Ayres v. Keith
| Decision Date | 12 March 1962 |
| Docket Number | No. 2,No. 48684,48684,2 |
| Citation | 355 S.W.2d 914 |
| Parties | Marion V. AYRES, Appellant, v. Virgil Guy KEITH, Respondent |
| Court | Missouri Supreme Court |
William R. Kirby, St. Louis, for appellant.
W. Munro Roberts, Jr., James J. Sauter, Heneghan, Roberts & Cole, St. Louis, for defendant-respondent.
Plaintiff sought damages in the sum of $20,000 for personal injuries sustained when, as a pedestrian, he was struck by defendant's car. The jury returned a verdict for defendant, hence this appeal. Plaintiff, a man sixty-five years of age, was engaged in selling newspapers at the intersection of Grand and Gravois in the City of St. Louis; he had boxes at the southeast and northwest corners. Grand Avenue runs generally north and south; Gravois, with six traffic lanes, crosses it at a somewhat obligue angle, running slightly northeast-southwest. There were traffic lights at all corners. The injury occurred at about 7:45 a. m. on September 15, 1959, when traffic was very heavy. At this hour the city had marked off, as was usual at such times, an additional lane for eastbound (downtown) traffic by putting out yellow rubber markers; in other words, the inside westbound lane was specifically marked for eastbound traffic during the morning rush hour.
A pedestrian crosswalk, ten feet wide, ran north and south across Gravois just east of Grand, the westerly edge being a continuation of the easterly curb line of Grand. This walk was marked by rectangular white blocks set into the paving. At the center of Gravois was a 'midway' or safety zone, sometimes also described as a 'V-Box.' This was formed by five traffic buttons and connecting white lines; two of the buttons, each fourteen inches in diameter, were placed abutting each other in the west edge of the crosswalk; two others were similarly placed in the easterly edge, ten feet east; the portion of the street so set off was a rectangle ten feet by twenty-eight inches. Another traffic button was placed fifty feet to the east in the center of Gravois; from this white lines were painted to connect with the easterly corners of the rectangle. Thus, the lines came more or less to a point at the east. The obvious effect of this 'V' arrangement was to divert traffic away from the rectangular zone.
On this occasion plaintiff had started across Gravois from south to north, and he had reached the center; there the light had turned red against him and he had stopped. Defendant was driving easterly, in the additional lane for downtown traffic, and was thus north of the midway. Plaintiff testified that while he was standing in the rectangle between the four buttons, and facing 'mostly east' watching traffic going west, he was struck by defendant's car; that he fell somewhat east of the crosswalk, and at least partly in the extra traffic lane. Defendant was driving at about 15-20 miles per hour in heavy traffic. He testified: that the light was green for him at this intersection; that he had allready crossed the intersection when he first saw plaintiff, that the back of his car was then 25-30 feet past the intersection, and that plaintiff was standing on the 'double white line' about 20-25 feet ahead, facing south; that plaintiff suddenly turned and started to run north; that he, defendant, swerved and applied his brakes, but that plaintiff ran into his right front fender; that the stopped in about 15-20 feet; that plaintiff was lifted and spun a little by the impact as he struck the car, and that he lay practically on the center lines. There was a slight indentation on the right front fender of defendant's car, 23-24 inches back of the headlight. The only other eyewitness, a Mr. Widmer, was driving east in the regular lane next to and south of the center of Gravois. He testified: that when he was just east of the center of Grand he saw plaintiff standing on the center strip of Gravois and, as he recalled, at the 'extreme eastern edge of the crosswalk,' facing northeast; that suddenly he moved two or three steps north and east into the extra lane, and collided with the side of the right front fender of the car; that he did not see plaintiff look toward the eastbound traffic; that the car stopped in 10-15 feet, and that plaintiff was lying completely within the extra traffic lane; that he, Widmer, stopped because the traffic stopped, but that he did not get out of his car. Widmer later notified police that he had witnessed the accident.
A traffic engineer for the city described the midway and the crosswalk; he testified, over objection, that the pedestrian refuge is 'between those buttons' and also testified at another point, without objection, that pedestrians are to cross in the crosswalk and stay in that area. It is not controverted that the traffic light for defendant was green at the time in question and red for plaintiff. It is also not controverted that there was a dent (or dents) on the right side of defendant's fender, and that no damage to the front of his car was demonstrated. The fibula in plaintiff's right leg, being the smaller of the two bones below the knee, was fractured. It will not be necessary to detail any of the medical evidence.
