Opinion
May 19, 1953. Motion for Rehearing or to Transfer to Supreme Court Denied June 16, 1953.
APPEAL FROM THE CIRCUIT COURT, AUDRAIN COUNTY,
Henry Balken Bush, Linn, James Buffington, Mexico, E. E. Thompson, F.L. Thompson and Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell and Trusty, Kansas City, of counsel, for appellants.
Allen Woolsey and Smith Williams, Springfield, for respondents.
This is a joint action by plaintiffs, Marvin N. Nickels and Sur-Way Lines, Inc., against defendants, Lambert Borgmeyer, John Dill, and H. Grellner, for damages arising out of a highway collision between a tractor-trailer driven by plaintiff Nickels and owned by plaintiff Sur-Way Lines, Inc., and a truck owned and operated by defendant Borgmeyer which was at the time stopped on the highway immediately behind a tractor-trailer owned by defendant Grellner, which latter vehicle was under the control of defendant Dill, an employee of Grellner. Plaintiff Nickels sought to recover damages for personal injuries, and plaintiff Sur-Way Lines, Inc., sued for the damage to its tractor-trailer. Defendants Borgmeyer and Grellner filed counterclaims for damage to their respective vehicles. The trial below resulted in a verdict for plaintiffs on their causes of action, and against defendants Borgmeyer and Grellner on their counterclaims. From this judgment, all three defendants appealed.
The verdict in favor of plaintiff Nickels was for $2,500. For plaintiff Sur-Way Lines, Inc., the verdict was in the sum of $2,650. The prayer of defendant Borgmeyer's counterclaims was for damages in the sum of $3,000. Defendant Grellner, in his counterclaims, sought recovery in the sum of $1,000. In view of the amounts allowed by the verdict, and the sums sought to be recovered by the counterclaims, we were in doubt as to our jurisdiction and transferred the case to the Supreme Court. See Nickels v. Borgmeyer, Mo.App., 246 S.W.2d 382. The Supreme Court thereafter considered the question of jurisdiction and held that, since appellants did not in their after trial motions complain of the judgments against them on their counterclaims, the amounts sought to be recovered in said counterclaims should be disregarded in establishing the amount in dispute for the purpose of ascertaining jurisdiction of the appeal. The court then held that since the amount in dispute, being the total amount allowed to plaintiffs, was less than $7,500, this court had jurisdiction of the appeal and re-transferred the cause to this court. See 256 S.W.2d 560.
The Collision in question occurred about 11:00 p.m. on February 20, 1950, on Highway 66 at a point about forty miles southwest of St. Louis, Missouri. The highway at that point runs in a northeastwardly and southwestwardly direction. It is a three-lane highway, about thirty feet wide, the surface layer being what is known as "black top". The highway turns north-eastwardly a short distance from where Highway 50 joins it and just east of where it crosses a bridge referred to in the evidence as the "Twin Bridges". From the curve, the highway is up-grade northeastwardly to a point beyond the place where the collision occurred. About 1,800 feet north of the curve, on the east side of the highway, is an establishment known as the Twin Bridges Cafe and Filling Station, with two driveways leading into same. There are three floodlights on poles designed to illuminate these driveways — one light located just north of the north driveway, another immediately south of the south driveway, and one located in an island between the two driveways. These floodlights are pointed in the direction of the care and filling station. Almost directly opposite the Twin Bridges Cafe is a tavern with a driveway leading into same. A few feet northeast of the north driveway of the Twin Bridges Cafe, and on the same side of the highway, is a place referred to in the evidence as an "apple stand", with a driveway leading into same. About 500 or 600 feet northeast of the Twin Bridges Cafe, at the crest of the hill, is the Hill Top Cafe, located on the west side of the highway.
