OVERMAN v. FRANKLIN COUNTY OIL CO

WESTHUES, Commissioner.

On August 13, 1947, plaintiff and her husband, Silas Overman, were riding in a car driven by their son, Braden Overman, in a northeasterly direction on Highway 10 in Ray County, Missouri. When they reached a point about one and one-half miles east of Excelsior Springs, they met a tractor-trailer owned by the defendant Oil Company and being driven by one Leonard C. Wilson. The two vehicles collided and plaintiff and her husband sustained injuries. Plaintiff survived while her husband died six days later. Plaintiff in this action seeks damages for her injuries and also damages for the death of her husband. A jury returned a verdict in plaintiff's favor, assessing her damages for her personal injuries at $9,800, and for the death of her husband, $11,500. Failing to obtain a new trial, the defendant Oil Company appealed.

The defendant Oil Company in its brief contends that plaintiff failed to prove any actionable negligence and, therefore, the trial court erred in not directing a verdict for the defendant. Defendant complains of two instructions given at plaintiff's request and also says the verdict is excessive.

We shall dispose of the points in the order named. The collision in question occurred at 5:15 P.M., on a sharp curve in Highway 10, about one and one-half miles east of Excelsior Springs, Missouri. This highway runs generally in an east and west direction; at the point of collision it ran more north and south. The occupants of the Overman car, who were on their way home, were traveling in a northeasterly direction. Wilson, on his way from Kirksville, Missouri, to Kansas City, Kansas, was driving a tractor drawing a large trailer which was an empty oil tank. He was traveling in a southwesterly direction. The "sharp curve" was to the south and, therefore, the tractor-trailer was on the inside of the curve and the car on the outside. The road sloped toward the west; thus, Wilson was going downhill. The road was concrete pavement, 19 feet wide, with an additional two-foot strip of black top to the north of the slab. Thus, the total width of the roadway was approximately 21 feet, with 11 1/2 feet north of the black line (in the center of the pavement) and 9 1/2 feet to the south.

Wilson's testimony was that the Overman car was at all times that he saw it south of the black line on the road and that it passed the tractor section of the transport in safety; that he drove his tractor to the north of the black line. In a signed statement concerning the collision Wilson stated: "I don't know how the wreck happened. The tractor passed Overman all right. I don't know what happened to make the trailer swing into the Overman car. I didn't see it. When the trailer hit Overman's car, it broke loose from the tractor, but not before."

Braden Overman testified that his car was being driven about three feet south of the black line and passed the tractor but that the trailer swung south just in time to strike his car. He further testified that the tractor-trailer was going about 50 miles per hour when it entered the curve and when the collision occurred it was traveling about 55 or 60 miles per hour. Braden stated he was driving his car about 20 or 25 miles per hour. A number of others who witnessed the collision testified the tractor-trailer was traveling at a speed of 50 to 60 miles per hour and that the speed was increased while going around the curve. One witness testified he was driving a car ahead of the Overman car; that the trailer section of the defendant's transport was so far to the south of the black line that in order to avoid a collision he was forced to drive off the pavement and onto the shoulder of the road.

Wilson stated he was driving at about 40 miles per hour and may have increased the speed 5 miles as he was driving in the curve. There was evidence not disputed that the roadway was rough. One witness who was a truck driver testified that he had been driving a tractor-trailer through many states, New York, Indiana, Illinois, Ohio, and others, and that the roadway between Excelsior Springs and Richmond was, "Well, to my estimation, that is one of the most dangerous roads that I have between here and New York City. It is curved, sharp curves, rough road."

A number of experienced tractor-trailer drivers testified that if such equipment is driven around an inside curve on a rough pavement at high speed there is a likelihood the trailer will begin to bounce and swing to the left.

The above facts are sufficient to sustain the ruling of the trial court refusing to direct a verdict for the defendant.

Appellant in its brief states, "The court will remember that it was the driver's testimony that all he could say was, that the front of the vehicles passed safely and what happened later was without his knowledge. The writer feels that it can be safely concluded that even if the driver of the transport had known that the rear end bounced over, that in the time he had to act, it would have been impossible for him to do anything." Certainly it was too late for the driver of the tractor-trailer to avoid a collision after the trailer bounced and swung to the south of the roadway. However, it was not necessary for Wilson to drive his transport at a high and excessive rate of speed over a rough road, downhill and on the inside of a curve so as to swing or bounce the trailer over the black line to the south portion of the roadway. Appellant cites Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839, loc. cit 845 (7, 8), where the court said: "The fact that the truck driver suddenly swerved, and that the deceased collided with some part of defendant's truck, while the truck was north of the center line of the highway, does not justify a conclusion that the truck driver was negligent under all the facts and circumstances."

