Opinion
No. 21543.
November 5, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, ALLEN C. SOUTHERN, J.
Moss H. Silverforb, Kansas City, for appellant.
Sprinkle, Knowles Carter, Kansas City, for respondent.
Plaintiff (respondent) obtained a verdict and judgment against defendant for $1,800 because of personal injuries and property damage alleged to have been caused by the negligence of defendant when an automobile driven by plaintiff collided with a truck of defendant which, at the time, was parked on a public highway in the night time without lights, and not as near the right-hand side of the highway as practicable. From this judgment defendant perfected its appeal.
This is a companion case to that of Taylor v. Silver King Oil Gas Company, reported in Mo.App., 203 S.W.2d 147. The facts in this case are substantially the same as the facts in the Taylor case, and it will not be necessary for us to review them as fully as was done in the Taylor case. We refer those interested to the detailed statement of the evidence as recited in that opinion.
Briefly, the evidence most favorable to plaintiff is that he was the owner of a certain Nash sedan which he was driving from Chicago to Kansas City on June 5, 1942. About 10 p. m. he was driving westward on highway No. 36, about 3 miles east of Cameron, Missouri; that as he arrived at the crest of a hill he met a car going eastward and both cars dimmed their lights; that immediately after passing this car plaintiff adjusted his headlights to full power as he started down the grade on the west side of the hill; that he saw the wheels of defendant's truck about 35 or 40 feet in front of him and standing on the north side of the concrete slab without a tail light, or a light of any kind; that he applied the brakes and swerved his car in a southwesterly direction but the right front fender struck the truck; that his car passed the truck on the south side and turned over on the highway about 15 or 20 feet in front of the truck; that after the collision the truck driver told him that he was working on the lights and that the lights had been out and that he had stopped to fix them; that there were no lights on the truck and something was wrong with the generator. With the assistance of the truck driver the car was righted and the plaintiff drive on to Kansas City. His passenger, Donald Taylor, testified substantially to the same facts.
Defendant's evidence was to the effect that its truck was being driven westward on highway 36 and did not come to a stop until after plaintiff's car turned over on the highway; that its lights, both front and rear, were on, and that plaintiff's car did not come in contact with the truck.
It is not within the province of this court to undertake a reconciliation of the sharp conflict in the evidence. We must review the evidence in the light most favorable to the plaintiff in passing on defendant's first contention that the court should have sustained its motion for a directed verdict at the close of all the evidence because "there was no evidence of any negligence on the part of the appellant (defendant)." This point was so fully discussed in our opinion in the Taylor case, supra, and the evidence being substantially the same, that we need not lengthen this opinion by again reviewing the evidence and authorities. We hold that the evidence was sufficient to submit the issue of defendant's negligence.
Defendant also contends that its motion for a directed verdict should have been sustained because the plaintiff was guilty of contributory negligence as a matter of law. It argues that plaintiff's testimony shows that he saw the truck when he was 40 to 50 feet from it; that the south side of the highway was clear and unobstructed and that plaintiff could have and should have turned his automobile to the left and passed in safety; that plaintiff's speed was about 40 miles an hour and that at such a rate of speed he could have safely passed the truck on the left-hand side. We think this is clearly a question for the jury.
Defendant also argues that the plaintiff was guilty of contributory negligence, as a matter of law, because he failed to keep a proper lookout for other vehicles upon the highway. There is no merit in this contention. The evidence is that plaintiff had met another car at the crest of the hill, had dimmed his lights and then returned them to full brightness, and at that instant he saw the black wheels of the truck about 35 or 40 feet in front of him; that the body of the truck was dusty and blended with the color of the concrete highway and was not as easily seen as the black wheels. It was a flatbed truck and the sides of the bed were only about 2 feet high. Under such circumstances, it cannot be said, as a matter of law, that the plaintiff was guilty of contributory negligence in failing to see the body of the truck in sufficient time to avoid the collision. This was a question for the jury. Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 300. Defendant cites Van Sickel v. F. M. Stamper Co., Mo.App., 198 S.W.2d 539; State ex rel. Kansas City Southern Railway Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911. The facts in those cases are so different from the facts in the instant case that they are inapplicable.
Defendant also contends that the verdict and judgment are against the physical facts. This contention is based on the premise that, as plaintiff's car reached the crest of the hill, the body of the truck would have come into the driver's view before the wheels and, therefore, plaintiff could and should have seen the body of the truck before he saw the wheels and had sufficient time to avoid the collision. This contention overlooks the testimony that the color of the back of the truck blended with the pavement, and that up until the time the automobile, coming from the opposite direction, had passed, the lights on plaintiff's automobile were dimmed and did not throw a beam more than 30 or 40 feet ahead, and that plaintiff's lights were not turned to full brightness until after the two cars had met and passed. Thus it cannot be said, under the facts, that the judgment is against the physical facts. Defendant cites Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311; Davidson v. Missouri Orpheum Corp., 236 Mo.App. 1025, 161 S.W.2d 707; State ex rel Kansas City Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. A reading of the facts of those cases will clearly distinguish them from the instant case.
