Opinion
No. 7093.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, DOUGLAS COUNTY, TOM R. MOORE, J.
Paul Boone, Gainesville, for appellant.
John M. Bragg, Ava, for respondents.
This is an action for damages for the loss of two cows, killed by defendant's truck on Highway No. 14, in Douglas County, Missouri. The claim was filed in the Magistrate Court, and transferred, by change of venue, to the Circuit Court, where it was tried before the court September 20, 1951, resulting in a judgment for plaintiffs for $350. Defendant appealed.
Plaintiffs' petition states that on June 9, 1950, while plaintiff was driving his dairy cows from the barn to a pasture, and crossing Highway No. 14, two of plaintiffs' cows were killed by being struck by defendant's truck, driven in a negligent and careless manner, to their damage in the sum of $350.
The answer of defendant was a general denial and a counterclaim for damages to his truck in the sum of $200.
The evidence shows that plaintiffs are husband and wife and, at the time, lived on a farm in Douglas County, owned by wife's father, Floyd Swearengin. Highway No. 14, from Ava to Springfield, passes through this farm running in a southwesterly direction. The barn, with two connecting lots, bordered on the north side of the highway and was situated on a high bank above the highway. Plaintiffs kept their ten dairy cows in the lot next to the highway and a gate opened out into a passage or roadway leading to the highway. The pasture field was south of the highway and the gate thereto was about 300 feet east from the point where the driveway entered the highway. The distance from the gate lot to the edge of the highway was 75 feet and there was a deep cut on this driveway 65 feet long and the evidence shows that, while the cattle were in this cut, they could not be seen by traffic coming from either direction on the highway. The end of the cut was 10 or 15 feet from the edge of the pavement or blacktop.
The evidence is undisputed that the highway, where it enters the farm operated by plaintiffs, some four-tenths of a mile east of the intersection of such highway with the driveway at the barn, is higher land than that at the barn and there is a curve at the highway where said road enters the east side of the farm. The testimony shows that from this curve the barn and cattle in the lot might be seen by traffic coming on the highway. The testimony shows that from this curve coming west on the highway toward the barn there is a deep dip in the road and that traffic in this dip cannot see either entrance of the driveway on the road or the lot at the barn and that traffic using said highway could not have any vision of the place where this passageway or roadway comes from the barn to the highway until it reached the top of the hill after passing through the dip, which measurements showed was about 600 feet from the place where the roadway coming from the barn enters the highway.
The evidence is undisputed that from the point on the highway 600 feet east of the barn to the roadway coming from the barn is downgrade and that just after you pass this roadway to the barn is a steep hill or dip in the road on the west side of said barn.
The testimony is undisputed that sometime between seven and eight o'clock on the morning of June 9, 1950, plaintiff drove his cattle from the lot at the barn through the cut or passageway into highway No. 14, taking them to the pasture on the south side of the farm and to the gate some 300 feet east on said highway; that defendant's truck, loaded with 24,000 pounds of cottonseed meal, coming from the east, struck and killed two of plaintiffs' cows while on said highway.
There is no dispute that the entire weight of the truck, with its load, was about 39,000 pounds and that the truck was traveling at the time of the collision, or, at the time he discovered the cattle on the road, at about 40 or 45 miles per hour. The tractor pulling the trailer was a three-ton Ford tractor and the trailer a 30-foot single axle trailer. Defendant, at the time, was going from Gainesville to Springfield and traveling west on said Highway No. 14.
Elwood Brixey, plaintiff, and the only eyewitness offered by plaintiffs to the accident, testified that the distance from the lot gate to the edge of the blacktop was 75 feet. He gave this testimony: "Q. At the cut where you drive these cattle through, there is no view on either end of the highway that you can see any cattle in the cut? A. No, not in the cut."
He stated that the distance from the end of the cut to the edge of the pavement was 10 or 15 feet and the distance in the cut was about 65 feet from top of the bank to the edge of the blacktop. He testified that one could see from the curve to the edge of the cut a distance of fourtenths of a mile east on the highway. "Q. When you started driving these cattle down from the top of that bank, what did you do that morning? A. I just drove them down like any ordinary person would drive them."
