371 S.W.2d 232 | Mo. | 1963
Lawrence E. Robb instituted this action against Vonda Lou Wallace and Cecil Wright to recover $20,000 damages for personal injuries and $1,500 for injury to his automobile. Both defendants responded to the suit with answers in which they pleaded
Briefly, these are the circumstances with which this appeal is concerned: About 5 :45 on November 15, 1958, the plaintiff Robb was driving his 1955 Ford automobile east on U. S. Highway 166 near the Chesapeake community in Lawrence County. Robb testified that it was dark at the time, Mrs. Wallace said that it was light enough that her husband had just finished reading a newspaper. A World Almanac stated that on November 15 the sun set at “5:02 or earlier.” In any event, Robb was traveling east on his way to his home in Marshfield at a speed of 50 to 60 miles an hour, and unknown to him Mrs. Wallace was also driving east ahead of him on the highway in a 1949 two-door Pontiac sedan intending to turn left across the highway onto a gravel road north into Chesapeake. Her automobile was not equipped with mechanical “turn lights” and of necessity if she gave traffic signals it had to be by extended hand and arm. The gravel road into Chesapeake is immediately west of a bridge and for the distance of about 500 feet west Highway 166 is straight. Robb says that “as I rounded this curve coming into the bridge, just over as I straightened out from the curve there was a car (Wright’s traveling west) came off over the little rise east of the bridge, and I dimmed my lights, blinked my lights twice and these lights were coming on and blinding me some way; and as I got on up closer when he passed, all I could see was the reflections of this Wallace car taillights.” As to the lights from Wright’s westbound automobile Robb said, “They blinded me so as I didn’t see this car in front of me until he got past me.” At another point he testified that after he was blinded by the lights of Wright’s automobile he reduced his speed to 35 or 40 miles an hour, and in describing what he could and could not see said, “I couldn’t see anything beyond. I could still see my right lane, roadway, that I couldn’t see anything till this oncoming car’s bright lights passed.” As to his being blinded by the oncoming lights for the distance of 500 feet west of the bridge he said “It is approximately just a guess, I would judge I was back about that far.” He said that he was not completely blinded, “not to the extent but what I could see the right side of my road, I mean stay in my line until the car went around me.” At another point in his examination he testified that after he was blinded by the lights of Wright’s automobile he reduced his speed to 35 or 40 miles an hour, and in describing what he could and could not see said, “I couldn’t see anything beyond. I could still see my right lane, roadway, that I couldn’t see anything till this oncoming car’s bright lights passed.” Robb said that he was about 100 feet west of the bridge when Wright passed with his blinding lights and for the first time, about 80 feet ahead on the highway, he saw Mrs. Wallace’s 1949 Pontiac.
When he first saw the Pontiac he “didn’t know whether it was stalled or whether it was moving very slowly,” not over 5 miles an hour, and he testified that there were no lighted taillights on the Pontiac. He said that he was close enough to Mrs. Wallace’s
Nor is it deemed necessary other than this mere recitation of the facts to further demonstrate that in these circumstances a jury could reasonably find both Wright and Mrs. Wallace guilty of one or more acts of primary negligence. As to the, respondent Wright it is sufficient to say. that one of the elemental hazards of night-; time driving is “the blinding effect produced by the headlights of approaching vehicles.” 22 A.L.R.2d 427, 429, annotating Judge Vandeventer’s opinion in Lemonds v. Holmes, (Mo.App.) 236 S.W.2d 56, 22 A.L.R.2d 418. It is pointed out in that annotation that there is a primary duty to dim or deflect dazzling headlights (7 Am.Jur.2d, Automobiles, Sec. 226, p. 776) and that upon conflicting evidence as to whether headlights have in fact been dimmed “whether such failure is a proximate cause of the collision has generally been held to present a question for the trier of fact.” 22 A.L.R.2d l. c. 430, and see Browne v. Creek, 357 Mo. 576, 582-583, 209 S.W.2d 900, 904. Likewise as to the evidence and the record with respect to the conduct of Mrs. Wallace, “Certainly the defendant had violated the rules of the road and was negligent in operating the pickup without lights and turning it to the left and across the highway without signalling. * * * Whether, if plaintiff’s driver had sounded his horn, the warning would have been heard by the defendant; and whether the pickup was then in a position on the highway that the defendant could change the course thereof in time to avoid the collision, are such facts, in our opinion, as to require the submission of the issue of proximate cause to the jury.” Hill v. Torrey, (Mo.App.) 320 S.W.2d 594, 597, a case cited by the respondent Wright. See also in this connection 21 A.L.R.2d 7, 44; Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713; Highfill v. Brown, (Mo.) 320 S.W.2d 493, and Nickels v. Borgmeyer, (Mo.App.) 258 S.W.2d 267, 276.
