Opinion
No. 21358.
June 3, 1950.
APPEAL FROM THE CIRCUIT COURT, VERNON COUNTY, O. O. BROWN, J.
A. E. Elliott, Nevada, Brandon, Frazier Brandom, Kansas City, Smith F. Brandom, Kansas City, for appellant.
Amos Wight, Lynn M. Ewing, Ewing, Ewing Ewing, all of Nevada, for respondent.
Plaintiff sued to recover for personal injuries incurred in a collision between her husband's parked truck and defendant's automobile. The case was submitted on the humanitarian doctrine. The verdict and judgment were in favor of the defendant. Plaintiff's motion for a new trial was overruled and she has appealed.
Plaintiff alleged that on August 10, 1948, about 8:30 p.m., she was a passenger in her husband's truck, which he parked on Highway B, in Vernon County, as nearly on the right-hand side thereof as practicable, facing east on said highway, and that the lights of said truck were burning in both front and rear, and plainly visible under normal atmospheric conditions for at least 500 feet. She alleged that defendant ran his automobile into and against the rear of said truck. She charged the defendant, among other things, with failure to slacken the speed of his automobile or to avoid the collision in the exercise of the highest degree of care, after he saw, or could have seen, the truck in a position of imminent peril of being struck, and the plaintiff in position of imminent peril of injury.
Defendant denied the allegations of negligence and pleaded joint enterprise, and contributory negligence in careless parking of the truck; pleaded absence of lights on the truck and failure to display any taillight as required by Section 8386, R.S.Mo. 1939, Mo.R.S.A.; failure to give any signal or notice of the dangerous situation of the truck; inability on defendant's part, under the conditions stated, to avoid the collision by slackening the speed or swerving the truck after the truck was or could be seen in its position of danger, and pleaded that plaintiff was negligent in remaining in the bed of said truck under such conditions.
According to the plaintiff's evidence, her husband Virgil Turner, with plaintiff as a passenger, stopped his truck on Highway B in Vernon County, facing eastward between 8:00 and 8:30 in the evening. The purpose was to obtain water from a well in a school yard adjacent to the road. There was a shortage of water at the plaintiff's home. Her husband was carrying the water in buckets to the truck, where plaintiff poured the water into large containers in the truck. It was practically dark, and the passing cars had their lights burning. The highway runs east and west, is of gravel, and there was considerable dust blowing at the time. The traveled portion of the highway was about 24 feet wide and beyond that on the south side was a slope or ditch about 18 inches wide, beyond which was a bank contiguous to the school yard. Virgil Turner testified that he parked the truck with its right wheels against the edge of the bank on the south side of the highway. The bed of the truck was 6 feet, 7 inches wide. Part of the truck was standing on the graveled portion of the road. Plaintiff had taken a standing position in the back or bed of the truck and was receiving the buckets of water as they were carried to her and emptying them into the containers. The lights of the truck were on in front and rear. Turner had just wiped the mud off the right rear light. A car from the east, with its headlights shining, passed the Turner truck, and when it had traveled about 150 yards further, it passed defendant's car coming from the west, with only a left headlight burning. Plaintiff, seeing the situation and fearing the two cars might meet beside the truck, reached for the sideboard of the truck, but before she could reach it, defendant's car ran into the rear of the truck and she was thrown clear of it and to the ground, and lost consciousness.
At the time of the accident it was light enough for plaintiff to see her husband at the school house well and other objects in the near vicinity. It was not light enough for a person to read a newspaper. There was a driveway leading into the school yard, but another truck had entered there and was standing near the well. Defendant's car swerved a little as it approached the truck, but contacted the left rear side of the body of the truck. After the collision the truck was about 41 feet east of where it had been parked and with its front right wheel against a culvert and in a ditch on the right-hand side of the road. Defendant's car was against and partly under the left rear part of the truck.
