Wines v. Goodyear Tire & Rubber Co.

• Decision Date: 19 February 1952
• Docket Number: No. 28237,28237
• Citation: 246 S.W.2d 525
• Parties: WINES v. GOODYEAR TIRE & RUBBER CO., Inc., et al.
• Court: Missouri Court of Appeals

Page 525

246 S.W.2d 525

WINES v. GOODYEAR TIRE & RUBBER CO., Inc., et al.

No. 28237.

St. Louis Court of Appeals, Missouri.

Feb. 19, 1952.

Moser, Marsalek, Carpenter, Cleary & Carter, Parks G. Carpenter, Robert G. McClintock, St. Louis, for appellants.

Fred B. Whalen, Warren Grauel, St. Louis, for respondent.

HOUSER, Commissioner.

This is a suit for property damages arising out of an automobile collision. L. G. Wines sued Goodyear Tire & Rubber Co., Inc. and its employee Henri E. Renard, charging a violation of a city ordinance requiring that left turns be made from the inside lane of traffic or as near the center line of the street as possible. Defendants appeal from a judgment obtained against them in the sum of $152.83, claiming error in overruling the motions of both defendants for a directed verdict on the ground that plaintiff's evidence shows conclusively that plaintiff was guilty of contributory negligence as a matter of law; in overruling the corporate defendant's motion for a directed verdict on the ground that agency was not established; and in the giving of plaintiff's Instructions 1 and 2.

The collision occurred on January 27, 1948 at approximately 11:30 o'clock p. m. at the intersection of Chippewa Boulevard and Lansdowne Avenue in the City of St. Louis. At that time the streets were covered with ice in spots and there was considerable snow on the streets. At that place Chippewa Boulevard is a six-lane east and west trafficway. Four of the lanes are 'traveling lanes' and two are 'parking lanes'. Each lane is 12 feet in width. Lansdowne runs north and south.

Plaintiff's evidence showed that he, accompanied by his wife, was driving east on Chippewa Boulevard at a speed of 10 to 15 miles per hour. Prather Street runs north and south and intersects Chippewa Boulevard 2 blocks west of the place of collision. When plaintiff's automobile was 15 feet west of the intersection of Chippewa Boulevard and Prather Street the automobile driven by Renard turned to its right into Chippewa Boulevard from Prather Street and headed east in front of plaintiff's car. Plaintiff had been traveling in the middle of the 3 eastbound lanes. After coming into Chippewa Boulevard the automobile driven by Renard proceeded east in the middle lane. Plaintiff's car then 10 feet from the rear of defendants' car, moved to plaintiff's left, until the wheels of plaintiff's car straddled the line between the left-hand lane and the middle lane of the 3 eastbound traffic lanes. Plaintiff's car was then traveling about 8 feet from the center line of Chippewa Boulevard. Thereupon defendants' automobile 'pulled over into the curb lane'--'straightened up'--and continued to operate in the curb lane at a distance of about 4 feet from the curb--'almost entirely in the curb lane'--for approximately a half block. From Prather Street to Lansdowne Avenue, where the collision occurred, the two vehicles maintained the same speeds and the distance between them did not change. As plaintiff's automobile approached the Lansdowne intersection with Chippewa Boulevard, and while plaintiff's car was about '12 or 13 feet'--'10 or 15 feet--behind' defendants' car, and to the left of defendants' car, Renard 'comes out, almost in the intersection of Lansdowne and he swerved from the curb across in front of the path of my (plaintiff's) car,' without giving any signal before making the turn--'he just made a sweeping turn in front of the automobile.' Plaintiff termed it a 'sudden' turn--'his car swerved in front of mine'--plaintiff's car was 'roughly 10 or 12 feet' from defendants' car when Renard made his left turn. When Renard turned plaintiff 'tried to swerve to the left', sounded his horn, and applied his brakes, all at the same time 'as near as possible' in order to 'miss hitting him.' Defendants' car kept coming. Plaintiff's car was sliding in a northeasterly direction on the ice at an angle. Plaintiff 'tried to cut the wheels over gradually' to make a partial turn, but was only partially successful, being prevented from turning it further because of the ice on the street. There was a collision 'right at the intersection' with the left front wheel of plaintiff's car on the center line of Chippewa Boulevard and the front of defendants' car slightly north of the said center line. Plaintiff's car was still sliding, and both cars were facing northeast, at the time of the collision. The right front fender and grill of plaintiff's car came in contact with the left rear bumper or corner of defendants' automobile. Plaintiff testified that under the conditions existing at the time the shortest distance in which he could have stopped was 'about 35 feet'. The rear window of defendants' car was covered with frost so as to obstruct visibility through the window.