Defendant John Dill, on the occasion in question, was operating a tractor-trailer owned by his employer, defendant H. Grellner. The trailer carried a mixed load of live stock. The sides and back of the trailer were the usual slotted stock rack. Riding with Mr. Dill was a Mr. Wilburs. Mr. Dill was on his way to St. Louis from Westphalia. He testified that he had stopped at Mt. Sterling, about forty miles west of where the collision occurred, and had checked his tires and lights and found them all working. He stated that there was a cluster of three red lights in the center of the rear of the trailer, a red light at the four corners of the trailer at the rear, a reflector on each side of the bed of the trailer, and a stop light at the rear of the trailer.
When Dill reached the Twin Bridges Cafe he drove in and stopped there for about ten minutes. He testified that before resuming his journey he again checked all the lights on his tractor-trailer and found them lighted. He then drove onto the highway and had attained a speed of about eight miles per hour when his outfit came to an abrupt halt. Dill then got out of his tractor and walked to the rear of his trailer where he discovered that a truck operated by defendant Borgmeyer had collided with the rear end of his trailer and damaged the break "pots" or vacuum cups located on the rear axle, with the result that the breakes on the trailer had locked. Dill met defendant Borgmeyer there at the rear of the trailer. The latter asked Dill if he had any flares and Dill replied: "Yes, we have got plenty of flares." The flares were in a tool box on the right side of the truck. Both Dill and Borgmeyer went around the front end of the truck to get these flares. Dill testified: "We kind of rushed around there." Dill proceeded to get the flares, and had unfastened the tool box when he heard Borgmeyer shout "look out" and heard the sound of air breakes being applied. He then jumped back from his truck just as the Sur-Way truck, driven by plaintiff Nickels, crashed into the left rear of the Borgmeyer truck. Dill did not see the Sur-Way truck until after it hit the Borgmeyer truck. He stated that in his best judgment about one minute and fifteen seconds elapsed between the time he stopped after the first collision and the occurrence of the second collision.
Plaintiffs offered as an admission against interest the following questions and answers given by Dill in a deposition taken prior to trial:
"Q. And how long after that impact did the impact occur between your unit and the Sur-Way unit? A. It wasn't very long, probably about three or four minutes, I doubt if it was that long.
* * * * * *
"Q. Did you have a flashlight with you at that time? A. Yes, sir.
"Q. Where was the flashlight? A. I had it in my hand. * * *
"Q. Was the flashlight working? A. Yes, sir.
"Q. The batteries in it good? A. Yes, sir.
"Q. How do you know they were good? A. Because I used the light." Dill testified at the trial:
"Q. You didn't flash that flashlight up the road in any direction did you? A. No."
Dill further testified that all the lights were burning on his trailer after the second collision except the center light on top in the rear, which he thought had been broken by some flying object off of the Borgmeyer truck. The top lights on his trailer were higher than the highest portion of the Borgmeyer truck. He stated that the lights on the business establishments were burning that night.
Defendant Borgmeyer on the occasion in question was driving a 1946 Diamond T Truck on which was mounted a stock rack. His load consisted of three cows and two coops of turkeys. He was bound for the National Stock Yards in East St. Louis, Illinois. He testified that on the truck were two headlights, a red clearance light located at the lower corner of the truck bed in front, on the driver's side, two lights in the rear — one on each corner of the truck be — and a tail light located underneath the bed of the truck in the rear. He stated that he had checked the lights that evening at Rose Bud, which was approximately thirty miles from the scene of the accident, and found that they were all burning. Borgmeyer testified that he was the Grellner truck before the accident. He stated: "He was driving up that straight-a-way, just driving along, and I seen it — I thought he was traveling but he was pulling up the grade at a slow rate of speed and I was just driving along about thirty miles an hour and not realizing how close I was on him and how slow he was driving. I just went up on him and when I seen him I hit my brakes and went under him with my front end a little bit. * * * as soon as I went under him his outfit stopped right there * * * we both got out * * * and we met at the back end of his truck and the front end of mine. We just stood there and looked at it just a second, and I said, `We had better get the flares out'. And he had a tool box between his trailer and his tractor so we walked around to the right side of his trailer * * * and he was getting them out — we were going to take one in front and one in back right away and he was getting them out and I was standing back of him and I seen a truck coming around the curve, but I figured he could see us — we was trying to get our flares out as quick as we could — when I seen the other truck didn't slow up I hollered at him to move out and about that time this other truck hit."
