Opinion
No. 21743.
March 16, 1953.
APPEAL FROM THE CIRCUIT COURT, CHARITON COUNTY, G. DERK GREEN, J.
Errol Joyce, Brookfield, for appellant.
James J. Wheeler, Keytesville, Geo. S. Thompson, Salisbury, for respondent.
This is an action for damages to property brought by plaintiff, Harold McCloud, against defendant, Claude Saling. It arose out of a collision between plaintiff's automobile and defendant's pickup truck on Main street, in the town of Mendon. Main Street runs southeast and northwest. From a verdict and judgment for plaintiff in the amount of $300 defendant appeals.
The collision took place on May 1, 1951, at 5 p. m. Plaintiff's automobile was being driven by his brother, Billy McCloud. Billy, a timekeeper for the Santa Fe Railroad, had borrowed the car from plaintiff to drive to his (Billy's) work. Billy testified that he was proceeding southeastward on Main Street "looking at a woman and little girl, about 10 feet in front of me. I was watching her when something struck me;" that he later learned it was defendant Saling's truck.
According to the testimony, Main Street is between 85 and 100 feet in width. No center line was marked. It was customary for cars to be parked on each side of the street.
On the occasion in question, defendant had parked his truck at an angle on the east sided of Main Street. He went into a barbershop, then returned to his truck, got into it and started to back it out. After backing "just the length" of the truck he saw a car coming from the southeast and stopped in order to let it pass. After it had passed, he then started to back his truck again. Before starting to back the second time defendant said he "looked both ways". When the rear of his truck "lacked four feet of being out in the center of the street" the impact with the McCloud car occurred. When asked on direct examination if he observed "this McCloud car coming from the north", defendant answered: "No, sir, I never did see him." And in his cross-examination this appears:
"Q. Now, you say you didn't see him? A. I didn't see him.
"Q. Did you look? A. No. sir.
"Q. There was nothing to keep you from seeing him? A. No, I don't think so.
"Q. You say you looked and you didn't see him? A. That is right.
"Q. How do you explain the fact, that you looked but didn't see him." A. I didn't see him."
Six photographs showing the condition of plaintiff's automobile after the collision were offered in evidence and are before us. All of the damage to the car was on its left side, beginning from 6 to 8 inches back of the front headlight. Plaintiff's testimony correctly describes the car's condition: "The left hand front wheel had been bent, the left, front fender, the left door was caved in, the left fender torn off, the three glasses broke." There was no damage whatever to the front portion.
Defendant's first and chief contention is that the trial court erred in giving Instruction 1 on behalf of plaintiff. This instruction purported to cover the entire case and directed a verdict for plaintiff upon a finding that defendant's negligence directly contributed to cause the collision. In view of the peculiar situation involved in this case, we have reached the conclusion that if there was any error in the instruction it was not prejudicial to defendant.
It is to be kept in mind that Billy McCloud, the driver of the car, was merely a bailee of plaintiff. No element of agency or partnership is involved. The law of this state is settled that in a suit by a bailor of personal property against a third party for damages to the property while in the possession of the bailee, if there is no element of principal and agent, master and servant, or of partnership existing between the bailor and bailee, then the contributory negligence of the bailee is not imputed to the bailor, so as to constitute a defense. Spelman v. Delano, 177 Mo.App. 28, 163 S.W. 300; Norton v. Hines, 211 Mo.App. 438, 245 S.W. 346.
At defendant's request the court gave Instruction 7, which told the jury, in effect, that in the event it found that Billy McCloud's negligence was the sole cause of the collision, that plaintiff could not recover. That issue was resolved by the jury against defendant.
Thus the defendant is in the following position on this appeal. The negligence of Billy McCloud, the driver, was not the sole cause of the collision. Nor was his contributory negligence imputed to plaintiff. With these two elements eliminated, the only question remaining is: Was defendant negligent in any manner and did his negligence contribute to cause the collision? Under the law it was his duty to exercise the highest degree of care. In the exercise of such degree of care it was his duty, both before he began to back and while he was in the act of backing to keep a lookout. 60 C.J.S., Motor Vehicles, §§ 302, page 713. We have set out his testimony. He testified positively that he did not look. He looked before he started to back out the second time, but not while in the act of backing. He said he did not see the McCloud car prior to the collision, although there was nothing to prevent him from securing it. And there was not. It was broad daylight. He had an unobstructed view. To look was to see. The conclusion is inescapable that defendant exercised no care whatever to determine whether or not the McCloud car was approaching from the northwest. Defendant said his truck "was just barely creeping out." If so, he could have stopped it almost instantly. The fact that no damage was done to the front of plaintiff's car is significant. The left side, beginning 6 to 10 inches back of the headlight, was bashed in. This shows that the uninterrupted backward movement of defendant's truck was a proximate cause of the collision. On his own testimony, by which he is conclusively bound, defendant convicted himself of negligence which directly contributed to cause the collision. This is being the case, any error in the instruction was harmless. Under the statute, Section 512.160 RSMo 1949, V.A.M.S., this court is expressly forbidden to reverse the judgment of any court, unless we believe error was committed against the party appealing, "and materially affecting the merits of the action.
Defendant also contends that the court erred in refusing to sustain his motion for a directed verdict at the close of all the evidence. What we have said above necessarily disposes of this contention.
No complaint is made that the verdict is excessive, and, in fact, it is not.
The judgment should be affirmed. It is so ordered. All concur.