Opinion
No. 21878.
June 1, 1953.
APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, FRED MAUGHMER, J.
Not to be published in State Reports.
Jack B. Robertson, Reed O. Gentry and Rogers, Field Gentry, Kansas City, for appellant.
D. R. Clevenger, Platte City, Walter A. Raymond, Kansas City, for respondent.
Cockrill sued Buchanan for damages to his person and property received when their automobiles collided. A jury was waived and plaintiff had a judgment for $684.18. Defendant appeals.
The collision occurred on Highway 45, at a point about 2 miles west of Weston, Missouri. Highway 45 is an east-west blacktop road, and the center line is clearly marked. Near the point where the collision occurred, Bluff Road runs into the highway, at a little more than a right angle, from the southwest. It is a dirt road 12 or 15 feet wide, and was overgrown with weeds and brush along the traveled portion.
It is about 35 feet wide at the point where it enters Highway 45.
Defendant urges reversal of the judgment for the sole reason, as he contends, that plaintiff was guilty of contributory negligence in passing, or attempting to pass, defendant's automobile, from the rear, at the intersection of Highway 45 and Bluff Road, in violation of the terms of Section 304.020(5). RSMo 1949, V.A.M.S. The pertinent portion of the statute is as follows:
"An operator or driver of a vehicle overtaking another vehicle going in the same direction and desiring to pass the same shall pass to the left * * * provided * * * no operator or driver shall pass a vehicle from the rear * * * while the vehicle is crossing an intersecting highway."
Plaintiff's testimony was to the effect that he was traveling westward; that he was proceeding down a long hill when he noticed defendant's automobile, about 50 yards in front of him, traveling west; that plaintiff was proceeding at a speed of 40-45 miles per hour; that, when about half way down the hill, he sounded his horn and started to pass; that he knew of the intersection of Highway 45 and Bluff Road and intended to complete the passing operation before reaching said intersection; that when the front of his vehicle reached a point opposite the middle of defendant's automobile, the latter, without any signal, suddenly turned to the left, in front of plaintiff; that plaintiff applied his brakes and turned to the left to avoid a collision; that plaintiff traveled about 250 feet from the time he began the intended passing operation, until the collision occurred; that, during that distance, no part of his automobile had been on the north side of the center line of the highway; that the collision occurred 60 feet east of the east line of Bluff Road; that his car skidded 75 feet after he put on the brakes, but that a part of the skidding took places after the cars collided.
Plaintiff's wife's testimony was to the effect that plaintiff sounded the horn and pulled out to pass defendant's car; that defendant's car, without signal, made a sharp turn to the left, into plaintiff's car; that plaintiff applied the brakes and a collision occurred almost at once; that the collision occurred about 60 feet east of the intersection; that she was present when plaintiff stepped the distance.
Mrs. Conard testified to the effect that she was traveling eastward on Highway 45 and saw the accident; that plaintiff started to pass; that he drove alongside of defendant's car for a short time, when defendant's car "turned real sharp in toward this side road" and the collision occurred, in front of the intersection.
Trooper McClure, of the Highway patrol, arrived at the scene shortly after the accident occurred. He testified to the effect that skid marks, made by plaintiff's car, ended some 20 feet east of the east line of Bluff Road: that the marks were visible for a distance of 75 feet; that defendant's car was entirely south of the center line of the highway, for some distance eastward of the point where the skid marks of plaintiff's car ended; that he thought the impact occurred where the skid marks ended, but that he saw no debris or other evidence of a collision at that point; that defendant stated to witness that he was slowing down to turn left, that he gave no signal of his intention to turn, and that he did not see plaintiff's car until after the collision occurred; that plaintiff stated: "He kept pulling over and didn't signal; I honked my horn and started to pass." The witness stated that he believed, from his inspection of the scene, that the collision occurred at a point immediately east of the east line of Bluff Road.
Defendant stated that he was driving at a speed of about 25 miles per hour as he approached Bluff Road; that he slowed to 8 or 10 miles per hour; that he looked back and saw nothing on the road; that he did not hear any horn signal of a car approaching from the rear; that when about 20 feet east of Bluff Road he began turning; that the mouth of Bluff Road, where it joins Highway 45, is 35 feet wide; that he gave no signal; that plaintiff's automobile left skid marks of the length of 60 or 70 feet.
Since the case was tried without a jury we shall review it upon both the law and the evidence as in a suit of an equitable nature. We may not set aside the judgment unless it is clearly erroneous, and we must give due regard to the opportunity of the trial court of judge the credibility of witnesses. Section 510.310 RSMo 1949, V.A.M.S.
Defendant requested the judge to make certain specific findings of fact. In response to said request the court found that the collision occurred while plaintiff was in the act of passing and attempting to pass the automobile of defendant, who was attempting to make a left turn on Highway 45, onto the Bluff Road. He also found as follows:
"3. The defendant requests that I find the collision and impact occurred at the intersection of Missouri State Highway No. 45 with the Old Bluff Road. I refuse this requested finding of fact, but find that the first collision and impact occurred approximately 30 feet east of the east line of the right of way of the Old Bluff Road where it entered upon Highway 45."
In view of the entire record of evidence in this case, the court found, in effect, that plaintiff was not violating, or attempting to violate, the provisions of Section 304.020, supra, when the collision occurred. The court ruled that plaintiff was not guilty of negligence as a matter of law and found, from the evidence, that he was not guilty of any negligence in attempting to pass defendant's automobile.
The statute has been, several times, construed and applied by our courts. In Purdy v. Moore, Mo.App., 224 S.W.2d 838, 841, it was held that the word "pass", as used in the statute, means "to include from the time the vehicle desiring to pass turns to the left into the left traffic lane and then travels up to and beyond the vehicle to be passed, and continues on until the passing vehicle can return back to the right traffic lane." This definition seems to be sound.
The court held, under the evidence in that case, that a collision which occurred 20 feet cast of the intersection, occurred while crossing an intersection within the meaning of the statute. Other decisions wherein the statute has been considered are Brown v. Raffety, 234 Mo.App. 620, 136 S.W.2d 717; Hamilton v. Patton Creamery Company, 359 Mo. 526, 222 S.W.2d 713.
In the last mentioned case plaintiff sued for injuries received when his motorcycle was struck by defendant's truck a short distance south of an intersection, when the truck turned without running beyond the center thereof, and without a signal having been given. Plaintiff had testified in a deposition that, when the collision occurred, he was attempting to pass defendant's truck at the intersection, but he denied his intention to pass the truck in his testimony at the trial. The court held that it was for the jury to decide whether or not plaintiff was, at the time the collision occurred, attempting to pass at an intersection.
In the case at bar, plaintiff testified to the effect that he began the passing operation 250 feet east of the point of collision and that the collision occurred 60 feet east of the east line of Bluff Road. Trooper McClure testified to the effect that plaintiff's automobile left black marks, caused by braking, from a point about 100 feet east of the east line of Bluff Road. Plaintiff stated that he knew of the Bluff Road-Highway 45 junction when he began the passing operation and expected to complete it before reaching the intersection. The trial judge was in a better position to judge the credibility of the witnesses and the weight to be given their testimony than are we. Under all of the evidence he was justified in refusing to find plaintiff guilty of contributory negligence in attempting to pass at an intersection.
The judgment is not clearly erroneous and it should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.