Borgmeyer further testified that he and Dill "hurried quite a bit" as they walked around the end of the truck to get the flares; that he did not take time to look at the condition of the lights on the rear end of the Grellner trailer at that time, but that the top lights above the doors on each side of the trailer were burning after the second collision; that he did not look at the rear end of the Grellner trailer after the second collision; that he first saw the Sur-Way truck when it was coming around the curve, which he judged to be around 1,800 feet from where his truck was at the time, at which time he and Dill were on the right side of the Grellner truck getting the flares; that at first he just saw the lights of the Sur-Way truck, and realized it was a truck when he heard the roar of the motor when the Sur-Way truck got on the straight-a-way after rounding the curve; that he shouted the warning to Dill when the Sur-Way truck reached the Twin Bridges Cafe; that the Sur-Way truck remained in the righthand lane until it came within fifteen feet of his truck; that the sound of the motor was "pretty loud", like a motor going at a high rate of speed; that in his estimation the speed of said truck when it reached the Twin Bridges Cafe was between fifty and sixty miles per hour; that it did not slow down until it reached a point where the "motor was cut" fifteen or twenty feet from the point of collision, when it swerved to the left. When asked to describe the collision, Mr. Borgmeyer stated: "Well, it caught the back end of my truck — it seemed like it started practically more or less to the right and side of my rack and it swerved to the left and went across the highway and then it came back facing the northeast and turned over on its left side. * * * I ran back to look at my truck — I seen it was demolished and I seen my cattle strewn on the highway * * * and I ran up to the Sur-Way truck and when I got up there, why Mr. Nickels was out of the cab. * * * there was one cow that was still hanging on my truck * * * she was lying on top of the turkeys — her head was hanging off the truck — it was dead * * * one of them was lying * * about halfway between the trailer body * * * and the third one was up ahead of the Grellner tractor."
Mr. Borgmeyer further testified that about two minutes elapsed between the first collision and the second collision. In a deposition taken prior to the trial, Borgmeyer testified as follows:
"Q. About how much difference in time would you say there was? A. When both accidents happened?
"Q. Between your accident with Mr. Dill and the time the Sur-Way truck was involved in the accident? A. It couldn't have been any more than, well, the time it takes you to walk around a truck, to get out and walk around a truck.
"Q. Just your best judgment. A. Well, I would say from three to five minutes, something like that — two minutes."
"Q. Could it have been more than five minutes? A. No. sir, it couldn't have been any more than five minutes."
Henry Wilburs, who was a passenger in the Grellner truck, stated that there was an interval of about two minutes between the two collisions.
The stock rack on Borgmeyer's truck was dark green and the cab on said truck was painted red. Dill's truck was painted red.
On the occasion in question plaintiff Nickels was operating a 1947 Diamond T Truck with a thirty-two foot trailer attached. The trailer was loaded with calves and hogs. Nickels testified that as he founded the curve just east of the Twin Bridges he observed the lights of two automobiles and a truck approaching from the northeast. All three approaching vehicles were at that time in the outside lane of the highway. The car in front was close to the Twin Bridges Cafe, and the other car and the truck were opposite the Hill Top Cafe. The truck was in the rear, and the two cars were running 100 to 150 feet apart. Thereafter, the truck pulled to the center lane to pass the automobile in front of it and was just about opposite the car when Nickels passed said truck. Nickels testified that the lights of these approaching vehicles did not reveal the presence of defendants' trucks on the highway. All three of the approaching vehicles were running with their lights dimmed. Nickels stated that he also had dimmed the headlights on his truck at the time. As the truck was about to meet and pass Nickels, the operator of said truck turned off the headlights of the truck. It was then, according to Nickels' testimony, that he first saw the defendants' trucks about twenty-five feet in front of him. He stated he than swerved to the left and applied the brakes, and collided with the Borgmeyer truck. The corner of the Borgmeyer truck caught the right side of Nickels' truck at about the corner of the windshield. Nickels then lost control of his truck.
