Summary
In Moss v. Stevens, Mo., 247 S.W.2d 782, a truck driver was sought to be charged in a refused instruction with the statutory violation in passing a parked tractor from whence the decedent there came under the rear wheels of the truck and was killed.
Summary of this case from Calvert v. Super Propane CorporationOpinion
No. 42782.
April 14, 1952.
APPEAL FROM THE CIRCUIT COURT, FRANKLIN COUNTY, R. A. BREUER, J.
Delworth Akers, Clayton, for appellants.
G. W. Marsalek and Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, Jenney Cole, Union, for respondent.
In this action Oliver J. Moss and Lorraine E. Moss seek $15,000 damages from Glen Stevens for the alleged wrongful death of Linda Diane Moss, plaintiffs' infant daughter, who was run over by a rear wheel of defendant's truck. Plaintiffs predicated a recovery on the theory defendant failed to maintain a proper lookout. The jury returned a verdict for defendant. Plaintiffs appeal, presenting issues respecting the admission of testimony and the giving and refusing of instructions.
Mr. and Mrs. Moss had two children, Nancy, who was about 5 years of age, and Linda, who was about 3 years and 3 months old. The parents worked in St. Louis, Missouri, and the children were with Mr. and Mrs. Jesse T. Mastin, their maternal grandparents, the parents paying the grandparents for the care of the children.
The Mastins lived on a 10-acre tract about 8 1/2 miles north of Sullivan, Missouri, on the west side of a north-south county road (Route 2) about 75 to 100 feet north of Highway U. Highway U turns northeast where said county road connects with it, and there is a slight down grade coming off of Highway U onto the county road. Mr. Mastin, plaintiffs' witness, described this county road as "pretty level," hard and dry, without much loose gravel, and "one lane of travel."
The accident happened in the early morning, between 8:30 and 9:00 a. m., October 13, 1950. Mr. Mastin was operating a Farmall, Model C, tractor, pulling a box trailer, 18 inches deep, by means of a tongue 2 to 3 feet long. After unloading some corn, he drove out of the field north of the house at a gate just north of the yard with the two little girls in the trailer, turned south on the county road and stopped near the gate to his yard. The distance between the two gates, as measured, was 86 feet. Mrs. Mastin closed the gate to the field and followed to take the children out of the trailer.
Mr. Mastin testified he stopped the tractor and trailer about 2 feet east of his yard fence; that his tractor was 4 feet or a little wider, and the trailer not quite so wide. He "judged" the road was about 35 feet wide.
Glen Stevens (defendant) worked for his father, Roy K. Stevens, who represented the International Harvester Company at Sullivan. He was driving an empty, open bed 1946 International truck to a farm beyond the Mastin home on the county road. Ben Strothkamp was riding in the cab with him. The bed of the truck was about 8 feet wide and extended 8 to 10 inches beyond the dual rear wheels. They traveled about 20 miles an hour over Highway U, but just as they reached the intersection two dogs came out on the highway and defendant slowed down and shifted gears or stopped, he was not positive about the stop, for the dogs to move out of the way of the truck. The truck had four gears forward and he started forward in third gear (next to high), turned left onto the county road to proceed north, and saw the Mastin tractor and trailer and three people about 100 feet away; Mr. Mastin on the tractor, Mrs. Mastin standing at the west side of the trailer, and a little girl standing or kneeling in the trailer. He stated the west wheel of the tractor was in the west track of the road, would not say it was on the wrong side of the road but it was on the middle of the road, and he did not have too much room in which to pass. They were in front of him in the road, he did not have to look to the side, and he watched them and the road all the time. He continued in third gear, traveling not over 5 miles an hour. Strothkamp testified it was not more than 10 miles an hour. They estimated the truck passed 2 to 4 feet east of the tractor and trailer and within 12 to 18 inches of the fence on the east side of the road. They did not see Linda Diane. No horn was sounded.