He stated that he always looked up and down the road two or three times before driving his cattle into the highway and that on that morning he did not see anything coming. He then testified:
"Q. Now, did you have some trouble with one of the cows? A. Drove them into that cut and some of them was already into the road, and this black cow she whirled around and come back — there was some grass on top of the bank and I stepped up there and just turned around and just stepped up there to holler at this cow, and at that time I glanced up and saw this truck coming and so I rushed off down the bank to get her into the road. By that time he was there.
"Q. Now, that is the first time you ever saw the truck? A. Yes, sir."
He stated when he looked first the cows were in the lot. He saw no one, he then went into the lot and drove the cows out the gate.
"Q. Go on then and tell what happened in your own words? A. When these cows got into the road, they strung out — most part was on the left side of the road and some over in the ditch, so when this truck came down and crossed the white line, he picked this cow in the ditch — she must have been turned, her back end must have been turned against the bank, because it picked her right out and just seemed to pick her up and carry her. By that time this black cow, the last cow — and she got across the white line on the right hand side of the road, he hit her and knocked her back over where I was standing in the ditch about three or four feet on the right of the drive."
When asked if the black cow was hit about opposite the driveway he testified he could see hair which was about in the middle of the approach and that she had to be about across the white line on the left side. He stated the first cow hit was on the south side of the road going toward the gate in the ditch. He stated that the black marks made by the truck on the road were just above the approach to the gate leading into the pasture and that from that point to where he struck the first cow was 200 or 350 or 300 feet. He then testified that the first cow hit was about 50 or 75 feet from the driveway and that the point where the truck first crossed the white line to the left of the road was 300 feet. He stated the first cow was carried over 100 feet; that the second cow was carried about 30 or 40 feet. He stated the truck went 300 feet after it struck the last cow before it stopped. He stated the driver of the truck said that the reason he crossed the center line was to miss the rest of the cows and he stated he was traveling at a speed of 40 or 45 miles per hour. He testified the value of the cows to be, one $200 and the other $150, and that they belonged to plaintiffs.
The evidence is that the road was straight from the east leading to the barn for some 600 feet east.
On cross-examination, when asked if he did not turn the cows out on the morning of the accident without looking for traffic, he gave this answer: "A. No, sir, I always look."
He testified there were two lots at the barn but that the cattle yard is 75 feet from the highway. He testified when he saw the truck coming he took a couple of steps up on the bank and holloed at this black cow and she made a jump off into the highway; that the truck was four-tenths of a mile away when he first saw it. He stated he drove the black cow right down into the highway and by the time she got there the truck was there. He stated the cow was up at the gate right next to the fence and that, while he was driving her 75 feet, the truck came four-tenths of a mile. He testified the truck turned left three or four feet east of the pasture field gate. He gave this testimony:
"Q. You saw the truck tracks there on the highway turning to the left in the road? A. It was across the white line on the left side of the road.
"Q. How far did you say that point was? A. Approximately three hundred feet.
"Q. How far was it from that point to where the cow was hit? A. I would say around two hundred and fifty."
He stated that was the first cow that was hit. He also testified that the truck had been off the blacktop on the shoulder some distance before it hit this cow. He gave this testimony:
"Q. Now, where was the other cow hit? A. Well, they were all scattered all over the road.
"Q. Were they all out on the road at the time the truck got there? A. Yes, sir, they were except — let's see — yes, they were all out there.
"Q. How far? A. Well, they were to fifty or sixty feet when the truck hit the first one — she was one of the first ones out."
He testified that the last cow had gotten across the highway and he figured about 40 feet east of the driveway at the time the truck struck her. He said there were 10 cows in all. As to the slope of the road as it approached the driveway he gave this answer: "A. There is a drop and it comes to a hill." As to the drop he gave this answer: "A. Yes, a steep drop."
Floyd Swearengin, father of plaintiff's wife, corroborated plaintiff's testimony as to the black marks on the road and as to the dips in the road. He stated he did not see the accident. He stated that the truck crossed the white line in the road some two feet east of his driveway. In fact, his testimony was practically the same as to the physical markings on the road as plaintiff's testimony.
