White v. Burkeybile, 50515
| Decision Date | 08 February 1965 |
| Docket Number | No. 50515,No. 2,50515,2 |
| Citation | 386 S.W.2d 418 |
| Parties | Robert C. WHITE, Appellant, v. Raymond BURKEYBILE, Hershell Haworth, Jr., and Ulyan A. Martin, Respondents |
| Court | Missouri Supreme Court |
Farrington & Curtis, E. C. Curtis, Thomas Strong, Springfield, for respondent Raymond Burkeybile.
James H. Keet, Jr., and Horace S. Haseltine, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for appellant.
This is an action to recover damages in the sum of $100,000 for personal injuries sustained by the plaintiff when a truck driven by the defendant Burkeybile backed onto plaintiff's legs while plaintiff was undertaking to repair a tire chain on the right rear wheel of a Volkswagen automobile bus in which he was a passenger and which was owned by the defendant Haworth and was being operated by the defendant Martin. At the close of plaintiff's evidence, the trial court directed a verdict in favor of all three defendants. The plaintiff's motion for a new trial was overruled and he appealed.
After the transcript of the record on appeal was filed in this court, the defendants Haworth and Martin paid the plaintiff $2500 and plaintiff executed a covenant not to sue. Thereupon, the plaintiff dismissed his appeal as to these defendants leaving it pending as to the defendant Burkeybile only. This court has jurisdiction of the appeal because the amount remaining in dispute exclusive of court costs exceeds the sum of $15,000
On this appeal the plaintiff contends that he made a submissible case on primary negligence, that he was not guilty of contributory negligence as a matter of law and, in any event, he made a submissible case under the humanitarian doctrine. He also contends that the court erred in excluding certain parts of defendant Burkeybile's deposition offered in evidence as admissions against interest. In addition to countering the plaintiff's contentions, the defendant Burkeybile asserts that the trial court erred in failing to quash the service of summons as to him because of improper venue. In determining the sufficiency of the evidence to support a submission, the reviewing court must consider as true the evidence favorable to the plaintiff's case together with all favorable inferences that can reasonably be drawn therefrom, and evidence to the contrary must be disregarded. We will confine our statement of the facts to the evidence essential to a determination of the questions presented. For convenient reference, we will generally refer to the defendants in the trial court by their surnames.
The plaintiff, aged firty-one, was a musician and professional entertainer residing in Springfield, Missouri. Haworth, also a resident of Greene County, owned a Volkswagen automobile equipped with a bus body, which was used to transport entertainers to and from out-of-town engagements. For this service he was paid by the booking agency on a mileage basis. The entertainers paid no part of the transportation expenses. On March 15, 1960, a troupe consisting of the plaintiff, Haworth, Martin, and L. D. Keller, were transported in the bus from Springfield to Oskaloosa, Iowa, to fill an engagement. The evening show was completed about 10 p. m. and shortly thereafter the four began the return trip on U. S. Highway 65.
Haworth was driving his bus when they left Oskaloosa but sometime thereafter, probably at Indianola, Iowa, Martin took over the operation and control of the bus with Haworth's permission and continued to drive during the time in question. Snow was falling in Iowa and it became heavier as the troupe proceeded south in Missouri. Also a wind was blowing causing snow drifts to form on the highway. At Princeton, Missouri, tire chains were put on the bus by a service station attendant. Before the group reached Trenton, links of the chain on the right rear wheel became loose and were striking the underside of the fender or body of the bus, but there was no place open along the highway where it could be repaired until in the vicinity of Trenton members of the group observed the lights of a maintenance building of the Missouri Highway Department. Martin drove onto the parking area and stopped near one of the buildings. At that time the plaintiff was riding in the right front seat next to Martin the driver. Haworth and Keller were reclining on seats or benches in the back portion of the bus; they were apparently asleep as they had taken no part in the discussion between Martin and the plaintiff regarding the loose chain. It was about 5 a. m. and various highway maintenance vehicles and equipment were parked around the building. The lock on the door of the bus on the driver's side was broken and could not be opened. The plaintiff got out on the right side, went into the building and obtained a piece of wire from one of four or five men in work clothes who were standing around a stove. The plaintiff then went back to the bus, obtained a flashlight from Martin who had remained in the bus, and told Martin to see that the emergency brake was on since he was going to wire the links of the chain back in place. The plaintiff then went behind the bus, crawled partially under it at the right rear wheel with the lower part of his body from the waist down extending beyond the right side of the bus. While he was in this position undertaking to repair the chain, the defendant Burkeybile, an employee of the highway department, entered a maintenance truck parked nearby and backed it in such a manner that its left rear wheels equipped with heavy duty chains rolled upon plaintiff's feet and legs injuring him severely. The medical evidence relating to plaintiff's injuries was omitted from the transcript since it has no bearing on the issues presented.
