Summary
In Fullington v. Southeastern Motor Truck Lines, Inc., Mo.App., 254 S.W.2d 246, 249, 251, plaintiff was a guest in the automobile of Virgil Denton (also a defendant), and was injured in an intersection collision between Denton's automobile and a truck of the corporate defendant.
Summary of this case from Wilcox v. SwensonOpinion
No. 28670.
January 20, 1953. Rehearing Denied February 13, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WILLIAM S. CONNOR, J.
Keegan Rickhoff and Gregg Wm. Keegan, St. Louis, for plaintiff-appellant.
G. R. Miller, St. Louis, for defendant-appellant.
Wilbur C. Schwartz and Harry M. James, St. Louis (Joseph Nessenfeld, St. Louis, of counsel), for defendant-respondent.
This is an action to recover damages for personal injuries sustained by plaintiff as the result of a collision between a tractor-trailer, operated by defendant Southeastern Motor Truck Lines, Inc., and an automobile operated by defendant Virgil Denton. The plaintiff was a passenger in the Denton automobile as it crossed a highway intersection and came into collision with the tractor-trailer. The trial resulted in a verdict and judgment for the plaintiff and against Virgil Denton and against the plaintiff as to the Southeastern Motor Truck Lines, Inc. Both the plaintiff and defendant Denton appealed to the Supreme Court and the cause is before us by transfer from that court.
The collision occurred in Illinois where Highway 159 is intersected by Highway 156 at the town of Hecker. The tractor-trailer was traveling southwardly on Highway 159 and the automobile was proceeding in an eastward direction on Highway 156. At the point where these two highway intersect there are stop signs on Highway 156 facing the traffic approaching Highway 159 from both the east and the west. Defendant Denton was driving a party of friends from St. Louis to the plaintiff's home, in Hecker, Illinois. Mrs. Fullington, the plaintiff, was seated on the left side of the back seat. Next to her was the five year old son of Mrs. Teer, who was seated on the extreme right. Mr. Fullington, the plaintiff's husband, was in the front seat with Denton.
Denton drove his automobile eastwardly into the intersection and had cleared the center line of Highway 159 when his car was struck in the left rear by the tractor-trailer belonging to the Southeastern Motor Truck Lines, Inc. At the time of the impact the tractor had veered from its proper side of the road to a point slightly east of the center. Skid marks made by the tractor-trailer extended from the point of impact back approximately fifty feet. There seems to be no dispute as to the foregoing state of facts, but as to what Denton did as he approached and entered the intersection there is a considerable variance in the testimony offered.
According to the plaintiff Denton came to a stop by the stop sign and then at the direction of Mr. Fullington he proceeded to cross Highway 159. She did not see the truck and was not aware of its presence until the collision took place. Mrs. Teer testified that Denton stopped and then started across and was on Highway 159 when she saw the tractor-trailer over 100 feet away and sensed no impending danger. The plaintiff also introduced the deposition of a witness who testified that he had been walking in the direction that the Denton car was traveling and that it entered the intersection with Highway 159 without making any stop, traveling at a speed of about 30 or 35 miles per hour.
Denton testified that he looked to the left before entering the intersection but did not see the tractor and proceeded to cross the highway. He said that he was about two-thirds across the first lane when he saw the tractor 25 or 30 feet away, at which time he speeded up, and was east of the center line of the highway when the tractor struck the left rear of his automobile.
An expert witness, testifying on behalf of the plaintiff, stated that a tractor-trailer of the kind here involved and carrying the same weight could be stopped in a distance of 35 or 40 feet from a speed of 20 to 25 miles per hour. This distance mentioned by the witness did not take into consideration the reaction as it related to the time for the driver to react to a dangerous situation and place his foot upon the brake pedal but took into consideration the distance required to stop the tractor after his foot was upon the brake pedal.