Both respondents contend, however, that Robb was guilty of contributory negligence as a matter of law and that therefore the court properly directed verdicts against him. It is difficult to understand just how the respondent Wright is personally concerned with some of these claims but he urges that Robb was guilty of contributory
Bearing on one or more of these questions and contrary to the respondents’ claim, is the fact that in these circumstances, from Robb’s viewpoint, a jury could reasonably find that he was suddenly confronted with an emergency situation, one not caused or contributed to by his negligent conduct. Of course sudden emergency is not a defense and does not exculpate, but it is a factor to be considered in passing on Robb’s conduct and whether in the immediate circumstances he was guilty of contributory negligence. Rohde v. St. Louis Public Service Co., (Mo.) 249 S.W.2d 417, 420. Particularly in these circumstances, whether he could have effectively sounded his horn was a matter for the jury’s determination. Myers v. Karchmer, (Mo.) 313 S.W.2d 697. As the court said of failure to sound the horn in Hill v. Torrey, 320 S.W.2d l. c. 596, “But these cases and many others hold that the mere violation of a traffic statute does not, in itself, require a finding of negligence as a matter of law.”
It was not a conclusively established fact that Robb traveled 368.5 feet “blinded” (for a definition see Powell v. Schofield, 223 Mo.App. 1041, 1047, 15 S.W.2d 876, 878), all the speeds and distances were estimates, a “guess” Robb once said, and “A party is not conclusively bound by his estimates of time, speed or distance.” Highfill v. Brown, (Mo.) 340 S.W.2d 656 l. c. 663. In any event there is a summary of the subject of driving blinded, together with a list of Missouri cases, in 22 A.L.R.2d l. c. 310: “Finding the rule requiring a driver blinded by lights to stop or proceed at his peril impracticable under modern traffic conditions, a number of courts have repudiated or refused to adopt it, applying instead the more flexible standard of ordinary care under the circumstances, (the highest degree of care in Missouri) and holding that a motorist who continues on his course when his vision is interfered with by other lights cannot be held guilty of negligence as a matter of law.” One of the cases cited by a respondent, Trantham v. Gillioz, (Mo.App.) 348 S.W.2d 737, rather plainly pointed out that this jurisdiction has not wholly accepted the stopping “within the assured clear distance” rule. On the contrary, “one is not necessarily contribu-torily negligent as a' matter of law solely because he drives at a speed which prevents his stopping within the distance his headlights reveal objects ahead of him; and that whether he is contributorily negligent as a matter of law depends upon all the circumstances in a particular case.” Johnson v. Lee Way Motor Freight, (Mo.) 261 S.W.2d 95, 98. In short, here as in the Johnson case, whether Robb was guilty of contributory negligence in proceeding in the face of dazzling lights was for the jury. Certainly in these circumstances his contributory negligence should not have been declared as a matter of law. Snyder v. Murray, 223 Mo.App. 671, 676, 17 S.W.2d 639, 642; Powell v. Schofield, supra; 8 Am.Jur.2d, Automobiles, Secs. 724-725, pp. 276-279.
The remaining claim is that Robb was contributorily negligent as a matter of law because in violation of the statute, Sec. 304.016, he was attempting to pass Mrs. Wallace within 100 feet of the intersecting gravel road. In large measure the
As indicated, construing the evidence favorably to the plaintiff Robb, there was a submissible case on one or more grounds of primary negligence against both defendants Wallace and Wright and upon the reasons urged here he was not guilty of contributory negligence as a matter of law. Accordingly the judgments against Robb on his causes of action against both respondents are reversed and the judgment in favor of Mrs. Wallace on her counterclaim is reversed and the cause is remanded.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All of the Judges concur.