From the testimony and a plat and photographs in evidence, it appears that the maintenance depot is on the south side of U. S. 65 (Trenton business route) which runs generally east and west at this point. There were two buildings, gasoline pumps, and cinder and chat piles on the area which is paved with asphalt. The building with which we are chiefly concerned is one-storied, of brick construction and sometimes referred to as the garage. According to the plat in evidence, it is approximately 40 feet wide east and west and 80 feet long north and south. The east side of this building is about 50 feet west of the west side of the entrance from the highway to the area. On this east side there are four overhead doors, each about 12 feet wide, obviously intended to admit heavy equipment. In the upper half of these doors, there are two rows of panes consisting of eight panels each. On the north side of the building near the northeast corner, there is an ordinary-sized door which furnishes access for persons entering the building. There is evidence that the snowfall had stopped entirely; if it was snowing at all, it was very light, or the wind may have been stirring up some flakes from the ground. The parking area was covered with snow but it was not keep and was pretty-well packed or had been 'bladed off'.
The defendant Martin was a resident of Nebraska at the time of trial and his deposition was read by the plaintiff. This and other evidence offered by the plaintiff tended to prove that when Martin drove onto the lot several pieces of highway maintenance equipment were parked on the east side of the garage building. The truck which injured the plaintiff was the most northern vehicle. It was parked headed west about a foot north of the northernmost overhead door and about foor feet east of the building. No part of the truck was in front of the door. The tail and parking lights of the truck were on and the motor was running. A motor grader headed west was parked with at least a portion of it south of the north door. The grader was considerably longer than the truck. Martin stopped the bus about two feet behind the grader headed west so as not to block the pathway to the overhead door. The right side of the bus was about a foot north of the north side of the grader and about seven feet south of a prolongation of the south side of the Burkeybile truck. Martin had his head and taillights on and the motor running when the plaintiff went into the building to get the wire. The top of the bus was dark green and the lower part was light green. When the plaintiff came out of the building, he could see the lights on the bus. When the plaintiff went into the building, he passed within four or five feet of the left side of the Burkeybile truck and within about a foot and a half of the front end.
Shortly after plaintiff got the flashlight from Martin and went to fix the chain, Martin saw Burkeybile at the left front corner of the truck; he appeared to be coming from the building. Burkeybile went to the left side of his truck, got into the driver's seat, backed it east for a short distance, then turned it so that the rear end of the truck was moving southeast toward the right rear portion of the bus and the place where the plaintiff was fixing the chain. When Martin saw the truck moving toward the bus and plaintiff he tried to sound the horn of the bus but it would not work. The plaintiff screamed when the truck wheel went onto his legs and the truck was stopped in that position. When Burkeybile moved his truck forward, the spinning action of the wheel pushed the plaintiff several feet behind the bus. When the occupants got out of the bus, they saw the plaintiff lying in the snow behind the bus. He was wearing dark clothing. If Burkeybile had backed straight east and had not turned to the southeast, he would not have injured the plaintiff or come close to the bus.
The evidence as to visibility was not altogether certain. There was testimony that the accident happened about 5 a. m. on March 16, 1960, although Martin thought it was about 6 a. m. There were three floodlights which cast their light mostly on the ground in front of the building. Lights inside...
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