The driver of the tractor testified that he first saw the automobile driven by Denton when it was just east of the stop sign on Highway 156 and that at that time the tractor was about 35 feet from the point where the vehicles eventually collided. He stated that he could not have seen Denton at the point near the stop sign at a greater distance because there was a building which stood just ten feet from the curb line of Highway 159 upon which the tractor was traveling. Photographs of the highway were introduced which showed the buildings at the intersection. The witness further stated that Denton's car came into the intersection in front of him at a speed of about 20 to 25 miles per hour. He applied his brakes and turned the tractor to the left, but had no time to sound a warning.
The plaintiff suffered several fractures as a result of the collision, but since no point is raised relating to the extent of her injuries or the amount of the damages awarded, medical testimony need not be considered.
The petition charged that the driver of the tractor-trailer negligently failed to stop, swerve or slacken the speed of the tractor or to give a warning of its approach and thereby avoid the collision. Like charges of negligence were made against Denton. The issues were joined by both defendants generally denying the negligence charged.
As stated, the jury returned a verdict in favor of the Southeastern Motor Truck Lines but found against Denton and both Denton and the plaintiff appealed.
The plaintiff assigned as error the giving of an instruction at the request of the Southeastern Motor Truck Lines, designated as Instruction No. 2, which is as follows:
"With reference to the charge of negligence submitted to you in Instruction No. 1, the Court instructs the jury that the defendant Southeastern Motor Truck Lines and its chauffeur were not required under the law to swerve their tractor-trailer until after they saw that the automobile in which plaintiff was a passenger was in danger of being struck by their tractor-trailer, and then said Southeastern Motor Truck Lines and its chauffeur were required only to use the means and appliances at hand to swerve or stop and thus to avoid striking the automobile in which plaintiff was a passenger.
"You are, therefore, instructed with reference to said charge of negligence that if you find from the evidence that at the time the automobile in which plaintiff was a passenger came into a position of peril in which the chauffeur of the Southeastern Motor Truck Lines saw it was in danger of being struck by the tractor-trailer of defendant Southeastern Motor Truck Lines, if you so find, said automobile in which plaintiff was riding so close to the tractor-trailer that said Southeastern Motor Truck Lines and its chauffeur, in the exercise of reasonable care, with the means and appliances at hand, could not thereafter swerve or stop and thus and thereby have avoided collision with the automobile in which plaintiff was riding, then the defendant Southeastern Motor Truck Lines, is not guilty of said charge of negligence and you will find in favor of defendant Southeastern Motor Truck Lines."
This was intended to be in converse to the verdict-directing instruction given at the request of the plaintiff, and the first objection raised is to that part of the instruction which says: "Southeastern Motor Truck Lines and its chauffeur were not required under the law to swerve their tractor-trailer until after they saw that the automobile * * * was in danger of being struck * * *." It is asserted that this eliminated the element of discoverable peril upon which the jury should have been instructed in that it imposed no duty upon the tractor driver until after he actually saw Denton's car. There was, of course, a duty on the tractor driver to keep a lookout and in the exercise of ordinary care to have seen what should have been seen. In this respect the law of Illinois is the same as that of Missouri. We have stated that "facts which will give rise to a cause of action under the humanitarian doctrine in Missouri will likewise give rise to a cause of action in Illinois, but for primary negligence only," and of course contributory negligence is a bar to recovery. Williams v. East St. Louis Ry. Co., Mo.App., 100 S.W.2d 51, loc. cit. 55; Harting v. East St. Louis R. Co., Mo.App., 81 S.W.2d 973. The humanitarian doctrine or any other theory of negligence where those charged are required to keep a lookout places upon them the obligation to discover a danger when it becomes apparent. The duty of the tractor driver therefore arose not after he had seen but when, under the circumstances, he should have seen the danger to be avoided, and it was error not to so instruct the jury. Colvin v. Mills, 360 Mo. 1181, 232 S.W.2d 961; Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. Under the instruction as drawn a driver who never looked and consequently never saw could be charged with no duty to act.
