West v. Jack Cooper Transport Co.

• Decision Date: 07 October 1963
• Docket Number: No. 23625,23625
• Citation: 372 S.W.2d 642
• Parties: Louis R. WEST, Plaintiff-Respondent, v. JACK COOPER TRANSPORT COMPANY, a corporation, and Stephen Douglas Hinshaw, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 642

372 S.W.2d 642

Louis R. WEST, Plaintiff-Respondent, v. JACK COOPER TRANSPORT COMPANY, a corporation, and Stephen

Douglas Hinshaw, Defendants-Appellants.

No. 23625.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1963.

Ike Skelton, Jr., N. R. Bradley, Ike Skelton, Lexington, for appellants.

Albert Thomson, Harold T. Vandyke, John R. Cleary, Kansas City, for respondent.

ANDREW JACKSON HIGGINS, Special Justice.

This is a suit for damages for personal injuries submitted under the Kansas Last Clear Chance Doctrine. Judgment was for plaintiff for $15,000.00, and defendants have appealed.

On May 23, 1958, plaintiff was operating a Plymouth station wagon northbound in the east lane of U. S. Highway 69. This highway was an asphalt or 'blacktop' road. There had been rain during the day. There was some dirt on the roadway and it was wet and slick. As plaintiff drove northward and at a point about 2 1/2 miles south of Stanley, Kansas, the road was downgrade. It curved to the left, then to the right, (in an 'S'), and then straightened out for a distance of about one and one-half blocks. The time was about 6:50 P.M., and although lights were in use, it was not yet dark.

Plaintiff stated that he met a southbound car which forced him off the roadway and onto the shoulder; that when he came back to the roadway his car skidded and spun on the road; that it went off on the east side of the road where its right side went against a steep embankment; that after a final spin the car came to rest with its rear against the embankment; that its front headed uphill to the southwest near the center of the highway, and it blocked the east side of the road. He stated that he attempted to drive the car forward and turn it to the right so as to get into his traffic lane; that it went up a few feet; that he killed the engine and the car then fell back into its former position; that he saw the lights of defendants' northbound tractor-trailer come around the curve to the south; that he 'froze' to the steering wheel and watched its approach; that it seemed as though he were frozen; that the tractor-trailer was sliding and coming down the road broadside; that it struck his car on the left side and knocked it farther north and downhill 10 to 20 feet; that a southbound tractor-trailer had stopped headed toward him and he judged its distance as some 150 feet north of his car.

There was testimony to the effect that defendants' tractor-trailer came to rest cross-wise of the highway; that the car when struck was north of a certain tree which was struck and barked by the trailer; that the car when struck was knocked farther northward from the tree.

John H. Allen, a registered land surveyor, stated that he surveyed and measured the distance from the above mentioned tree south to the curve and that such distance was 213 feet; that he could see from the point so determined northward to the tree, and could see the roadway between and what might be in or on it; that the grade of the roadway there is 5.84%.

Frank Wessling, an officer of the Kansas City, Missouri, Police Department, testified as to stopping distances of a tractor-trailer such as the one here involved. He stated he had 16 years of experience in investigating more than 10,000 traffic accidents; that he had attended traffic schools and had studied accidents and their cause and prevention; that he had ridden in the cab of tractors similar to the one here while conducting experiments in studying traffic accidents. He stated that a truck such as driven by defendant when travelling at 30 miles per hour, (the speed indicated by the evidence), would travel 45 feet per second; that stopping distance under conditions as shown here would be 88 feet after application of brakes, and that total stopping distance would have to include reaction time; that reaction time for an average person is 3/4 second. There was evidence that Hinshaw had his foot on the brake of his tractor prior to the time he decided to attempt to stop. The witness stated that this fact would cut the reaction time to 1/2 second during which time the vehicle would travel 22 feet, and that stopping distance of the truck including such reaction time would then be 110 feet. He also stated that with the truck 200 feet south of the Plymouth, a point when and where the driver could have seen the Plymouth on the highway in a position of danger, the truck could have been driven to the left of the car and thus have avoided the collision. According to some of the testimony it would have been 200 feet to the Plymouth and another 150 feet to the other tractor.