Defendant argues, at considerable length, that its driver had been operating trucks over the highways of this state for more than 30 years, and that it is unbelievable that one with so much experience would stop a truck on a main highway just over the crest of a hill without lights and attempt to fix the lights, knowing that someone might run into the truck and injure him. From this basis, defendant argues that it can be inferred that the plaintiff was not looking ahead in a careful and prudent manner to observe what was on the highway. We think it is common knowledge that long experience in the operation of a motor vehicle does not immunize a driver against negligence. However, defendant's contention on this point was a question for the jury and not for this court.
It is next contended that the court erred in giving plaintiff's instruction No. 1. This instruction is the same as that copied in the opinion on the Taylor case, supra, except the jury was required to find that plaintiff was driving the automobile and that he was exercising the highest degree of care in the operation of the same. For this reason, we will not set out the instruction. Defendant's first criticism is that the instruction does not take into consideration that its driver was confronted with an emergency and was unable to operate the truck safely off the traveled portion of the highway. The same contention was ruled adversely to the defendant in the Taylor case on the theory that there was no pleading or evidence upon which to base the same. Defendant's evidence was that the truck was in motion at all times. It did not plead or undertake to prove that its driver was confronted with an emergency.
The next criticism is that the instruction assumed the failure of defendant to stop its truck with its right side as near the right-hand side of the highway as practicable, and without a red light, without requiring a finding on that issue by the jury. A mere reading of the instruction will dispose of that criticism. The instruction states: "The court instructs the jury that if you find and believe from the evidence * * *", then follows the requirement to find certain facts which are not in dispute, and then follows this requirement: "* * * and if you further find and believe from the evidence that said truck was not parked and standing so close or near to the right hand side of said highway as practicable, and if you further find that it was more than one-half hour after sunset and said truck was not displaying a red light mounted at the back of said truck and directed towards the rear * * *." This language requires the jury to find these facts; they are not assumed. There is no merit in this contention.
The next criticism leveled at that instruction is that it did not require the jury to find that the failure of the defendant to park the truck as near the right-hand side of the highway as practicable, and the failure to have a red light or signal, was negligence. The failure to park the truck as near the right-hand side of the highway as practicable and the failure to have a rear light or signal were clear violations of Secs. 304.020(1), 304.380 and 304.450, R.S. 1949, and was negligence per se. It is settled law, where there is no affirmative defense, that an instruction which requires the jury to find facts which, if true could only mean that the defendant was guilty of negligence per se, or as a matter of law, then the instruction is good even if it does not require the jury to find that the facts constitute negligence, because the law draws the conclusion in such cases. Taylor v. Silver King Oil Gas Co., supra, 203 S.W.2d 156; Waters v. Crites, 350 Mo. 553, 166 S.W.2d 496, 498. The defendant relies on the case of Anderson v. Kraft, Mo.App., 129 S.W.2d 85, 89. That case is not in point because the issue decided was that the instruction was broader than the pleadings. The other two cases cited by the defendant are Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, and Roberts v. Wabash R. Co., 153 Mo. 638, 134 S.W. 89. Based upon those cases, defendant reverts to his contention that the instruction should have affirmatively met the issue of an emergency which confronted its driver. As already stated, there is no pleading or evidence in this case raising an issue of emergency. Those cases are not in point.
The last assignment asserts that the verdict for $1,800 is excessive. The testimony fixed the damage to plaintiff's car in excess of $500, although the petition asked for only $500 damage to the car. Plaintiff's personal injuries were limited to abrasions and bruises of the left temporal area; left parietal area; left shoulder and forearm, and his hip and back. The next morning after the accident plaintiff went to see Dr. Myers, who examined him and found bruises and abrasions about his head, and muscle spasms of the shoulder, back and hip; that there was a marked limitation of motion in the left arm and that it could not be raised; that he recommended the application of heat and a few days of rest. Plaintiff remained home for three or four days and then reported to the doctor by telephone who advised continued application of heat. In about a week plaintiff returned to his employment in Chicago. Dr. Myers saw plaintiff again in 1946 and plaintiff complained of pain and stiffness in his left shoulder, elbow and lower back, and of headaches, which would last as long as a week at a time. Other than those complaints, plaintiff appeared to be in good health. The plaintiff testified that since the accident he had been unable to lift heavy objects and had to give up that type of work at his employment. The doctor's opinion was that, if the pain and limitation of motion in the arm and back existed for a period of four years or more, as plaintiff testified, it would be permanent. We cannot say the verdict shocks the conscience of the court.
Finding so reversible error, the judgment is affirmed.
All concur.