Mrs. Mastin first saw the truck coming down the grade from Highway U while walking up to the trailer. The tractor had stopped. She did not know the speed of the truck, but it was not going "at a high speed at all." She was west of the rear end of the trailer helping Nancy out. Linda got out by herself at the front end, got down on the tongue. Linda turned around and started out and "I guess she started across," she was moving, but not running. The truck was right there when Linda started out and the back wheel, Mrs. Mastin thinks, hit her. Linda just got there when struck. She thinks Linda never got in front of the truck. She saw the wheel hit her.
Mr. Mastin was facing the direction from which the truck came; but he had his head down securing the brake. He never saw the truck until after the accident. He heard it but could not tell whether it was on the highway or the county road. He did not know how far it was from his tractor as it passed; and did not have any idea as to its speed. He first saw the truck when he straightened up, looked back, and saw it stopping.
Just as Stevens was passing Mrs. Mastin he noticed an expression on her face and remarked to Strothkamp that she must have seen a snake or something in the trailer. They looked out the rear vision mirror and as soon as the truck bed permitted saw the little girl lying in the road. They stopped and went back.
Mrs. Mastin picked Linda up to carry her into the house and the child bled, leaving a definite mark where she picked her up. Linda was dead. Mrs. Mastin thought Linda had moved out two feet east of the tractor. Mr. Mastin said she was three to four feet east of the tractor in the middle of the road. He did not know how close the truck passed to the tractor, but it was "almost in the middle of the road, the wheel that hit her," "west of the middle of the road." The truck was in the middle of the road.
T. R. Schafer was the coroner and was at the scene soon after the accident. The tractor was in the road and Mr. and Mrs. Mastin, Mr. Stevens and Mr. Strothkamp were there. He testified Mrs. Mastin told him where she picked the child up, although she did not walk out to the road and point it out; that there was a pool of blood in the road that was about 8 inches in diameter; that he took measurements and it was 10 feet and 6 inches from the fence post on the east side of the road, approximately 100 feet from the edge of Highway U, and 6 feet east of the Mastin tractor.
Plaintiffs say Mr. Schafer's testimony as to the distance between the blood on the highway and the Mastin tractor was hearsay and inadmissible. Mrs. Mastin testified that they covered the blood right away, but did not state whether this was prior to or after Mr. Schafer's arrival. Mr. Schafer was not cross examined as to whether the pool of blood had been covered over. His measurements were not hearsay but testimony to be weighed and valued by the jury. Clark v. Reising, 341 Mo. 282, 107 S.W.2d 33, 34[2-4]; Vortriede v. St. Louis Pub. Serv. Co., Mo.App., 58 S.W.2d 492, 493[2]; Young v. Bacon, Mo.App., 183 S.W. 1079, 1082[8]; Goss v. Williams, 196 N.C. 213, 145 S.E. 169, 172[4]; Annotation, 92 A.L.R. 475.
Upon Mrs. Mastin stating she had not seen any dogs on the highway, she was asked on cross examination if she had not told Mr. Schafer that Mr. Stevens was a kind man because he stopped for the dogs in the road. She denied having made the statement. Mr. Schafer, over objection, testified that she told him, the morning of the accident, that the truck had stopped where the road intersects with Highway U to avoid hitting the dogs, and he [Mr. Stevens] was a kind man. Plaintiffs' contention is that this testimony was on a collateral matter, and defendant should not have been permitted to contradict Mrs. Mastin's answer. State v. Taylor, 134 Mo. 109, 154(a), 35 S.W. 92, 102(a); State v. Valle, 196 Mo. 29, 33, 93 S.W. 1115, 1116; Iron Mountain Bank v. Murdock, 62 Mo. 70, 75(4); Carder v. Primm, 60 Mo.App. 423, 424. However, if defendant stopped his truck, as Mr. Schafer testified Mrs. Mastin said he had, this fact had some probative value and tended to corroborate defendant's testimony that he was driving in third gear and at a slow rate of speed as he passed the Mastins approximately 100 feet north of the stop. When Mrs. Mastin denied making the statement, proof that she had made it would go to her credibility, her recollection of the facts, veracity and bias. Mrs. Mastin's statement of her opinion of defendant's kindness was not material; but it was part of a general statement corroborating defendant on his operation of the truck. Plaintiffs objected on the ground it was "an improper way to approach the question for impeachment." See Nanney v. I. H. Shell Son, Mo.App., 138 S.W.2d 717, 719[4]; Jones v. Austin, Mo.App., 154 S.W.2d 378, 380[4, 5].