Charles Gomerdinger testified he was in a car following a tractor-trailer southbound on 69 highway. He stated that from his view north of the accident he saw plaintiff's car spinning on the road; that it went into an embankment and set out in the highway from east to west; that the truck ahead of him stopped 60 to 80 feet north of plaintiff's car. He admitted having previously stated that distance to be 200 feet. He stated that he saw defendants' truck come from the south around the curve to the south and saw it start skidding; that it came down the highway broadside and struck the automobile.

Defendant Hinshaw stated that when he drove the tractor-trailer around the curve he could see down the road from 100 to 200 feet; that he saw plaintiff's car across the roadway 100 feet north; that he then had his foot on the brake and promptly applied same; that the tractor-trailer began to skid and slid sidewise down the highway. He stated that he saw a tractor-trailer parked farther down the road and did not think he could pass the station wagon to the west without striking the other tractor parked to the north.

Robert B. Lund, Trooper, Kansas Highway Patrol, qualified as an expert on traffic control and accident prevention with many years experience and training. He gave his opinion that defendants' tractor-trailer going 30 miles per hour could not have been stopped under the conditions existing at the time and place of the collision within less than 185 feet including reaction time.

This case is governed by the Last Clear Chance Doctrine of Kansas which differs from the Humanitarian Doctrine of Missouri.

Definitive statement of the Kansas Last Clear Chance Doctrine appears in a 1958 case as follows: 'The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff's negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a result of such failure on the defendant's part plaintiff was injured.' Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, l. c. 366. ¹ This or virtually identical statement of the doctrine has been adopted by the Missouri courts in cases ² arising under Kansas law as does the instant case.

Defendant contends that plaintiff failed to state a last clear chance case because he pleaded that he was not negligent in a prayer for relief on primary negligence which was coupled with allegations and prayer for relief under last clear chance.

Without setting forth plaintiff's petition in detail, suffice it to say that plaintiff in the first instance pleaded that he was free from negligence. He also pleaded a denial of any negligence and stated that if he was guilty, his negligence had ceased prior to the collision and in time for defendant to have acted so as to avoid injuring him. The Supreme Court of Kansas was faced with a similar pleading in Gibbs v. Mikesell, supra, and held, 325 P.2d l. c. 366-367, that pleading primary negligence and the last clear chance doctrine in the alternative was not repugnant. In Eubank v. Kansas City Terminal Ry. Co., 346 Mo. 436, 142 S.W.2d 19, the Supreme Court of Missouri affirmed a judgment for plaintiff under a submission of primary negligence and negligence under the Kansas last clear chance doctrine. We view plaintiff's petition here in light of these authorities and hold that such alternative pleading does not defeat plaintiff's statement of a cause of action.

Defendants next contend that plaintiff made no case because the evidence fails to show when plaintiff's negligence ceased, when his peril became inescapable, where defendants' truck was at such time, and what defendants could have done to avoid the accident. It is the law as previously stated that the negligence of plaintiff which placed him in a position of danger must have ceased before the last clear chance doctrine may be effectively invoked. It is also true that if plaintiff's negligence continues until the collision occurs, or to a time after which defendant could not in the exercise of due care avoid the collision, then, no submissible case is made. In other words, so long as plaintiff's negligence continues it is concurrent with that of defendant, it has not ceased, and thus, an essential element of plaintiff's case would be missing.

It is plaintiff's theory here that he came into a position of inescapable danger or peril at a point when defendants' tractor-trailer was 200 to 213 feet south and upgrade of plaintiff; that defendants could swerve to avoid within that distance, or could then stop within 110 to 185 feet. There is evidence to that effect and there is also evidence to the effect that plaintiff's position was then clearly visible to defendant. It is also shown that plaintiff's car was blocking the east side of the road. Obviously, if Hinshaw continued unchecked on his course, collision would result. These circumstances placed a duty on defendant to stop or swerve in order to avoid collision, if possible, which defendants did not do here. Defendants contend that even so, plainti...