Borgmeyer denied that there was any southwestbound traffic on the highway at the time Nickels approached the point of collision. Borgmeyer testified:
"Q. * * * will you tell the court and jury whether or not there were two cars and the truck westbound there and meeting the Sur-Way truck? A. No, sir."
Dill testified:
"Q. I will ask you, Mr. Dill, if at any time after the first collision occurred, up until the second collision occurred, you saw any traffic going westbound on Highway 66, or south-westbound? A. No."
Henry Wilburs testified that he did not notice any cars going southwest at the time.
Jack Mumford, who was driving a truck and following about one hundred yards behind Nickels, testified that he saw two cars southwestbound just prior to the collision.
Nickels was asked if he had at any time observed any lights on defendants' trucks. He replied:
"They wasn't on. * * *
"Q. This truck you ran into, was that truck moving or stopped? A. Stopped.
"Q. Were there any lights on that truck? A. No. * * * No, they didn't have no lights on."
Nickels testified that the truck he collided with was "just past the floodlights" of the Twin Bridges Cafe. He stated:
"They was floodlights up on a post that shined down in their drive * * they might shine a little bit out on the highway, but not very much.
"Q. Did you observe whether or not any lights, or any light from these floodlights were shining or casting a light on the truck which you struck? A. No, sir."
He also stated that there were lights on the buildings of the Twin Bridges Cafe and Filling Station, and on the tavern across the road from the Twin Bridges Cafe.
Nickels further testified that the night was cloudy, but that the pavement was dry. He stated there was rain after the accident, but none before. He further testified:
"Q. And there was no fog or dust or anything else like that in the air? A. No, sir.
"Q. The atmospheric conditions, that is the conditions out ahead of you were normal — that's right, isn't it? A. That's right."
Borgmeyer testified there was no rain or mist before either collision, and nothing to interfere with one's vision that night, other than the darkness of the night. Dill gave like testimony.
Contrary testimony was given by plaintiffs' witness Mumford who stated a light mist had been falling for several minutes prior to the collision. Since this evidence was contrary to the testimony of plaintiff Nickels, it must be disregarded. Mumford did say, however, that the mist was very light and did not interfere with one's ability to see down the highway.
Nickels testified that the headlights on his truck were on immediately prior to the accident. He stated that with the headlights of his truck dimmed he could not, under normal atmospheric conditions such as existed on the night of the collision, see a person or unlighted object or vehicle on the highway more than fifty feet in front of his truck. He further testified that under the same conditions he could only see twenty-five or thirty feet if another car with headlights were approaching. He stated:
"With your lights turned down on dim they will shine on the ground for 50 feet in front of you, that's if there is no lights coming meeting you. With the reflection of other lights it won't let them focus and your lights will shine from the ground back in the air again — that takes the glare away * * * Your lights shine together and it's hard to see anything dark in betwixt * * * You can see 25 to 30 feet in meeting lights. * * * in meeting other lights the reflection won't flex from the ground back to the air and you couldn't see over 25 or 30 feet on the ground.
"Q. Then this truck you were driving permitted you only to see 50 feet in front of you, is that correct? A. On dim, without meeting any other lights.
"Q. * * * Meeting those lights * * * cut down your vision to 25 or 30 feet, is that correct? A. Yes, sir.
* * * * * *
"Q. So then what you are saying to the court and jury is that by virtue of your lights being in a position for meeting another vehicle, and when your vision wasn't interfered with at all by meeting vehicles, you could not see by the power of your own lights, your headlights, a person or unlighted vehicle on the highway more than 50 feet in front of you? A. Not meeting anything else.
"Q. That's what you are saying? A. Yes, sir."
Nickels further testified:
"Q. Now back to the matter of meeting the automobile, do you say you were 300 feet away, approximately, from the point of collision when you could no longer see further than 25 feet because of meeting these automobiles, approximately? A. I suppose so.
"Q. And from that time on up until the collision occurred, you never were able to see any further ahead than 25 feet? A. Not up in the dark, you couldn't see no further than that.
