Daly v. Schaefer
| Decision Date | 19 January 1960 |
| Docket Number | No. 30201,30201 |
| Citation | 331 S.W.2d 150 |
| Parties | Carl DALY (Plaintiff), Appellant, v. Robert SCHAEFER (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Schomburg & Marshall, Glen C. Schomburg, Richard M. Marshall, St. Louis, for appellant.
Schwartz & James, Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondent.
Appellant brought an action against respondent for property damage and personal injuries which appellant alleges resulted from the negligence of respondent in the operation of his automobile. The prayer of appellant's petition asked for total damages in the sum of $15,000. We shall refer to the parties as they were designated in the trial court. The verdict and judgment was in favor of defendant and plaintiff appeals.
The amount in dispute under the pleadings would vest jurisdiction in the Supreme Court. However, we are not restricted to the pleadings in determining our jurisdiction and we may look to the record for such determination. Counsel for plaintiff in his argument before the jury in the trial court told the jury he thought the sum of $6,000 would be a fair and proper sum for property damage and personal injuries sustained by plaintiff as a result of the collision. Under plaintiff's trial theory on the issue of damages jurisdiction of the appeal is in this court. Beasley v. Athens, 365 Mo. 158, 277 S.W.2d 538; Mitchell v. Southwestern Bell Telephone Co., Mo.App., 298 S.W.2d 520.
The first point relied on by plaintiff is that the trial court erred in overruling his motion for a directed verdict. In support of this point plaintiff contends that defendant's own testimony and the uncontroverted portion of defendant's deposition read into evidence by plaintiff, established plaintiff's case that defendant was guilty of negligence proximately causing the collision and that plaintiff was free of contributory negligence. This point requires a review of the facts.
Plaintiff and defendant were driving their respective automobiles southwardly on Lindbergh Boulevard near Clayton Road in St. Louis County, Missouri, about 10 p. m. on May 11, 1957. Lindbergh Boulevard is a four lane highway with two lanes for southbound traffic and two for northbound traffic. A concrete island, which extends approximately 300 feet south of Clayton Road, separates the southbound traffic from the northbound traffic. South of Clayton Road there is an opening in the island which permits southbound traffic on Lindbergh to make a left turn into places of business on the east side of the highway. According to plaintiff's estimate the opening is 250 feet south of Clayton Road. The flow of automobile traffic at the intersection of Lindbergh and Clayton Road is controlled by electric signals. On the night the collision occurred, the weather was clear and the pavement dry. Plaintiff and defendant were driving their respective automobile in the inner lane for southbound traffic. Plaintiff did not recall if he had to stop at the electric signal. He though the crossed Clayton Road without stopping. A passenger in plaintiff's automobile testified that plaintiff stopped his automobile at the intersection. Defendant was certain that he (defendant) had the 'green light' in his favor and did not stop at the electric signal.
Plaintiff testified that he crossed Clayton Road at a speed of 15 miles per hour. There was traffic ahead of him in the lane in which he was driving and there was a steady flow of traffic in the outside lane to his right. He accelerated his speed after he crossed Clayton Road to 20 miles per hour which was the highest speed he attained prior to the collision. He maintained a distance of 36 to 40 feet behind the car in front.
Defendant testified that there was traffic in the outside lane and in front of him in the lane in which he was driving. He said he crossed Clayton Road at a speed of 30 to 35 miles per hour and that plaintiff's automobile, prior to stopping, was traveling at the same speed immediately in front of him. Defendant maintained a distance of about 30 to 40 feet behind plaintiff's automobile.
The testimony of plaintiff and his witnesses concerning the events immediately preceding and at the time of the collision shows that after plaintiff crossed Clayton Road he was about two car lengths (36 to 40 feet) behind the automobile in front of him as both automobiles proceeded southwardly. When plaintiff was about 50 or 60 feet north of the opening or break-through in the island he noticed the stop light on the automobile in front indicating stop and 'the car ahead * * * did a braking or stopping motion' and came to a stop. The operator of the automobile in front gave no signal other than the stop light.