G. R. Prock, the sheriff, also corroborated plaintiff's testimony as to the truck marks left on the road and the distances. He did not see the accident. He stated that one cow was carried about 100 feet and the other about 40 feet but he didn't know how far that was from the place where the truck crossed over to the left side of the road. He stated that defendant said he saw the cattle first when he came out of the dip but he wouldn't be sure that defendant pointed out where he was at the time he first saw the cattle.
The balance of plaintiffs' evidence was about the same as that of plaintiff.
Defendant, Joe Luna, testified as to the size of the truck and trailer and the weight thereof and said the accident happened about ten minutes after seven A. M. He gave this testimony:
"Q. Tell the court in your own words what happened when you came around there that day? A. I just come down through there and after I got up on top of that little high place and got out of that dip, the cattle shot out in front of me. I tried to go around them on my left and I hit them."
He stated he did not notice the approaches as he approached the driveway and the only approach he saw was the one the cattle came out of. He stated he had seen these two approaches since the accident and that one was on the right hand and the other on the left hand side of the road. He testified:
"Q. Now, what did you do when you first saw these cows come out? A. I put on my brakes and pulled my truck over to the left as quick as I could and tried to get around them on the left, and they kept coming on across the road and I didn't.
"Q. Why did you turn toward the left? A. Well, they was coming across the road. * * * They had the road full of them."
He gave this answer: "A. They were coming out of the driveway and I figured I could get around them over there, and they come across the road so fast I could not get around them."
The witness testified that the cows were on both sides of the road and all over the road and stated he left the blacktop with his left wheel just as far as he could go without getting into the ditch. He gave this testimony:
"Q. Do you know about where you were when you hit the first one? A. I would say right straight across from the driveway myself.
"Q. Where were you when you hit the other one? A. They were both hit about the same time along in there. I carried one on down the road and the other one fell off at the lower edge of the drive.
"Q. Where did you stop the truck? A. Down in that hollow.
"Q. I will ask you to tell the court whether or not you saw these cows when you first came around the curve about a half a mile up the road? A. No, sir, I didn't.
"Q. Did you see these cows when you first came up over the dip, which is in testimony? A. I would say to that I don't know. I just saw them. I was on top of that bank there — that little bank there.
"Q. About where this approach was? A. Along in there — maybe below it a little. It might have been below it a little there.
"Q. On down toward this driveway way where the cows came out? A. Yes."
The witness testified that he was about where the exhibits showed the approach to the pasture when he first saw the cows come out of the driveway. He stated he had not seen the cows before that time. He testified he did everything he could do to prevent hitting the cows.
Defendant's testimony was corroborated by his brother. He testified it was after the truck got well on top of the dip when he saw the cattle come out of the drive. He stated he knew he hit the cow about where the driveway came out into the road. He also testified he thought they crossed to the left of the road after the truck had passed the driveway to the pasture but that he really didn't know.
In this opinion we will refer to the respondents as plaintiffs and to the appellant as defendant, being the positions they occupied in the lower court.
Defendant's first assignment of error is as follows: "The burden of proof was upon the plaintiffs to prove the acts of negligence alleged in their petition, and since the evidence failed to show any act of negligence on the part of defendant, he was entitled to a verdict on plaintiffs' claim against him."
The law is well settled that the burden of proving negligence on the part of the defendant as the proximate cause of the injury is upon plaintiffs. Been v. Jolly, Mo.Sup., 247 S.W.2d 840; Stallcup v. Williamson, Mo.Sup., 235 S.W.2d 318; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158.
The second part of this assignment of error goes to the sufficiency of the evidence to support the judgment.
In suits at law, tried before the court, the appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310 RSMo 1949, V.A.M.S.
It is our duty to review de novo the case at bar. We defer to the trial court's findings where the evidence does not convince us that such findings are incorrect. When the evidence does so convince us then we must make our own finding of facts. Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945, 950.
And we specifically hold that the rule of law cited in plaintiffs' brief on page 6, fourth point under points and authorities, is not the law. If the cause had been tried by a jury this court would have been bound by the jury's finding of facts provided there was substantial evidence to support such findings but that is not the rule where the cause is tried before the court.
In determining the sufficiency of the evidence to support the judgment it becomes our duty to view the whole record.
