Opinion
No. 21552.
March 5, 1951.
APPEAL FROM THE CIRCUIT COURT, COOPER COUNTY, SAM C. BLAIR, J.
Milford T. English, St. Louis, for appellant.
Lane Harlan, Boonville, for respondent.
This is an action for property damages arising out of an automobile accident. Plaintiff recovered judgment for $650 and defendant has appealed.
Plaintiff, 23 years of age and single, resided at the home of his parents located on Highway No. 40 six miles west of Boonville, Missouri. However, he was employed in Omaha, Nebraska, and it had been his custom to come home on week ends.
On the date of the accident, October 21, 1949, at about 2 or 3 p. m., plaintiff left Omaha in his 1948 Chevrolet coupe intending to go home. About 9:30 p. m., while proceeding east on Highway No. 40 he came to the top of the Herriman hill which is about 13 miles west of Boonville. From the top of the hill he could see a distance of seven or eight hundred yards. The hill is about 400 yards long and at the bottom is the Lamine River bridge, which is 70 or 80 feet in length. Coming down the hill plaintiff passed one truck. Ahead of it was defendant's truck also traveling east. Defendant's truck started across the bridge. Plaintiff testified that just before defendant's truck approached the bridge plaintiff started to pass it. Just then the truck driver "pulled over to the center of the road." Plaintiff testified that before undertaking to pass defendant's truck, and when about a car and a half lengths behind it, he blinked the lights and sounded the horn of his car. Plaintiff applied the brakes of his car but was unable to stop and the front of his car struck the rear of defendant's truck. At the time plaintiff's car was traveling 50 to 55 miles per hour and defendant's truck 40 to 45. The highway was dry. It was practically straight a distance of three quarters of a mile east of the Lamine River bridge. At the time there was no traffic going west. Plaintiff was an experienced driver. His car was in good condition and the brakes were in good working order.
James E. Seeley testified that he was a state trooper stationed at Boonville, Missouri; and that he was notified of the accident about 10 o'clock p. m., on October 21, 1949. He drove to the scene of the accident in his patrol car. Accompanying him were defendant's driver and plaintiff. On the bridge and near the center of the road he saw what appeared to be antifreeze. He questioned defendant's driver about the accident and the position of the truck at the time and the driver stated that "he pulled over to the center of the highway when he got on the bridge." Mr. Seeley also testified that he asked plaintiff how fast he was driving at the time of the accident and plaintiff stated "60 to 65 miles per hour."
Plaintiff's father, R. K. Kueckelhan, testified that he was in the garage business and had been so engaged for 27 years; that the reasonable cost of repairing the motor of plaintiff's automobile was between $450 and $475.
Plaintiff also called Robert Welch of Fayette, Missouri, who testified that he had been employed as a "body and fender" worker for eight years. He stated that the damage to the body of plaintiff's car, by his estimate, was $240.
At the close of plaintiff's case defendant filed its motion for a directed verdict, which was overruled. Defendant offered no evidence. The cause was submitted to the jury under instructions which are not here challenged. As stated, the jury's verdict was in favor of plaintiff. After an unsuccessful motion for new trial, defendant perfected its appeal.
Defendant's first contention is that plaintiff was guilty of contributory negligence as a matter of law. Under the settled rule in this state this can be sustained only if the facts in evidence and all reasonable inferences arising therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ.
Under the evidence the highway at the scene of the accident was straight and level. It was dry and clear of approaching traffic. There was ample room for plaintiff's car to have passed defendant's truck had the latter remained on the right-hand side of the highway. Plaintiff testified that prior to undertaking to pass defendant's truck he blinked the lights and sounded the horn of his car. In so doing he complied with the requirement of our statute. Plaintiff was not required to anticipate that defendant's driver would suddenly swerve the truck to the left and cause it to occupy the center of the highway, thus making a collision unavoidable. In view of all of the circumstances, we hold that whether plaintiff was exercising due care for his own safety was a matter for the jury to determine.
Defendant's remaining point is that the court erred in refusing to direct a verdict for it because plaintiff failed to prove his damages. This contention has no real merit. That plaintiff's car was badly damaged was not disputed. It had cost plaintiff $1575 and had not been long in use. Two expert witnesses placed the cost of repairing it at between $690 and $715. The amount of the verdict was well under those figures. We rule the point against defendant.
The judgment should be, and is, affirmed.
All concur.