* * * * * *
"Q. And traveling at 35 miles an hour, how long would it take you to stop with that load you had on, on the highway as it existed there that night and under all of the circumstances and conditions that surrounded the place of the collision? * * * A. * * * It would take 100 or 125 feet or something like that to stop. * * *
"Q. Does that include your reaction time in putting your brakes on? A. That includes that heavy load of stock.
"Q. I see. Does that include the time from the time you would see something and you could get your foot off of the gas and on the brake and get stopped? A. Yes, sir."
Jack Mumford, called as a witness by plaintiffs, testified that he was driving a truck on the highway at the time and was traveling about 100 yards behind Nickels. He stated that as he rounded the curve he saw two cars southbound, and that thereafter the headlights on the car in the center lane were turned off, at which time Nickels swerved his truck. Mumford then stopped his truck on the shoulder immediately behind defendants' trucks and went to the assistance of Nickels. He stated that there were no lights on the trucks, no flares or pots, and no one flagging traffic. He first saw defendants' trucks after Nickels swerved. He was 100 yards behind Nickels when the latter swerved. He stated that he knew something was wrong when he saw Nickels swerve, and that he immediately began to slow down, at which time he saw the Borgmeyer truck ahead of him. The witness further testified that he had observed the headlights on Nickels' truck earlier in the evening and that they were good, and were burning at the time. He stated that he did not look to see if there were any lights on defendants' trucks, because he was not interested in lights at that time, but thought that if there had been lights on the trucks he would have noticed them. He further testified that after he got Nickels out of his truck he did look and observed that there were no lights on the trucks.
Witness Mumford further testified that although the headlights of the southbound cars did not blind him as they approached, they did interfere to the extent that they cut his range of vision to the limits of the headlights on his truck. He did not remember the limits of the headlights on his truck. He stated that the headlights on his truck were lowered so that they would not reflect in the errors on Nickels' trucks that he did not see the defendants' trucks immediately after Nickels swerved, but drove some distance before he knew what had happened; that he did not remember how close he was when he actually saw defendants' trucks, but that it was fairly close and a good deal less than 100 yards.
Ralph E. Butler, a State Highway Patrolman, testified for the defendants. He and his companion, State Trooper Allen Whitmer, were about a mile and a half from the scene of the accident when the accident occurred. He received a radio call at 10:50 p.m. and arrived at the scene of the accident a few minutes thereafter. He testified as to the conditions he found. He stated there were two driveways, separated by an island, leading into the "apple stand" northeast of the Twin Bridges Cafe, and that the bumper of the Grellner truck was almost parallel with the western portion of this semi-circular driveway. The Borgmeyer truck, in Butler's opinion, was standing approximately 100 feet from the north driveway of the Twin Bridges Cafe. Butler measured the distance from the Borgmeyer truck southwest to the curve near the Twin Bridges and found it to be three and one-half tenths of a mile or 1,848 feet. The crest of the hill toward the northeast was about one-tenth of a mile, or a little more, distant from the Borgmeyer truck.
Patrolman Butler stated that it began to sprinkle rain while he was enroute to the scene of the accident and that shortly after he arrived there it started raining hard. He further testified that there were lights on the Hill Top Cafe, the Twin Bridges Cafe and the tavern opposite, but none on the "apple" place; that there is a portion of the highway that is somewhat illuminated at night from the lights on these business places; that he had seen persons walk across the highway at that place and that one could see such persons from the light reflected from the various places of business. He stated that when he arrived at the scene of the accident the lights on the Grellner truck and trailer were burning; that the lights burning were the parking lights on the front of the tractor, the lights over the cab, and the trailer lights located at the top on each side of the trailer. He stated that these lights were about twelve feet above the ground, were higher than the Borgmeyer truck, and could be seen from the rear of the trucks. The witness described the damage to the Borgmeyer truck, which we do not deem necessary to detail since there is no complaint by appellants with reference to the amount of damages allowed. Butler testified that there were no lights on the Borgmeyer truck at the time he observed it, stating that the rear end of the truck was "pretty badly demolished. Ordinarily, on stock trucks, the lighting equipment is on your left rear side, and that was torn off and so badly damaged I couldn't detect whether it had lights on it or not at the time." He stated that there were skid marks on the pavement which began approximately ten feet back of the rear of the Borgmeyer truck and extended into the center lane in a semicircular fashion and led to the dual wheels of the overturned Sur-Way truck. The witnes stated that he stepped off the length of those skid marks and took seventy steps, each step measuring about three feet. He stated that, in his opinion, traveling at thirty-five miles per hour, under the circumstances and conditions which existed the night of the accident, it would require 300 feet, including reaction time, to stop plaintiffs' truck, loaded as it was.
