Williamson v. Winfrey, 54060

• Decision Date: 14 July 1969
• Docket Number: No. 2,No. 54060,54060,2
• Citation: Williamson v. Winfrey, 444 S.W.2d 495 (Mo. 1969)
• Parties: Renee Lucille WILLIAMSON and James L. Williamson, Appellants, v. Arnold A. WINFREY, d/b/a Jack Star Mail Route, Respondent
• Court: Missouri Supreme Court

Page 495

444 S.W.2d 495

Renee Lucille WILLIAMSON and James L. Williamson, Appellants, v.Arnold A. WINFREY, d/b/a Jack Star Mail Route, Respondent.

No. 54060.

Supreme Court of Missouri, Division No. 2.

July 14, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 8, 1969.

Per Curiam Opinion Modified on Courts' Own Motion Sept. 16, 1969.

Gray & Friedman, Charles E. Gray, Robert F. Ritter, St. Louis, for plaintiffs(appellants).

Joseph H. Mueller, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-respondent.

LAURANCE M. HYDE, Special Commissioner.

Action for $17,500.00 for personal injuries to Renee Lucille Williamson, hereinafter called plaintiff, Count I; and for $7,500.00 for her husband for medical expenses and consortium loss, Count II.Verdict for defendant and plaintiff have appealed from the judgment entered.

Plaintiff's Volkswagen was struck by defendant's truck while she was making a left turn from Highway 50 into a driveway.Defendant concedes error in InstructionNo. 4 authorizing a verdict for defendant if plaintiff'failed to signal her intention to turn'(defendant having no evidence to support such submission); and also in sustaining defendant's objection to the portion of the closing argument of plaintiff's counsel relating to the failure of defendant's driver to sound the horn of his truck, this being supported by all the evidence.However, defendant contends these trial errors are immaterial because plaintiff was guilty of contributory negligence as a matter of law.Our view is that the alleged contributory negligence of plaintiff was a jury issue so we reverse and remand.

The collision occurred between 7:30 and 8:30 P.M., August 30, 1965.It was dark and had been raining.Plaintiff, with her three small daughters in the back seat, was waiting in the driveway of the Morris farmhouse for her husband who was discussing farm business with Morris, when a tractor trailer truck stopped on the north side of the highway after a loud clank and turned on its flashing lights.Plaintiff drove out of driveway to the east and stopped by the tractor unit to find whether the driver needed any assistance.Plaintiff stopped with the left wheels of her car on the pavement and the right wheels on the shoulder.After conversation with the driver she observed defendant's truck coming very far back.Plaintiff said she'pulled onto the the highway, turned on my left turn signal and proceeded down the highway, proceeded to make a left turn'(at the Kemmer farm driveway on the north side of the highway) and 'was struck by the oncoming truck from the rear.'From defendant's truck she heard 'no horn, no squealing brakes, nothing.'Plaintiff had almost completed her left turn into the Kemmer driveway (front wheels on the north edge of the pavement) when her car was struck.Plaintiff's twelve-year-old daughter said she saw defendant's truck 'one or two hills back' when plaintiff started to pull away from the disabled truck.She said when the truck passed the stalled tractor trailer, the truck driver was 'turned around left in his seat' and appeared to be looking back at the stalled tractor trailer.According to plaintiff's measurements, the distance from the Morris driveway to the point where the cab of the disabled truck had stopped was 210 feet; and the Kemmer driveway ws 150 feet east of that point.After the collision plaintiff's car was in the ditch 165 feet east of the Kemmer driveway and defendant's truck was 130 feet east of the driveway also in the ditch.Plaintiff did not know where defendant's truck was when all of the wheels of her car got on the pavement or when she started to make her left turn.Defendant's driver gave no signal before or after passing the disabled tractor trailer.

The driver of defendant's truck said he saw the marker lights on the disabled truck when he was 'quite a little' to the west but did not see plaintiff's car until he topped a little rise which he estimated as four or five car lengths west (estimated between 40 and 50 feet or about the distance across the courtroom).However, he said he then also saw the truck driver on the pavement 'over at the car talking' to plaintiff and said 'he trotted back across the road to his truck * * * after I topped the hill.'He said he had come over the hill at 55 miles per hour and then reduced speed to between 40 and 50 miles per hour.(He later said he topped the hill at 35 miles per hour having slowed when he saw the clearance lights on the truck).He said he'pulled to the middle of the road and went on through.'He said he did not see the Volkswagen moving 'until it was right in front of me,' headed 'into the driveway across the road'; and that 'she had already crossed the eastbound section of the pavement.'He did not 'see her start from a stopped position and travel eastwardly for any distance before she started turning left.'He further testified 'Q.And in her moving that distance (from the tractor to the driveway) you at no time saw her?A.No sir, not until I hit her.'

The negligence submitted by plaintiff was failure to keep a careful lookout.Defendant's truck driver's testimony aids plaintiff to make submissible case on that issue.If he could see the tractor trailer driver standing by plaintiff's car and then see him trot back to his tractor before his truck reached that point the jury could reasonably find he must have been more than 40 or 50 feet from it when he saw them even if his speed was only 35 miles per hour.Plaintiff could see the tractor trailer from the Morris driveway which plaintiff's evidence of measurements shows was 210 feet.Furthermore, although defendant's driver estimated the distance between the tractor and the Kemmer driveway to be 35 to 40 feet, plaintiff's measurement was 150 feet.Defendant's driver's testimony was that he never saw plaintiff's car again until it was headed into the driveway and plaintiff had evidence that defendant's truck driver was looking back at the tractor trailer while he was passing it.A reasonable inference is that defendant's driver never looked at plaintiff's car again after he saw the truck driver leave it and he undertook to go between the tractor trailer and plaintiff's car without slowing his truck may more or looking at plaintiff's car.

Defendant cites such cases as Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626, holding no jury case where the plaintiff's...