Contributory negligence as a matter of law?

Allellants claim that the trial court erred in not directing a verdict for them on the ground that plaintiff, by his own evidence, convicted himself of contributory negligence as a matter of law. The contention is that instead of driving his automobile as near the right-hand side of the street as practicable as required by RSMo1949, Sec. 304.020, V.A.M.S., paragraph (2) (in the right-hand or south lane of the three eastbound traffic lanes) plaintiff drove in the left or north lane of the three eastbound lanes; that in so doing plaintiff was guilty of negligence per se; that had plaintiff maintained his proper position behind defendants' automobile in the southernmost (right-hand) lane the accident never could have happened, so that plaintiff's failure to comply with the statute is the proximate cause of the accident. In support of this argument appellants cite Melber v. Yourtee, Mo.Sup., 203 S.W.2d 727, loc. cit. 730; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Beck v. Wurst Coal & Hauling Co., Mo.App., 293 S.W. 449; Benoist v. Driveaway Co. of Missouri, Mo.App., 122 S.W.2d 86; Felts v. Spesia, Mo.App., 61 S.W.2d 402; Myers v. Nissenbaum, Mo.App., 6 S.W.2d 993, and Rader v. David, Mo.App. 207 S.W.2d 519, loc. cit. 523.

Respondent, contending that it is for the jury to determine the issue whether plaintiff was operating his car as close as practicable to the right curb and whether if there was a violation of the statute, such violation was the proximate cause of the collision, cites Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743; Smith v. Weilbacher Truck Service Co., Mo.App., 35 S.W.2d 996; Roland v. Anderson, Mo.App. 282 S.W. 752; Willis v. Applebaum, Mo.App., 26 S.W.2d 823; Benoist v. Driveaway Co. of Missouri, supra; Plater v. W.C.Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658; Smart v. Raymond, Mo.App., 142 S.W.2d 100, and Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713.

While the provisions of RSMo 1949, Sec. 304.020(2), V.A.M.S., apply to vehicles operating on multi-lane highways or streets, and failure to comply with this section constitutes negligence per se, Melber v. Yourtee, supra, and cases cited, these rules of the road are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions. Not are they to be given a literal construction which will result in an absurdity. Stack v. General Baking Co., supra. A showing that the driver of a motor vehicle operating in a multi-lane trafficiway collides with another while he is traveling in some lane other than the right-hand lane does not necessarily end the inquiry, take the case from the jury, and require the trial judge to direct a verdict against him. 'Instead, all of the circumstances of the case, including the condition of the street and its relative freedom from other vehicles or its more or less crowded condition, must be considered in determining the position upon the street which the vehicle must occupy in order that the person driving it shall be free from negligence; * * *.' Bour, C., in Burris v. Kansas City Public Service Co., supra . Ordinarily failure to keep as close to the right-hand side of the highway as practicable would be negligence. Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956. There may be exceptional circumstances, however, in which the peremptory command of the statutory rule of the road may be required to yield to other considerations. For instance, at least under emergency circumstances 'a motorist meeting another automobile may turn to the left.' Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 545 and cases cited, Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736. And in Willhite v. City of St. Louis, supra, the court recognized that there are circumstances when it may become a jury question whether it is negligence for one vehicle to pass another on the right. In the Willhite case the court said, 224 S.W.2d loc. cit. 958: 'The rules of the road, established by the statute, must be given a reasonable construction and be reasonably applied to unusual or emergency circumstances.' In McGuire v. Steel Transp. Co., 359 Mo. 1179, 225 S.W.2d 699, 702, the court said: 'These rules of the road do not confer absolute rights, but impose reciprocal duties which may be qualified by the circumstances.'

Ordinarily it is a jury question whether the driver of a vehicle has violated a statutory rule of the road and whether the violation was causally connected with the casualty. Only in those cases in which the minds of reasonably men cannot differ on the question should the trial judge direct a verdict on the ground that the driver of the vehicle is guilty of negligence as a matter of law. This is not such a case, for here are unusual circumstances which in the minds of reasonable men might result in a finding that there was no violation of the statute or that the violation was not the proximate cause of collision. The streets were icy. There was considerable snow. The weather conditions were such that the inside rear window of the Goodyear car...