Plaintiff described the manner of the stop made by the automobile in front of him as a 'quick stop * * * the man had to stop deliberately, positively.' It was a 'quick and abrupt stop.' Plaintiff immediately applied the brakes on his automobile. In describing the kind of stop he made, he said it was a 'quick stop'; 'a sudden and quick stop'; 'a quick and positive stop.' A passenger in plaintiff's automobile said the automobile in front came to a 'sudden stop' and that plaintiff's automobile came to a 'very sudden stop.' He was afraid plaintiff 'wasn't going to be able to stop' his automobile in time to avoid a collision. Plaintiff said there was another automobile in front of the automobile ahead of him. He did not know what caused the automobile in front of him to stop. However, Mary Walsh, a witness for plaintiff, who was a passenger in the automobile immediately in front of plaintiff's automobile, said a car in front of the one she was in stopped short, 'very suddenly' without giving a signal prior to making a left turn at the opening in the island. She said the automobile she was in was brought to a sudden stop.
Plaintiff said the automobile ahead stopped 20 to 30 feet north of the opening in the island. After both automobiles stopped the distance between them was 5 or 6 feet. Plaintiff did not know whether the stop light on his car was working. He gave no other signal or warning to the operator of the automobile behind him, stating he did not have time to throw out his hand 'or give any signal or warning.'
Plaintiff further testified that after he came to a stop, a period of one to two seconds passed and then he heard the 'squealing of tires' behind his automobile for a period of three to four seconds. Immediately thereafter, the front of defendant's automobile collided with the rear end of plaintiff's automobile causing plaintiff's automobile to collide with the automobile in front. After the impact, which plaintiff described as 'terrific,' he noticed his passenger, Mr. Schroeder, motioning to turn off the ignition. It was then plaintiff became award that his car was in gear and the motor was running causing the tires on his automobile to spin on the pavement, plaintiff's automobile having collided with the rear end of the automobile in front. Plaintiff then turned off the ignition on his automobile. The testimony given by plaintiff's passenger, Mr. Schroeder, of the events preceding and at the time of the collision was essentially the same as that given by plaintiff, except he gave no estimate of the elapsed time between the stop made by plaintiff and the collision. In this connection plaintiff's passenger testified that plaintiff was stopped 'just for an instant' and then he heard 'brakes screaming and we were hit from the rear * * *.'
Mary Walsh testified that the automobile she was in, ahead of plaintiff's car, was stopped a 'few minutes' when she heard the crash and then felt the impact of plaintiff's automobile with the automobile in which she was a passenger. Plaintiff did not look for skid marks on the highway after the collision and neither did his passenger, Mr. Schroeder.
Plaintiff further testified that after the collision six to seven feet separated his automobile and defendant's automobile. He said his automobile was approximately three car lengths north of the opening in the island after the collision.
At the close of plaintiff's case, counsel for plaintiff read to the jury a number of questions and answers contained in a deposition of the defendant taken by counsel for plaintiff. Among the questions and answers read to the jury was the following:
We shall now advert to the testimony of the defendant concerning the events immediately preceding and at the time of the collision.
Defendant testified that while he was maintaining a distance of 30 to 40 feet behind plaintiff's automobile, the first knowledge he had of plaintiff's intention to stop was when he saw plaintiff's automobile 'go down' and plaintiff 'made a complete stop.' Defendant was asked, 'By going down, you mean you saw the front end dip and the rear end rise?' and he answered, 'Yes.' He saw no signal or sign given by plaintiff and said there was no reason for plaintiff to stop that he could see. He said plaintiff stopped about 50 feet north of the opening in the island. Defendant further said that plaintiff made a 'very sudden stop.' After defendant saw plaintiff's automobile come to this sudden stop he looked to his right to see if he could swerve out of the inside lane of traffic, found he could not and then applied his brakes but was unable to stop in time to avoid colliding with the rear end of plaintiff's automobile. After the collision defendant's automobile stopped and defendant testified that plaintiff's automobile proceeded on and came...
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