, Smith-Hurd Revised Statutes of Illinois, it being one of several sections of the Motor Vehicle Law of Illinois plead in the petition, and is as follows: "All brakes shall be maintained in good working order and shall be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle."

The appellant's contention, as embraced in its first two assignments of error, is that the court erred in admitting said subsection of the Illinois law in evidence and in submitting the case to the jury by plaintiff's instruction 1. This instruction, after requiring a finding as to the time, place and fact of the collision, and that plaintiff was exercising due care and caution for his own safety, continued as follows: "and if you further find that the brakes on defendant's truck were not maintained in good working order and were not so adjusted as to operate as equally as practicable with respect to the wheels on the opposite sides of said truck and by reason thereof, if you so find, the right front brake on defendant's said truck did grab, thereby directly causing said truck to run into and strike plaintiff's truck and damage the same and inflict bodily injury upon plaintiff; and if you further find that defendant, by and through its agent and servant, the chauffeur, then and there in charge of said truck, if you so find, knew or by the exercise of reasonable care could have known of the said condition of said brakes in time thereafter to have remedied said condition but failed to do so, and said failure, if any, was negligence, if you so find, and said negligence, if any, directly and proximately caused defendant's said truck to strike and damage plaintiff's truck and injure plaintiff, if you so find, then your verdict must be in favor of the plaintiff and against the defendant."

The gravamen of defendant's position is that, except as aided by conjecture or speculation, there is no evidence in the case that the brakes on defendant's truck were not maintained in good working order and so adjusted as to operate as equally as practicable with the respect to the wheels on opposite sides of the vehicle. The rule of law is, as stated by appellant, that a verdict cannot rest upon mere conjecture or speculation. Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167. And further, where a fact is established from which two or more inferences may be deducted of equal reasonableness, then there is no inference that may be indulged without mere speculation. Pape v. Aetna Casualty & Surety Co., Mo.App., 150 S.W.2d 569. And still further, that if the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and, if the evidence leaves it to conjecture, the plaintiff must fail in his action. Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45, 51, and cases cited. However, such rules of law have no application to the facts in this case. In this case there is no conjecture or speculation as to what was the direct and proximate cause of the collision. The defendant's driver said that when he applied the brakes, or "just touched my brake a little," the right front wheel locked and pulled the truck over to the right. He said, "I didn't swerve to the right; just like I got through telling you, the brake on the right front wheel locked and pulled it right in to it." It was not a conjecture or speculation but a fact that the driver applied the brakes, and it was likewise a fact and he so stated that the brake on the right front wheel locked and pulled the truck to the right. Whether he applied the brakes with little force by just touching the brakes, or with much force, the result was the same. And what was that result? The driver answers in no uncertain words, and without conjecture or speculation, and says, "The first thing I knowed the right front wheel locked and pulled me over to the right," or, "The right front wheel locked and pulled it right in to it." That was not a statement of one of two or more things that could have occurred, but rather it was a positive statement of the one and only thing that did occur. He had been driving automobile trucks for about 22 or 23 years, and while he said he was not a mechanic, he knew what every person experienced in driving any vehicle knows, i. e. that a brake locking or taking effect on the right-hand side of the vehicle only, will pull the vehicle to the right-hand side. That is a scientific fact that requires no proof. He knew that was what occurred as a fact, and he frankly stated it as a fact, and not as a conclusion or conjecture. The driver was not drawing an inference that the brakes were not maintained in good working order, but he knew as a fact that they were not, and testified as a fact that "The brakes didn't work all right, that is, sometimes they worked all right and sometimes they didn't." If the brakes had been in working order as the statute required, they would have been so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of...