Plaintiffs contend the court erred in refusing an instruction, so far as material here, to the effect that if the jury found "that on said date the said Linda Diane Moss was a pedestrian on Highway U, Franklin County, Missouri, at the place described in evidence, * * * and if you further find and believe from the evidence that the defendant failed to drive his truck as close to the righthand side of the road as practicable and if you believe that such failure, if any, was negligence" et cetera.
This instruction placed the accident as occurring on Highway U. All the testimony in the case established that the little girl was not on Highway U but on the county road and north of Highway U.
The county road on which the accident occurred, according to plaintiffs' and defendant's witnesses, was a one lane highway with but two wheel tracks. Plaintiffs' witnesses estimated its width at 35 feet, but did not establish the width of the portion of this one-lane highway used for public travel nor how much of the traveled portion of the highway, if any, was to the east of defendant's truck as it passed the tractor. The requirement to operate motor vehicles "as close to the right-hand side of the highway as practicable" § 304.020(2), RSMo 1949, V.A.M.S. does not receive a literal construction but has reference to the attending circumstances and to the usable or passable way. McGuire v. Steel Transport Co., 359 Mo. 1179, 225 S.W.2d 699, 702[3-5, 7]; Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298, 303[13]; Harmon v. Fowler Packing Co., 129 Mo.App. 715, 720, 108 S.W. 610, 611; Darnell v. Ransdall, Mo. App., 277 S.W. 372, 373[2]; Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839, 845. In Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, 542[1-6], instructions 1 and 2 each submitted several independent grounds of negligence in the disjunctive, including the ground that the operator of the respective automobiles failed and neglected to "operate his said automobile as near the righthand side of the street as practicable and in so doing was negligent." The court, however, considered only the submitted charge of negligence in failing to slow down for the intersection in instruction 1 and the operation of the automobile at an excessive and dangerous rate of speed under the circumstances in instruction 2. The court held sufficient fact issues to guide the jury in determining the issue of negligence had not been submitted and that the submissions gave the jury a roving commission to speculate and to make their own determination as to what conduct constituted negligence; and, without ruling the other objections, suggested, in the event of another trial counsel modify the instructions to conform to the law announced in the cases cited. However, the court did consider that a submission in instruction 6 to the effect: "or (c) carelessly and negligently operated his car on the lefthand side of Whittier street while passing cars stopped at the intersection mentioned in evidence" was subject to like criticism and reversible error.
In some simple factual situations the instant instruction might suffice; but if the attending circumstances of a one-lane county road with but two wheel tracks for travel are to be taken into consideration the instant instruction submitted a mere conclusion of law and not sufficient facts and circumstances for demonstrating negligence and liability, thus giving the jury a roving commission to determine negligence under the conflicting evidence of the instant record on the issue. We understand Highway U is a higher type highway than the county road involved. The action of the trial court is presumed to be correct and plaintiffs have not established error in the refusal of the instruction as submitted. State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, 423[1, 3]; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366, 368[2]; Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298, 303[15, 16]; McGuire v. Steel Transportation Co., supra.
The foregoing disposes of the issues developed in plaintiffs' brief. An assignment of error against defendant's cautionary instruction is not well taken, as plaintiffs apparently concede. Aronovitz v. Arky, Mo., 219 S.W. 620, 624[7]; Heibel v. Ahrens, Mo.Sup., 55 S.W.2d 473, 476[3]; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137, 1141 et seq.; Wolfson v. Cohen, Mo.Sup., 55 S.W.2d 677, 680[9-14].
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.