Allen Whitmer, the State Highway Patrolman who accompanied Patrolman Butler to the scene of the accident, testified for defendants. He stated that when he arrived at the scene of the accident there were red lights on the rear of the Grellner tractor, which lights were higher than the Borgmeyer truck. The witness further testified that the lights located at the Twin Bridgtes Cafe and Hill Top Cafe reflected light on portions of the highway and particularly on that portion of the highway one hundred feet northwest of the driveway out of the Twin Bridges Cafe, and that people could be seen at night crossing the highway between the two business houses.
The evidence shows that the shoulder on the right side of the highway at the scene of the accident was eight feet wide and was covered with loose rock. Jack Mumford parked his truck on this shoulder, a few feet to the rear of the Borgmeyer truck, when he arrived at the scene of the accident. Neither defendant Borgmeyer nor defendant Dill attempted to move their respective trucks after the first collision. The services of a wrecker were required to move these trucks from the highway after the second collision.
Defendants offered in evidence Rule No. 55 of General Order No. 33-B of the Public Service Commission of Missouri. Said rule provides that every motor vehicle operated by a common carrier over the highways of Missouri shall have lamps lighted during the period of one-half hours after sunset to one-half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person or vehicle on the highway at a distance of 500 feet ahead. Sub-sections (c), (d), (e), and (f) of said rule are as follows:
"(c) Whenever the road-lighting equipment on a motor vehicle is so arranged that the driver may select at will between two or more distributions of light from head lamps or auxiliary road-lighting lamps or combinations thereof, directed to different elevations, the following requirements shall apply while driving during the times when lights are required:
"(d) When there is no oncoming vehicle within 500 feet, the driver shall use an upper distribution of light; Provided, However, that a lower distribution of light may be used when for, dust, or other atmospheric conditions make it desirable for reasons of safety and when within the confines of municipalities where there is sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead, and when following another vehicle within 500 feet.
"(e) When within 500 feet of an oncoming vehicle, the driver shall use a distribution of light so aimed that the glaring rays therefrom are not directed into the eyes of the oncoming driver.
"(f) At no time while driving during the times when lights are required shall any distribution of light be used which will not reveal a person or vehicle at a distance of at least 500 feet ahead under normal atmospheric conditions; Provided, However, that dimmed headlights may be used in for, dust, or other abnormal atmospheric conditions, when they tend to promote safety."
It was stipulated between the parties that defendant Dill was an employee of defendant Grellner and was at the time of the collision acting within the scope of his employment.
The assignments of negligence submitted by plaintiffs were:
"(b) In that defendants, John Dill and H. Grellner, did carelessly, recklessly and negligently stop, park and allow said tractor-trailer to remain at rest on said public highway, during the hours of darkness, and without lighted signal lamps, reflectors, tail lamps, flares or any other reasonable method of warning, all being in violation of Section 8386, RSMo 1939, as amended [now Section 304.290 RSMo 1949, V. A.M.S.];
"(c) In that defendants, John Dill and H. Grellner, did carelessly, recklessly and negligently stop, park and allow said tractor-trailer to remain motionless on said public highway without placing same was near the righthand side of the highway as practicable, in violation of Section 8385(a), RSMo 1939 [now Section 304.020 RSMo 1949, V.A.M.S.]."