In the case before us the evidence was that the collision occurred on the south side of the highway which was the left side for defendant's tractor-trailer. The verdict was amply supported by the evidence.

Appellant says plaintiff's instruction No. 1 was at variance with the pleading and the proof and submitted only general negligence when specific negligence was alleged in the petition and proved. We agree with appellant that specific negligence was alleged and proved. We do not agree that the instruction submitted only general negligence. This can be best answered by a quotation from the instruction. Note a portion thereof: "* * * the defendant, acting by and through its agent and servant, negligently and carelessly, ran, drove and operated a certain motor tractor and trailer from the northward and in a southerly direction, over and along said highway, at said time and place and where said highway was on a curve and down grade, and that, as it did so, defendant negligently and carelessly failed in rounding said curve to reduce the speed of said tractor and trailer and to keep the same as far to the right on said highway as was reasonably possible, or negligently failed, while driving around said curve, to keep said tractor and trailer as far to the right on said highway as was reasonably possible, and that as a direct and proximate result thereof, or of either thereof, said trailer was caused and suffered to and did drive and run to the left and over and across the black or middle line of said highway and to strike against and collide with the automobile in which plaintiff and her said husband were so riding, * * *."

Subsections (3) and (4) of Section 304.020, R.S. 1949, read as follows:

"(3) An operator or driver meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference;

"(4) An operator or driver in rounding curves shall reduce speed and shall keep his vehicle as far to the right on the highway as reasonably possible;"

The driver of the tractor-trailer admitted that he increased the speed of his vehicle in rounding the curve. Plaintiff introduced substantial evidence that the trailer was running to the south of the black line on the highway. We hold that the instruction was not at variance with the pleading and the proof. It is evident that the instruction submitted specific negligence. Appellant says the instruction failed to have the jury find the position of the tractor and trailer before the collision and that the submission of negligence was for a violation of a statute not applicable to the manner of the occurrence. It was charged in the petition, and it was proven, that the speed of the tractor-trailer was not reduced but increased in rounding the curve in question and that the tractor-trailer struck plaintiff's car on the south half of the highway. These questions were submitted to a jury. If true, there was a violation of Subsections (3) and (4) of Section 304.020, supra.

Appellant says further that the instruction conflicted with instruction No. 8 given at appellant's request. Instruction 8 told the jury that if the tractor-trailer were "to the right of the center of the pavement" at the time of the collision, then the jury should find for the defendant. We cannot see wherein the instructions conflict. It will be noted that plaintiff's instruction informed the jury that if through a violation of the statutory requirements the trailer "was caused and suffered to and did drive and run to the left and over and across the black or middle line of said highway and to strike against and collide with the automobile in which plaintiff and her said husband were so riding, * * *." We find that the instruction correctly submitted the disputed facts to the jury.

Appellant also complains of instruction No. 4 which informed the jury that any person operating a motor vehicle upon the public highway was required to exercise the highest degree of care and absence of such care constituted negligence. Appellant as authority cites Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6, loc.cit. 8, 9(2) (3), where an instruction submitted the case to a jury under the humanitarian doctrine and authorized a verdict for plaintiff. It is evident the case has no application to the present situation. Instruction 4 correctly declared the law. State ex rel. Dowell v. Allen, Mo.Sup., 250 S.W. 580, loc. cit. 583-585(3) (4, 5).

The final contention of appellant is that the verdict is excessive. Plaintiff was fifty-seven years old at the time she sustained the injuries and her husband sixty-six. They lived on a farm consisting of forty acres. The husband was healthy and strong. He attended to all the farm work and rented some ground in addition to taking care of his own. The evidence was that he earned $1,500 to $2,000 annually. He was the sole support of plaintiff and their minor daughter. The $1,500 to $2,000 does not include many items such as vegetables, meat, butter, and eggs which are supplied for the table. We are not authorized to disturb the verdict of $11,500 which a jury awarded plaintiff for the death of her husband. A jury awarded plaintiff $9,800 for her personal injuries. Plaintiff before her injuries was in good health. She performed such tasks as were necessary in canning vegetables and fruit and taking care of chickens and other work about a farmhouse. Plaintiff sustained a comminuted, compound fracture of the head of the humerus. Due to the fracture plaintiff has been permanently injured and her right arm has lost eighty percent of its usefulness. Plaintiff also sustained an injury to her head, a deep cut on her left arm, and an injury to her right knee. Plaintiff suffered and will continue to suffer pain. Doctor and hospital bills were large. Plaintiff's ability to perform her usual household duties has practically been destroyed. We do not deem the amount of the verdict excessive.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.