This action was filed in the Magistrate's court. Under section 517.050 RSMo 1949, V.A.M.S., the statute provides:
"* * * No formal pleadings upon the part of either plaintiff or defendant shall be required in magistrate courts, but before any process shall issue in any such suit, the plaintiff shall file with the clerk of the magistrate court the instrument sued on, or a verified copy thereof, or a statement of the account, or of facts constituting the claim upon which the suit is founded, and the defendant shall, before trial is commenced, file * * * or counterclaim relied upon, * * *, and no other statement or pleading shall be required. * * *"
The Magistrate Court, while a court of record, takes the place of the old Justice of the Peace courts and formal pleadings were never required in such actions.
The petition filed in this case by plaintiffs merely stated that the cause of the injury was the negligence and carelessness of the defendant in operating his truck. It does not state in what manner defendant was negligent.
It is a well settled principle of law that defendant owed to plaintiffs a duty to exercise the highest degree of care in the operation of his truck so as not to injure plaintiffs' property. So the question before this court is, does the testimony establish negligence on the part of defendant in any manner? If so, after verdict, we should affirm the case.
An examination of the whole case shows that there were but three eye-witnesses, the plaintiff, the defendant and defendant's brother. A careful examination of plaintiff's testimony shows that the road, or driveway, extending from the lot where he kept his dairy cows, to the highway constituted a very dangerous situation. Plaintiff testified that when he reached the highway, on his return with the black cow, the truck was there. His testimony clearly shows that he depended upon the black marks left by the wheel of the truck to establish the distance where the truck crossed the white line over the center of the road. We think the testimony also shows that plaintiff was in no position to know where the cows were when struck. This is borne out by his statement that the black cow must have crossed the center of the road before being struck and that, he believed, she must have been 40 feet down the road. We cannot find that defendant was negligent from the evidence of plaintiff that, when he reached the road, the truck was there. We cannot guess defendant negligent.
There is no other testimony to establish defendant's negligence except the marking on the road left by the wheel of the truck and the hair and blood from the cows left after being hit and the distance they were carried by the truck. The testimony is undisputed that the road was down grade from the place where it crossed the center of the road up to the point where the truck stopped and that the road, after it passed the driveway to the west, was down a steep incline. We think this evidence clearly shows that the defendant was somewhere near the approach to the pasture field when he discovered the cows. Of course, we take judicial notice that there is some little time elapsed between the time defendant discovered the cattle on the road and the application of the brakes. Therefore, he must have been some few feet east of the point where the black mark, left by the truck on the road, crossed the center thereof. This point was established at 300 feet east of the driveway. The truck must have been some 25 to 35 feet east of that point for it is recognized that it takes about a half a second reaction time before the brakes can be applied.
Now there is not one scintilla of evidence offered by plaintiffs to establish that this heavily loaded truck could have been stopped in a shorter distance than it was stopped.
Plaintiff's evidence that he holloed at the black cow and caused her to suddenly jump down the bank and go into the highway and that he hurried down to the highway, corroborates defendant's testimony that the cows rushed suddenly into the road in front of him in such close proximity that he could not avoid collision with them and the killing of the two cows. In other words, plaintiffs have attempted to show liability in this case by showing that he drove the cows into the road and that defendant's truck killed two of them and travelled a distance of 600 feet from the place it crossed the white line in the center of the road until it stopped; that the truck crossed to the left side of the road onto the shoulder thereof, and carried one cow 100 feet and the other cow some 40 feet. We think this evidence fails to show negligence and plaintiff's statement that when he reached the road the truck was there, does not aid his cause. We find there was insufficient evidence in the case to establish liability against the defendant.
We find against defendant on his fourth assignment of error. This assignment of error is based upon Section 270.010 RSMo 1949, V.A.M.S., being the law relative to the restraining of livestock from running at large. We find the law not applicable for the reason that the cattle were, at the time of the injury, being attended by plaintiff.
Defendant's fifth assignment of error is without merit. We hold the photographs were properly admitted in evidence. They were shown to be a fair representation of the condition of the road at the place of the collision at the time said cows were killed.
The sixth assignment of error on the part of defendant, is based upon the law restraining livestock from running at large on which defendant relies for recovery in his counterclaim. We have held in this opinion that this law is not applicable.
Judgment reversed and remanded with directions to the trial court to enter judgment for the defendant.
VANDEVENTER, P. J., and BLAIR, J., concur.