Defendants, by their instructions, submitted the issue of contributory negligence based upon the alleged failure of plaintiffs to comply with the requirements of Rule 55 of the Public Service Commission, hereinbefore set out. Defendants also submitted negligence on the part of plaintiffs in the operation of the Sur-Way truck at a negligent rate of speed under the circumstances, and failure to keep a careful lookout for traffic upon said highway.
Defendants moved for directed verdicts in their favor at the close of all the evidence. As heretofore stated, there was a verdict and judgment for plaintiffs on their causes of action, and against the defendants Grellner and Borgmeyer on their counterclaims. Thereafter, defendants moved for judgment in their favor, in accordance with their motions for a directed verdict, and for a new trial. These motions were overruled, and defendants appealed.
Appellants assign as error the refusal of the trial court to direct verdicts in their favor. In support of this assignment, appellants urge, first, that the evidence failed to show any negligence on their part. We cannot sustain this contention. There was ample evidence introduced by plaintiffs that the defendants permitted their trucks to remain at rest on the highway without lights, in violation of Section 304.450 RSMo 1949, V.A.M.S. This was negligence per se. Taylor v. Silver King Oil Gas Co., Mo.App., 203 S.W.2d 147.
It is next urged by appellants that the trial court should have directed verdicts in their favor for the reasons that the evidence shows the personal injuries suffered by plaintiff Nickels and the damages sustained by plaintiff Sur-Way Lines, Inc., resulted from the negligence of plaintiffs contributing thereto.
Plaintiff Sur-Way Lines, Inc., was a licensed motor freight carrier operating under authority of the Public Service Commission. By Rule 55(f) of General Order No. 33-B promulgated by the Public Service Commission it is provided: " At no time while driving during the times when lights are required shall any distribution of light be used which will not reveal a person or vehicle at a distance of at least 500 feet ahead under normal atmospheric conditions; Provided, However, that dimmed headlights may be used in fog, dust, or other abnormal atmospheric conditions, when they tend to promote safety." (Emphasis ours). Violation of the foregoing rule constitutes negligence per se. Anderson v. Kraft, Mo.App., 129 S.W.2d 85.
It is clear from Nickels' own testimony that he was operating the Sur-Way truck at the time in question with headlights that did not comply with the requirements of said Rule 55. Several times during his examination and cross-examination Nickels stated that with the headlights of his truck adjusted for meeting oncoming vehicles he was unable to see unlighted objects on the highway at a greater distance than fifty feet. After making said admission, Nickels offered no excuse whatever for continuing to drive on the highway with these defective and inadequate headlights. It follows, therefore, that plaintiffs were guilty of negligence as a matter of law, which bars recovery if said negligence contributed to cause the collision. Fredrick v. Gay's Express, Inc., 112 Vt. 349, 24 A.2d 349; Buescher v. Ellenberger, Ohio App., 34 N.E.2d 1013; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456; Millspaugh v. Alert Transfer Storage Co., 145 Wash. 111, 259 P. 22.
After considering the evidence presented by the record in this case, we believe there is such connection between plaintiffs' failure to comply with the requirement of the rule of the Public Service Commission and the accident itself as to render plaintiffs' negligence an active and concurring cause of the collision. The purpose of the above mentioned rule is clear. Recognizing the danger which would inevitably result if motor vehicles with inadequate headlights were permitted to travel at rapid rates of speed during the nighttime over unlighted highways, the Public Service Commission has adopted the rule as a measure of safety and, in effect, has decreed that no vehicles subjected to its jurisdiction shall at any time be operated on the highway unless headlights are used which will reveal a person or vehicle at a distance of at least 500 feet ahead under normal atmospheric conditions.
In the case at bar, plaintiff Nickels testified that on the night of the accident there was no fog or dust, and that the atmospheric conditions were normal. He also stated that the pavement was dry. The highway was straight for 1,800 feet southwest of the defendants' standing trucks, and while Nickels was proceeding along said highway there was nothing to divert his attention from the operation of his truck. He stated that although there were motor vehicles approaching him, he was not blinded by the glare of the headlights of these vehicles. It is also clear from the evidence that had the headlights on the Sur-Way truck been sufficient to have disclosed the presence of defendants' trucks on the highway 500 feet ahead, Nickels would have had ample time to have stopped the truck he was driving, or to have slackened its speed and turned out to avoid striking the Borgmeyer truck.