According to defendant's evidence he had been traveling about 45 miles an hour and had just passed several cars; that as he approached the last car coming from the east he slowed up to about 40 miles an hour, and then to 35 miles an hour until he hit the truck. Defendant said both of his headlights were burning and that his attention was fixed on the headlights of the approaching car from the east; that he might have seen the truck if he had not been watching the approaching car, but that after passing the car he was only 60 to 65 feet from the truck and, being blinded by the lights of the approaching car, he did not see the truck in time to avoid striking it. The rear of the truck was of native wood, dusty and muddy, and appeared as part of the roadway. Defendant's witnesses said that they saw no taillights on the truck, but a clearance light and the license plate were found on the ground the next day.
The plaintiff complains only of the defendant's Instruction 6. That instruction properly told the jury that the law requires all motor vehicles parked on a public highway or shoulder adjacent thereto at any time from a half hour after sunset to a half hour before sunrise to have "a red light" mounted and burning on the rear thereof, visible to the rear for a distance of 500 feet under normal atmospheric conditions, and that such vehicles be parked on a public highway as close to the right-hand side thereof as practicable. Section 8386, R.S.Mo. 1939, Mo.R.S.A. The instruction further told the jury that if they found the Turner truck was parked so that its rear end extended onto the traveled portion of the highway and not as close to the right-hand side as practicable; that it was dark and more than a half hour after sunset, and that the truck did not have red "lights" burning on the rear end thereof, visible to the rear for a distance of 500 feet, and that the plaintiff was standing in the rear end of that truck when an automobile driven by the defendant collided with it, and if the jury found the action of Virgil Turner in parking his truck in the manner described and in failing to have red "lights" burning on the rear thereof were the sole causes of the collision, and that plaintiff's injuries were not due to the negligence of defendant in any of the particulars set out in other instructions, then the verdict should be for the defendant.
Plaintiff's first objection to defendant's Instruction 6 is that it erroneously required the plaintiff's truck to have more than one red light on the rear end thereof. It will be noted that at the outset of the instruction the court told the jury what the law required as to a rear light on a parked vehicle, to-wit: "A red light mounted and burning on the rear thereof". It will be further recalled that the witnesses for the defendant testified that they saw no tail-lights whatsoever on the plaintiff's truck. Plaintiff's evidence was that there were two red lights on the rear of the truck. Thus the issue was not whether or not there was one or two red lights on the rear of the truck, but whether or not there was any red light at all as required by law. In the absence of the request by the plaintiff for an instruction to amplify the defendant's Instruction 6 in the respect complained of, we deem the use of the plural "red lights" at the end of Instruction 6 as harmless error.
Plaintiff's next complaint as to Instruction 6 is that it, being a sole cause instruction, should not have been given because the testimony established that defendant was not free from negligence himself. She insists that the evidence establishes that the defendant's negligence at least contributed to cause the casualty.
Although the evidence on the part of the plaintiff and defendant is conflicting, we believe that there was substantial evidence to support a sole cause instruction, submitting defendant's theory that the parking of the plaintiff's truck under all the circumstances shown in defendant's evidence, was the sole cause of the collision. No negligence was shown on the part of the defendant up to the time of the passing of the westbound car some 65 to 70 feet west of the place where plaintiff's truck was parked, and there was substantial evidence that thereafter the defendant's attention was directed and reasonably so, to the headlights of the approaching car which, as it approached further tended to blind the defendant and to impair his vision so that he was unable to see the rear of plaintiff's truck of inconspicuous form and color. There was further testimony indicating there was no red light on the rear of the truck, and that after the defendant did see the truck he was unable thereafter, in the exercise of a proper degree of care, to have avoided hitting the plaintiff's truck. We believe that under the evidence, the sole cause issue was properly a matter for the jury.
Plaintiff's final criticism of Instruction 6 is that it "interposes what at most was contributory or concurring negligence as a defense in a humanitarian case and does not constitute a sole cause factual situation". We believe what we have said on the last preceding point disposes of this final point. The judgment is affirmed.
BROADDUS, J., concurs.
CAVE, J., not participating.