The respondent states that plaintiff was not prejudiced by the failure to refer to discoverable peril because the evidence shows that defendant's driver discovered the danger of a collision at the moment it arose. The tractor driver's testimony bears out this contention, and the defendant Southeastern Motor Truck Lines, Inc. was certainly entitled to a proper instruction upon its theory of defense, which, we assume, was that its driver saw the impending collision about to happen as soon as it was possible for him to have seen it and that he immediately acted to avoid it. Johnson v. Hurck Delivery Service, 353 Mo. 1207, 187 S.W.2d 300. Instruction No. 2, however, does not do this, but, on the contrary, states that the driver was not required to act until after he saw. Whether or not he could have seen sooner was an issue of fact, for Mrs. Teer testified that when Denton's car was out upon the highway (of which the tractor driver had a clear view) the tractor was over 100 feet away, and the jury was not obliged to believe the testimony of the tractor driver to the contrary. The omission complained of was therefore prejudicial.
Plaintiff appellant also directs our attention to the fact that no mention is made of a failure to warn in instruction No. 2. This is likewise erroneous. The defendant Southeastern Motor Truck Lines seeks to excuse the omission by stating that the reaction time required for the tractor driver to sound the warning plus the reaction time required for Denton to react to the warning would be longer than the time between the collision and the moment it became apparent that it would occur unless preventive action were taken. We are cited to Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, which holds that the court will take judicial notice that three-quarters of a second is the usual reaction time unless a longer time appears evident from the testimony. But the defendant Truck Lines is not aided by this for from the speeds given and from the distance between the car and tractor as testified to by Mrs. Teer it appears that there was about three seconds of time for the action and reaction to have taken place.
Plaintiff also complains that defendant Truck Lines erroneously offered testimony regarding the stop sign located on Highway 156, but she is in no position to complain on this score as her own exhibits plainly show the stop sign and both she and her own witnesses testified about it.
Another point urged by the plaintiff is that the court erroneously admitted in evidence the photograph marked Defendant's Exhibit E. This pictured the interior of Denton's car and showed a number of beer bottles on the floor. No objection was made to the introduction of the exhibit so the plaintiff again is in no position to now complain. But, since the case must be retried, it should be stated that upon retrial of the same issues the photograph should be excluded upon proper objection for it is not relevant to any issue now in the case.
Appellant Denton contends that the trial court erred in not directing a verdict for him on the theory that the evidence was insufficient to prove that he was guilty of any willful and wanton negligence; that is, of course, the degree of negligence required to be proven under the laws of Illinois, for it is provided in Smith-Hurd Statutes of Illinois, Chapter 95 1/2, Section 58a, that a nonpaying guest passenger in an automobile shall not have "a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle". The rule, however, as to what constitutes willful and wanton negligence under the law of Illinois is not as strict in its requirements as the rule in Missouri. The courts of Illinois have held: "A willful or wanton injury must have been intentional, or the act must have been committed under circumstances exhibiting a reckless disregard for the safely of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242, 244, 151 A.L.R. 1; Heidenreich v. Bremner, 260 Ill. 439, 103 N.E. 275; Illinois Central R. Co., v. Leiner, 202 Ill. 624, 67 N.E. 398. We are obliged to follow the Illinois courts upon this question and it certainly appears that there was sufficient evidence of willfulness and wantonness to take the question to the jury. Boehrer v. Thompson, 359 Mo. 465, 222 S.W.2d 97.
Thus a case was made against Denton, but we are confronted with another charge of error relating to a "sole cause" instruction offered by defendant Truck Lines. This instruction placed upon Denton the duty to discover the danger of a collision, which duty he had, but, as pointed out above, instruction No. 2 erroneously placed no duty upon the other defendant. Both defendants had a duty to discover the danger of a collision, but where the instructions in effect relieved one defendant from a duty that both had such instructions were confusing and erroneous. Graham v. St. Louis-Red Bud-Chester Bus Service Co., Mo.App., 147 S.W.2d 205; Harrow v. Kansas City Public Service Co., 361 Mo. 42, 233 S.W.2d 644.
It is therefore the recommendation of the Commissioner that the judgment be reversed and the cause remanded for a new trial.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded for a new trial.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.