Braun v. Hoffmeister
| Decision Date | 08 April 1963 |
| Docket Number | No. 49279,No. 1,49279,1 |
| Parties | Rosella BRAUN, Appellant. v. Carl HOFFMEISTER, Respondent |
| Court | Missouri Supreme Court |
Jack H. Ross, Coleman, Ross & Cekovsky, Clayton, William L. Mason, Jr., St. Louis, for appellant.
F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
Plaintiff sought damages in the sum of $25,000 for personal injuries sustained when an automobile in which she was a guest collided with an automobile drived by defendant at the intersection of Sulphur Avenue, a north-south street, and Potomac Street, an east-west street, in the City of St. Louis. Trial of the case to a jury resulted in a verdict for defendant. She appealed from the ensuing judgment, assigning error in Instruction No. 3 given in behalf of defendant.
The collision occurred in a residential section of the city about 10 a. m., on January, 7, 1961, a clear, dry day. Plaintiff was riding in the front seat of the automobile owned and operated northward on Sulphur Avenue by William Henry Brown. The automobile with which Mr. Brown's car collided was owned and operated eastward on Potomac Street by defendant. Both streets are 36 feet wide, paved and practically level at the intersection and on each side thereof. No traffic controls are posted at the intersection.
Plaintiff's testimony was that she did not see or sense the impending collision until it occurred.
According to Mr. Brown, aged 76 at trial time, he was driving 15 to 20 miles an hour as he drove northward on Sulphur to the intersection. When his car was 15 or 20 feet south of the intersection, he first saw defendant's car, eastbound on Potomac, then 50 or 75 feet west of the intersection. Mr. Brown 'relaxed on the accelerator.' But, as he 'got a little further up', he noticed that defendant did not seem to be checking his speed, so he 'slapped on the brakes' and veered slightly to his right. The left front end of his car came into contact with the right side of defendant's car, at its right front door. Mr. Brown further testified that his car had practically stopped when the collision occurred; that defendant's car was traveling about 35 miles an hour when he first saw it and that it did not noticeably slow prior to the collision.
According, to defendant's evidence, he, when one half block west of the intersection, was driving at a speed of about 20 miles an hour, which he reduced to about 15 miles an hour when he was about 10 feet west of the intersection. At that point he looked to his right down Sulphur to see if anyone was coming. He could see south down Sulphur between 60 and 75 feet, saw nothing coming, 'stepped on the pedal' and started across the intersection. When he was 3 or 4 feet from the east curbline of Sulphur and 3 or 4 feet from the south curbline of Potomac, 'I got banged and that was it.' He did not think that he ever looked to his right but the one time before he entered the intersection and that was when he was 10 feet west of it; and he did not see Mr. Brown's car as it came up to or entered the intersection, or during the time that he, defendant, traveled approximately 30 feet into it before his car was struck by the Brown car. On cross-examination, defendant said that before he 'arrived at the corner [he] looked both ways' and did not see Mr. Brown coming.
Instruction No. 3, given in behalf of defendant, and of which plaintiff complains, reads as follows:
'The Court instructs the jury that if you believe and find from the evidence that as defendant, Carl Hofmeister, drove his automobile eastwardly on Potomac Street and as he neared Sulphur Avenue, he looked in both directions but saw nothing approaching from his right, and if you further believe and find that he then continued across the intersection and when close to the east curb of Sulphur Avenue his automobile was struck in the side by an automobile operated by William Henry Brown, and if you further believe and find that the defendant, Carl Hoffmeister, was exercising the highest degree of care in keeping a lookout then, and in such event, plaintiff is not entitled to recover and you must find your verdict for the defendant.' (Emphasis ours.)
The instruction hypothesizes three basic findings by the jury which, if by the jury found in the affirmative, it was required to return a verdict for defendant:
1. That as defendant 'neared Sulphur Avenue' he looked in both directions and saw nothing approaching from his right;
2. That he then continued across the intersection and was struck by the Brown car near the east curbline of Sulphur; and
3. That he was exercising the highest degree of care in keeping a lookout then.
Does the third hypothesized finding refer only to the second hypothesized finding or does it refer to both the second and the first? We are inclined to the view that the jury would understand the instruction as written to declare that if, as defendant neared the intersection, he looked in both directions and saw nothing approaching from the right, the duty of defendant to exercise the highest degree of care in keeping a lookout arose only after he 'continued across' the intersection, without having...
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