West v. Jack Cooper Transport Co.

• Decision Date: 13 July 1964
• Docket Number: No. 50546,50546
• Parties: Louie R. WEST, Respondent, v. JACK COOPER TRANSPORT COMPANY, a Corporation, and Stephen D. Hinshaw, Appellants.
• Court: Missouri Supreme Court

Page 872

381 S.W.2d 872

Louie R. WEST, Respondent, v. JACK COOPER TRANSPORT COMPANY, a Corporation, and Stephen D Hinshaw, Appellants.

No. 50546.

Supreme Court of Missouri, En Banc.

July 13, 1964.

Rehearing Denied Sept. 14, 1964.

Albert Thomson, Harold T. VanDyke, John R. Cleary, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for plaintiff-respondent.

Ike Skelton, Jr., N. R. Bradley, Ike Skelton, Skelton & Bradley, Lexington, of counsel, for appellants.

EAGER, Chief Justice.

This case was transferred here from the Kansas City Court of Appeals by our order of transfer. Its opinion appears at 372 S.W.2d 642. The suit is one for personal injuries in which plaintiff recovered $15,000 against the driver and the owner of a transport tractor-trailer. The submission was solely under the Kansas 'last clear chance' doctrine; the collision occurred on old Highway 69 about two and one-half miles south of Stanley, Kansas, on May 23, 1958. The facts are rather fully stated in the opinion of the Court of Appeals, and we shall state only a brief outline, with such additions to the original statement as may seem pertinent.

Plaintiff, driving a Plymouth station wagon north, had been forced partially off of the blacktop road by an approaching car. This occurred at about the middle of a downgrade 'S' curve which swung rather sharply to the left and then to the right. Plaintiff testified that the right side of his car came in contact with a high bank on the right curve, there being little or no shoulder; the car then came back on the road and went into a spin. The road was wet and slippery. The car spun and slid on through the curve and came to rest at about the beginning of a straightway, still on the downgrade; it stopped substantially crosswise of the east lane of the highway. The back of the car was against the bank; the front end was at the center of the highway; the car was headed somewhat southwest, or slightly back toward the direction from which it had come. We are unable to tell whether the rear wheels were in a concrete drain or off the slab. Plaintiff testified that he was somewhat 'shook up'; he tried to drive the car forward, and it did go ahead three or four feet, but he was unable to proceed farther; he did not recall specifically whether the motor stalled, but the car rolled back to its original position. In a 'very few seconds' thereafter he saw the tractor-trailer outfit of defendant Cooper, driven by Hinshaw, coming around the curve to the south. The evidence most favorable to plaintiff indicates that this first view was at a distance of 213-225 feet. Immediately, plaintiff said, the transport (it was in fact a transport for the conveyance of automobiles, traveling empty) started skidding and it came on down the road sideways covering the whole road, until the tractor struck plaintiff's car, first near the left front wheel and, almost instantly, at the left rear wheel. The car was knocked or moved a distance of from 8-20 feet, 10-20 according to plaintiff, 8-10 according to others. After the collision the vehicles blocked the whole road, the rear of the trailer being off the road on the west side. While plaintiff watched the transport skidding towards him he did nothing; he testified that he just 'froze' to the wheel. There was evidence that the slope from south to north along this piece of road was 5.84%. It will not be necessary for us to consider plaintiff's injuries.

While plaintiff was in his original spin down the slope, the driver of a tractor-trailer approaching from the north saw what was happening and stopped north of the place where plaintiff's car came to rest. He stopped, of course, in his own right or west lane. A car traveling behind that tractor-trailer also stopped. From this point the driver of the tractor-trailer watched the subsequent events; during part of this time he was standing on his running board. The testimony as to the distance of this unit from plaintiff's car varied. There was substantial evidence from three witnesses that this distance was from 50 to 80 feet (north of plaintiff's car), although plaintiff made an estimate of 150 feet.

The defendant driver testified: that as he rounded the last curve on the wet, slippery roadway, at about 30 miles an hour, he first saw the other transport apparently stopped, and almost immediately saw plaintiff's car extended across the east (his) side of the road about 100 feet away; that he already had his foot on the brake pedal and immediately applied his foot brake; that this takes effect first on the rear dual wheels of the trailer, next on the rear dual wheels of the tractor, and last on the front axle of the tractor; that his unit began to skid, the trailer veered out to the left and slid down the hill sideways; that there was dirt on the right side of the road, and that the trees and brush on the curve (at that time) grew out to the edge of the pavement; that in the time and distance available he could not have swerved to the left side of the road without hitting the other tractor-trailer. The unit of the defendants was 50 feet long, overall. Hinshaw testified that he tried to straighten out his tractor and trailer with the steering wheel, but was unable to do so.

Various points were briefed by appellants in the Court of Appeals and most of them are re-briefed here. We have determined that we need consider only two,--the submissibility of the case under the Kansas last clear chance doctrine and Plaintiff's Instruction No. 1. On the first, we agree with the Court of Appeals; on the other we disagree. In all other respects we concur in the opinion of the Court of Appeals, and we shall not extend this opinion by discussing those points.

On the contention that a verdict should have been directed for the defendants, it is again urged vigorously here that the evidence failed to show when plaintiff's negligence ceased, when his peril thus became helpless and inescapable, where defendant's truck was at that time, and that defendants could thereafter have taken action to avoid the collision under the existing road conditions. Basically, defendants insist that plaintiff's negligence continued because he could have opened his door and stepped out of the car at any time during the 20 to 30 seconds prior to the actual collision, and particularly during the 5 seconds or so in which defendant's truck was skidding down the hill. It is true that under the Kansas law a plaintiff whose negligence continues to the time of collision and operates concurrently with that of defendant, may not recover under this doctrine. Vail v. Thompson, 360 Mo. 1009, 232 S.W.2d 491; Eubank v. Kansas City Terminal R. Co., 346 Mo. 436, 142 S.W.2d 19; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P.2d 449, 92 A.L.R. 1. It is also true that there must be substantial evidence to show that the defendant could have acted to avoid the collision after plaintiff's situation was discovered or should have been discovered. Ross v. Fleming, 165 Kan. 279, 194 P.2d 491; Marshall v. St. Louis-San Francisco Ry. Co., 361 Mo. 234, 234 S.W.2d 524. It has been a little difficult for this writer to understand the statements in many of the Kansas cases to the effect that plaintiff's negligence must have ceased when one of the very foundations of the Kansas last clear chance doctrine is that plaintiff's own negligence placed him in the perilous position, and there he remains; obviously, the theory has been that the occurrence of helpless peril is concurrent with a cessation of negligence, even though the peril was brought on initially by plaintiff's negligence. This has been suitably explained in the very recent case of Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, where the Court said at loc. cit. 536: 'The use of the phrase 'that plaintiff's negligence had ceased' has caused some confusion. The phrase means, and perhaps the better term is, 'that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.' If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.' Thus the remaining question is,--what could the defendant do after plaintiff's position became helpless?

We agree with the Court of Appeals that the jury here, on the most favorable evidence, could have found that plaintiff's position was helpless from the time defendants' unit began to skid sideways down the road, in...