The first two points of alleged error made by plaintiff involve defendant's Instructions 5, 6 and 7. Only general objections were made when the instructions were given. In plaintiff's motion for new trial nine assignments of error were made on Instruction 5, the same assignments on Instruction 6, and the same assignments, with two omissions, on Instruction 7. We have considered these assignments under our Rule 79.03, V.A.M.R., which provides that in such event 'specific allegations of error' in the instructions must be set out in the motion. This rule has now been in force for nearly two years. The intent is that both the trial court and the appellate court may know specifically what the objections are, and that the appellate court may know that they have been presented to the trial court. See, generally, Sullivan v. Hanley, Mo.App., 347 S.W.2d 710; Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319. Without quoting all the assignments, we note that they assign the following: That the instruction thus attacked is 'not an accurate statement of the law,' that it 'fails to hypothesize sufficient facts to constitute a defense,' that it 'places an absolute duty on the plaintiff,' that it gives the jury 'a roving commission,' that it is 'an abstract statement * * * not properly connected by hypothesis of facts,' and that it is '* * * repetitious, unduly emphasizes and comments upon certain portions of the testimony * * *.' None of those assignments point out with any degree of definiteness what is actually claimed to be wrong with the instruction in such a manner that the trial court and the appellate court may immediately perceive the point; nor do they in anywise assure this court that the sundry points now argued (and which have been particularized substantially) were actually presented to the trial court. They are insufficient under our rule.
We have decided to consider on the merits the contention now presented that defendant's Instructions 5 and 6 were inconsistent and in conflict. In Instruction 5 an ordinance was partially quoted which required that pedestrians should yield the right of way to drivers lawfully proceeding on a green or 'Go' signal at intersections controlled by signals; the jury was then instructed (in essence) that if it found that defendant was proceeding on a green signal in the additional traffic lane and that plaintiff, while walking across Gravois 'at or near the intersection' with Grand, walked from the center line northwardly against the red light into the additional eastbound lane and collided with defendant's car, and that therein he failed to exercise the ordinary degree of care (defining it), then he was negligent. Then followed the customary requirement that his negligence must have directly contributed to the injuries.
Instruction 6 quoted in part another subsection of the ordinance requiring that pedestrians crossing at any other place than a crosswalk 'shall yield the right of way to drivers' and that it shall be unlawful not to do so; thereupon the jury was instructed that if it found that there was a duly marked crosswalk (describing its location), that plaintiff was walking across Gravois at a point 'outside of said marked crosswalk,' that he walked north from the center line into the additional eastbound lane and into collision with the fender of defendant's car, and that in so doing he failed to yield the right of way to eastbound automotive traffic, and failed to exercise ordinary care (defining such), then plaintiff was negligent. (Here followed again the requirement of contribution.)
Plaintiff says that these submissions, based upon different subsections of the ordinance and upon different evidence, were inconsistent and irreconcilable, in that the plaintiff was put in a different location in each; and that defendant was not entitled in any event to the theory of submission stated in No. 5 because it was opposed to his own positive testimony supporting an affirmative defense. This argument is premised, of course, upon the fact that defendant testified that the plaintiff was located at a point approximately 40-50 feet east of the crosswalk in the center of the street, but near the point of the 'V-Box,' whereas his witness Widmer placed the plaintiff at the extreme eastern edge of the crosswalk. Both, however, testified that plaintiff suddenly turned and proceeded into the extra traffic lane; and in neither instruction was plaintiff charged with negligence merely because of his position or location. Plaintiff cites, generally, two lines of authorities: (a) that a party may not submit inconsistent theories of negligence, State ex rel. Tunget v....
To continue reading
Request your trial
-
Bendorf v. Volkswagenwerk Aktiengeselischaft
...were made after the prior inconsistent statement. Felice v. Long Island Railroad Company, 426 F.2d 192 (2d Cir. 1970); Ayres v. Keith, 355 S.W.2d 914 (Mo.1962); McCormick, supra; see Applebaum v. American Export Isbrandtsen Lines, Affirmed. IT IS SO ORDERED. HERNANDEZ, J., concurs. SUTIN, J......
-
State v. Baker
...what the objections are, and that the appellate court may know that they have been presented to the trial court." Ayres v. Keith, 355 S.W.2d 914, 917 (Mo.1962). Appellant's contradictory statements regarding the admission of the seized evidence would seem to lead to the precise uncertaintie......
-
Hastings v. Coppage
...and will not be considered. Sup.Ct. Rule 83.05(a), V.A.M.R.; Marshall v. City of Gladstone, Mo., 380 S.W.2d 312, 314(1); Ayres v. Keith, Mo., 355 S.W.2d 914, 919(6). A point is not properly presented for review if it is advanced for the first time in the argument portion of the brief. Frage......
-
State ex rel. State Highway Commission v. Ellis, 8308
...at the exhibit and refused it as having no probative value. Highway offers no authority to support its claim of error. (See Ayres v. Keith, Mo., 355 S.W.2d 914). As nearly as we can grasp the argument, it is that, since the witness stated that he was familiar with the property in his capaci......