Wheeler v. Breeding

• Decision Date: 02 November 1937
• Docket Number: No. 5807.,5807.
• Citation: 109 S.W.2d 1237
• Court: Missouri Court of Appeals
• Parties: WHEELER v. BREEDING.

109 S.W.2d 1237

WHEELER v. BREEDING.

No. 5807.

Springfield Court of Appeals. Missouri.

November 2, 1937.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

"Not to be published in State Reports."

Action by Clarence Wheeler against Hugh Breeding. From a judgment for plaintiff, defendant appeals.

Judgment affirmed on condition that plaintiff file a remittitur; otherwise judgment reversed and cause remanded.

Phil M. Donnelly, of Lebanon, for appellant.

Thomas A. Shockley, of Waynesville, and Breuer & Northern, of Rolla, for respondent.

ALLEN, Presiding Judge.

This action arose out of an automobile accident. The cause was instituted by plaintiff, in the circuit court of Pulaski county, and, upon application of defendant, the venue was changed to Phelps county. Plaintiff filed an amended petition and defendant an amended answer, to which plaintiff filed a reply, and upon the amended pleadings the cause was tried, resulting in a verdict for plaintiff, in the sum of $2500. Defendant filed a motion for new trial, which was overruled, and the cause comes to us on appeal by defendant.

We think the statement of plaintiff, respondent, a fair one, and we have, in substance, adopted the same.

At the time of the collision, out of which this controversy arose, and long before, the plaintiff was engaged in the general merchandise, produce, and feed business in the city of Waynesville, and was the owner of a 1935 Ford V-8 truck, involved in the collision in question. Plaintiff did practically all of his own hauling of merchandise, produce, and feed, bought and sold through his business, and used his truck for that purpose. On July 16, 1935, plaintiff went to Springfield, Mo., in his truck and was bringing back, on that occasion, a load composed chiefly of flour and feed. On his return trip he had reached a point on United States highway 66, on the western outskirts of Waynesville, where there is located what is known as the Owl Cafe, where the collision occurred.

Highway 66, upon which he was traveling, at this point, runs substantially east and west, and has a paved slab in the center, sufficient for two lanes of travel. The Owl Cafe, where the collision occurred, sits back from the highway a considerable distance to the south, and there is an open space of something like 70 feet between the south edge of the pavement on 66 to the Owl Cafe, which space is graveled and used by the public, who patronize the cafe, for parking purposes.

The accident occurred at about 11 o'clock at night and a little to the west of the Owl Cafe. Plaintiff was driving his truck on the south lane of the highway, traveling east at a speed of about 35 miles per hour, When he reached what is known as Bohannon's Garage, or about 200 feet west of the Owl Cafe, he slowed down to about 30 miles per hour, and at that time saw defendant's truck and trailer, described as a convoy, slowly moving in the graveled open space south of the highway, about 20 feet, alongside of it. Plaintiff was then driving about 30 miles an hour; the pavement was clear ahead of him, and it was his intention to drive on past the convoy, which was still in the gravelway and off of the pavement, and moving along beside it. When he was about 30 feet away, the truck was suddenly turned across the highway, immediately in front of plaintiff, and too near for him to stop or swerve and avoid the collision. Plaintiff applied his brakes and undertook to avoid the collision by turning to the right and was in fact at the edge of the pavement to the south, when he was struck.

The convoy of defendant consisted of a truck, to which was coupled a trailer, the two together being about 40 feet in length. It was the truck that was turned sharply and suddenly onto the south lane of the highway in front of plaintiff's truck, when it was but about 30 feet away, as stated, and was across the south lane to the black line and the trailer was still substantially in the gravelway.

