Wininger v. Bennett
| Decision Date | 23 April 1937 |
| Docket Number | No. 5739.,5739. |
| Parties | WININGER v. BENNETT et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.
"Not to be published in State Reports."
Action by Everett Wininger against Charles A. Bennett and others. From a judgment for plaintiff, the defendants appeal.
Reversed.
Henson & Woody, of Poplar Bluff, for appellants.
William Oliver, of Chaffee, for respondent
This cause was instituted in the circuit court of Butler county, by the filing of a petition by plaintiff, respondent herein. Defendants filed their answer, and plaintiff filed a reply thereto. The cause was tried before a jury, resulting in a verdict in favor of plaintiff, in the sum of $1,221 for personal injury and $50 for damage to his automobile. Defendants filed a motion for new trial and motion in arrest of judgment, both of which were overruled, and the cause comes to this court on appeal by defendants.
This is an action for personal injury and property damage, as a result of a collision between plaintiff's automobile and defendants' truck. The accident happened about 8 o'clock on the evening of February 19, 1935, on highway No. 67, about 6 miles north of Poplar Bluff. Highway 67 at the point of the accident is paved with gravel, the traveled part thereof being about 18 feet wide.
Plaintiff was traveling toward Poplar Bluff, or south, and defendants' truck was proceeding in the opposite direction, or north. It was upgrade in the direction in which plaintiff was traveling.
Plaintiff's version of how the accident happened was substantially as follows: That he was driving his automobile south at a speed of from 30 to 35 miles per hour. With him, and riding in the front seat of his car, were his brother, Archie, and a woman by the name of Edna Bennett; that he was riding with his left arm out of his car; that when he got within three or four hundred yards of defendants' truck he saw that it was on the wrong side of the road coming straight toward him; that it continued to occupy that side as he approached it; that he did not slacken the speed of his car, but continued at the above rate until the two vehicles came together; that the left front corner of his car struck the truck behind the cab and about the center of that side; that his left arm was caught between the car and the side of the truck, was broken and bent back so that his hand broke the window of the back door of his car on that side; that no part of the truck entered his car, and that all of the damage to his car was back of the front door; that his arm was so injured that it was necessary to amputate it.
Plaintiff's brother corroborated his story of how the accident happened. They were all of the witnesses for the plaintiff. Edna Bennett was not present at the trial and did not testify.
John Bennett, the driver of the truck, Mary Trusty, an elderly lady, who was riding in the truck and whose household goods were being transported therein from Poplar Bluff to Des Loge, and Sylvester Franco, a farmer living about 200 yards north of the point of the accident, and who saw the accident, testified on behalf of defendants. All of these parties say that plaintiff was driving fast and zigzagging from one side of the road to the other; that just as he approached the truck, plaintiff swerved his car to the right, missing the front part of the truck, then immediately cut back to the left and struck the left side of the truck back of the cab and about the center; that the truck was on its right side of the highway; and that the vehicle would have passed in safety had plaintiff swerved his car to the left just before the collision. Both John Bennett and Mrs. Trusty testified that they could smell liquor on plaintiff's breath as they were taking him to a hospital. Plaintiff and his brother, in rebuttal, both testified that plaintiff had not been drinking and Dr. Kneibert said that when he treated plaintiff some time after the accident he did not smell any liquor on his breath.
Respondent not having filed any brief in this court, we only have the brief of appellants before us in this cause.
Appellants urge a number of assignments of error, and we shall consider those which we think are pertinent to the issues herein.
Appellants urge that, "The court erred in permitting plaintiff to introduce incompetent, irrelevant and prejudicial testimony, over the objection and exception of defendants." That, "The court erred in failing properly to rebuke counsel for plaintiff for the prejudicial remarks to the jury." That "The court erred in refusing defendants' instruction in the nature of a demurrer requested at the close of the whole case." That "The court erred in overruling defendants' motion for a new trial, and in rendering judgment on the verdict." That, "The court erred in overruling defendants' motion in arrest of judgment."
It is our opinion that plaintiff's own story convicts him of gross negligence. He states that he saw defendants' truck a distance of three or four hundred yards; that it was on the wrong side of the road until he got right up to it; that, knowing that defendants' truck was coming toward him on the wrong side of the road, plaintiff continued to drive at a high rate of speed, did not check the speed of his car, did not stop or turn in either direction, and did nothing whatever to avoid the collision, but drove his automobile into and against the side of defendants' truck.
Under all the rules of law, even though the driver of defendants' truck might have been negligent, and was driving on the wrong side of the road, it was the duty of plaintiff to exercise the highest degree of care for his own safety and to adopt all possible means to avert a collision between the two vehicles. R.S. Mo.1929, § 7775 (Mo.St.Ann. § 7775, p. 5197); Robertson v. Railroad Co. (Mo. App.) 264 S.W. 443, 445; Threadgill v. Railways Co., 279 Mo. 466, 214 S.W. 161; Jackson v. Telephone Co., 281 Mo. 358, 219 S.W. 655; Carroll v. Railroad Co. (Mo.App.) 229 S.W. 234; Cox v. Reynolds (Mo.App.) 18 S.W.(2d) 575.
On the proposition of the duty of the driver of a motor vehicle to exercise the highest degree of care for his own safety, this court in Robertson v. Railroad Co., supra, following the rule laid down by the Supreme Court, said:
Upon cross-examination plaintiff testified as follows:
Plaintiff further testified that as he approached the truck on the wrong side of the road and while he was traveling at a high rate of speed, he had his arm out of the window of his automobile. His arm was projecting so far out of his automobile that it was caught between the side of the automobile and the truck so that his hand was bent back and his fist broke the window in the back door of the automobile. Under the circumstances, as detailed by plaintiff himself, this act on his part constituted gross negligence. Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Carroll v. Transit Co., 107 Mo. 653, 17 S.W. 889; Gabriel v. Railroad Co., 135 Mo.App. 222, 115 S.W. 3; Fussellman v. Wabash R. Co., 139 Mo.App. 198, 122 S.W. 1137; Nivert v. Railroad Co., 232 Mo. 626, loc. cit. 643, 135 S.W. 33; Wheeler v. Wall, 157 Mo.App. 38, 137 S.W. 63. If plaintiff's story be true, he knew if he continued on his way there would be a collision, and that it would be on the side from which his arm was projecting.
In the case of Smith v. Ozark Water Mills Co., supra, this court denied recovery to one who was riding on the running board of an automobile, holding...
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