In view of the facts disclosed by plaintiff Nickels' own evidence, we cannot see how it can be said that he might have failed to observe the defendants' trucks had his truck been equipped with proper headlights; assuming, of course, that he was giving proper attention to his driving. If this assumption is incorrect, then Nickels could not be said to have been operating his truck in a careful and prudent manner.
Plaintiffs, in reply to the charge of contributory negligence, assert that the rule of the Public Service Commission is not applicable for the reason that the atmospheric conditions at the time in question were not normal. This contention is not supported by the evidence. Nickels testified that there was no fog or dust in the air, and that the atmospheric conditions were normal at the time.
It is also urged by plaintiffs that there is no basis for the application of the aforementioned rule for the reason that Nickels did not testify that his lights would not reveal a person or vehicle at a distance of at least 500 feet ahead under normal atmospheric conditions. We have examined the record and find that there is no justification for this contention. Nickels testified that, under normal conditions, with the headlights of his truck adjusted for meeting automobiles, said lights would shine about fifty feet ahead, and that he could not see anything in front for a distance further than fifty feet. He further stated that his vision was reduced to twenty-five or thirty feet upon meeting other vehicles. This testimony was repeated several times. Plaintiffs are bound by this testimony and cannot escape the damaging effect of it on the theory that they are not conclusively bound by mere estimates. Such rule is applied where there is a conflict in the evidence. In the case at bar the testimony of Nickels was not contradicted by the evidence of either plaintiffs or defendants.
Plaintiffs have cited the following cases in support of their contention that the issue of contributory negligence was for the jury. Bedsaul v. Feeback, 341 Mo. 50, 106 S.W.2d 431; Pfeiffer v. Schee, Mo.App., 107 S.W.2d 170; Weaver v. Stephens, Mo.App., 78 S.W.2d 903; Love v. Kansas City, Mo. App., 118 S.W.2d 69; Powell v. Schofield. 223 Mo.App. 1041, 15 S.W.2d 876; and Thompson v. Byers Transportation Co., 362 Mo. 42, 239 S.W.2d 498.
In the foregoing cases the courts were asked to apply the rule of Solomon v. Duncan, 194 Mo.App. 517, 185 S.W. 1141, which holds that one is guilty of negligence in failing to regulate the speed of his motor vehicle so as to be able to stop or avoid any obstruction which appears in the radius of his headlights. In each of the foregoing cases the court refused to apply the rule where the evidence showed that the driver's vision was only momentarily shortened, as where he was blinded by approaching headlights, or the sudden appearance of fog, or by deceptive conditions caused by rain or mist. In such instances, the courts in the above cases have held that the issues of contributory negligence and proximate cause were for the jury.
In the case at bar there was no evidence of probative value to bring the plaintiffs within the exception to the Solomon rule announced by the foregoing cases. Nickels' testimony that it is difficult to see dark objects between two sets of headlights, and for that reason his field of vision was reduced to twenty-five or thirty feet while meeting the southbound cars, is not scientifically true. In such a situation, in the absence of blinding headlights, the presence of intervening objects would be more clearly revealed. We therefore have a case where the driver of a truck, knowing that his headlights would not reveal vehicles or objects ahead at a greater distance than fifty feet, operated his truck at such a rate of speed that it could not be stopped in less than one hundred to one hundred twenty-five feet, or at least twice the radius of his headlights.
It is our conclusion that the evidence, viewed most favorably to plaintiff, established contributory negligence as a matter of law, and therefore the court erred in refusing to direct a verdict for defendants.
The judgment appealed from is reversed and the cause is remanded with directions to the trial court to enter judgment in favor of defendants on plaintiffs' causes of action; and in favor of plaintiffs and against the defendants Lambert Borgmeyer and H. Grellner on said defendants' counterclaims.
RUDDY, J., and DEW, Special Judge, concur.