This convoy was owned and operated by defendant, for transporting automobiles, and was in the charge of and being driven by Harold French, an employee of defendant, at the time of the collision. His version of the accident was that he drove to the edge of the pavement and stopped; that he looked west and saw plaintiff's headlights a half a quarter away, and thought he had plenty of time to drive onto the pavement, and did so in low gear, moving from 2½ to 5 miles an hour, keeping a look back east. Plaintiff was coming from the west; that he (French) pulled straight across the pavement until the tractor was almost across the black line, and then turned west; that that was "the quickest way to get the outfit over the north side of the highway"; that he left the door open while driving onto the pavement so he could look back and see when the tractor got across the black line, so he could turn and get the trailer onto his side of the pavement. On cross-examination he testified that his convoy was parked in front of the cafe, 20 feet from the pavement. When ready to leave he started his motor, examined the lights and wiped them off, and ran the motor about 30 minutes before he left, and, when ready to start, pulled up to the pavement at an angle and stopped to see if the road was clear; that looking to the west, from whence plaintiff was coming, he saw his truck a little over a half quarter of a mile from him, but he could not tell how fast it was running. After looking to the west and seeing plaintiff approaching, he then looked towards the east to see if there was anything coming, and, after putting in some time looking towards the east, he saw nothing coming from that direction and pulled his truck onto the pavement, without again looking to the west to see how near plaintiff's car was, until he was upon the pavement.

According to plaintiff's testimony, he was but about 30 feet away when defendant's truck moved onto the highway, directly in front of him, as heretofore stated, and that, in an endeavor to avoid the collision, pulled sharply to the right, but was too near to avoid the collision, and the left front wheel of plaintiff's truck struck the convoy at the south edge of the pavement, about where the trailer was connected with defendant's truck.

Defendant's driver, French, gave no signal or warning, indicating that he was about to pull his truck onto the highway, before doing so.

The impact caused the heavy load on plaintiff's truck to crush through the gate or framework back of the driver's seat and knocked him forward against the steering gear of his truck, rendering him unconscious. When consciousness was restored, a short time later, plaintiff found himself pinned in the cab and unable to get out, but his cry for help brought assistance. That he was removed from the cab, put on the pavement, and with help was led towards the Owl Cafe, where he collapsed, and was placed on a cot.

Dr. W. J. Sell was called to attend plaintiff, and he testified that he found him in a "dauncy condition; was kind of confused," and didn't know what he was doing; that his face was bloody and there was blood on his hand; that he found a cut on the lower lip, which was about a half an inch in length and extended through the lip, which required one stitch to sew it up; that he found a cut on his hand which was about 2 or 2½ inches long, and put four or five stitches in it; that plaintiff complained of pains in his chest and he taped his chest; that as soon as he got the wounds dressed he was taken home; that he saw him the next morning and his condition was about the same as the night before; that he still complained of pains in his chest and arm; that he gave him some tablets to relieve his pain and later took him to Springfield, where X-rays were made of his arm and chest; that the X-rays did not reveal any fractures, and would not reveal any injury to soft substance; that he saw him once a day for eight days following the accident, and he came to his office several times to have his hand dressed, and was under his professional care two or three weeks; that he figured he would be disabled about six weeks, from the date of the accident.

Plaintiff stated that he was confined to his bed for two weeks, and it was a month before he could do any work after he got out of bed; that after some six weeks he assumed his duties, but was obliged to keep a helper along with him to perform a major portion of his duties, and particularly anything which required lifting. He said that he still suffered pain in his chest and his hand continued to swell up and bother him, and said: "Even today, when I do right smart lifting, like two hundred or one hundred fifty pounds, like that, it pulls me in the chest like, and my hand swells up tight as a band"; that he was in good health at the time of the accident and weighed 180 pounds; that he then weighed 160 pounds; that he suffered none of the things complained of before the accident.

Plaintiff stated that he expended around $135 for doctor bills, and was out of business for six weeks, and thereafter was obliged to take a helper with him to do the heavy work, as he was unable to lift; that he had a drawing account of $25 a week, and earned an additional $50 to $100 a week with his truck; that the truck at the time of the accident was worth $700 and after the accident he received $80 for it.

Defendant urges six assignments of error, the first of which was that the court erred in overruling defendant's peremptory instruction, in the nature of a demurrer, both at the close of plaintiff's testimony, and at the close of all the evidence. This assignment is urged on the theory that plaintiff was guilty of such contributory negligence as to preclude recovery, and that no denial is made or insisted upon that defendant was guilty of negligence, in driving onto the highway, in the manner which plaintiff's testimony shows he did.

In passing upon a demurrer it must be borne in mind that all...