Dean v. Jackson

• Decision Date: 17 September 1963
• Docket Number: No. 31309,31309
• Citation: Dean v. Jackson, 370 S.W.2d 716 (Mo. App. 1963)
• Parties: Minnie Marie DEAN, (Plaintiff) Respondent, v. Juanita JACKSON, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 716

370 S.W.2d 716

Minnie Marie DEAN, (Plaintiff) Respondent, v.Juanita JACKSON, (Defendant) Appellant.

No. 31309.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1963.

Henry D. Espy, St. Louis, for appellant.

Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent.

WOLFE, Acting Presiding Judge.

This action involves only the counterclaim of defendant, Juanita Jackson, as the plaintiff had dismissed her action prior to the trial on the counterclaim.The counterclaim arose out of a collision between the automobile of the defendant and the automobile of the plaintiff.The defendant's claim is for damages arising out of personal injuries, working time lost, and medical expenses.The trial was to a jury, which returned a verdict for the plaintiff, and from the resulting judgment the defendant appealed.

The collision in question occurred at the intersection of Evans Avenue and Deer Street, in the City of St. Louis.Evans Avenue runs in an east and west direction.Deer Street comes into it from the north.It does not cross Evans, but terminates at the intersection.A plat of the street would therefore form a 'T' at the place of collision.Evans was 40 feet wide, and automobiles were parked 'here and there' on the south side of the street.There were no witnesses to the collision except the plaintiff and defendant.Each party was driving her automobile eastwardly on Evans prior to the collision.There was no one in either car other than the driver.The defendant is the claimant here, and, as stated, only her counterclaim was tried.Both parties testified, and their respective versions of what happened are in considerable conflict.

The defendant stated that at 10:15 P.M., October 13, 1959, she entered Evans Avenue and began driving to the east.She entered Evans from Cora Avenue, which is a block west of Deer Street.She said that she drove eastwardly on Evans, at a speed of about 25 miles an hour, for about half a block, and then moved her automobile to the left, so that it was a few inches south of the center of the street, and that she reduced her speed to 15 miles per hour.She said that she turned on her left-turn signal and looked into her rear mirror.She saw the lights of an eastbound automobile behind her after she had traveled a half block on Evans Avenue.She said that after she was in the intersection and about to make a left turn into Deer Street, she looked in the rear view mirror, and the car behind her was about two car lengths to her rear.

Before she made the turn she looked to her right and again into the mirror.She never looked to the left.She said that she then turned her car to the left and that it was struck at the door on the left side by the car of plaintiff.She said her car was damaged near the left headlight and on the left side.She said that her car came to a stop, but that plaintiff's car passed on to her left and came to rest against a sewer opening at the northeast corner.

The plaintiff's version of what happened is at wide variance with the defendant's.She testified that she entered Evans Avenue to the west of the intersection where the defendant entered, and drove eastwardly with the intention of making a left turn at the Deer Street intersection.She saw the defendant's automobile enter Evans Avenue at Cora Avenue about a quarter of a block ahead of her.She saw defendant's car travel close to the line of parked cars on the right side of the street.She said that the defendant's car was slowing down and then starting up, as through the defendant was going to park.

As the plaintiff intended to turn left at the Deer Street intersection, which both cars were approaching, she moved her car so that the left side of it was in the center of the street.She sounded her horn and turned on her left-turn signal.At that time the defendant's car was about two car lengths east of her and was not signaling for any turn.The plaintiff was then traveling at a speed of 20 to 25 miles an hour.While she was still 75 feet west of Deer Street she was passing the defendant's car, and the front of her car was even with the front of the defendant's car.She said that when the entire hood of her car was ahead of the front of the defendant's car, the defendant's car struck the rear of the right front door of her car.Upon the impact the plaintiff lost control, and her automobile went over to the northeast corner of the intersection and struck a high curbing above a sewer there.As stated, there was a verdict for the plaintiff on the defendant's counterclaim, and the defendant is the appellant here.

Defendant charges that an instruction designated as InstructionNo. 3 is erroneous.The instruction given on behalf of the plaintiff hypothesizes facts upon which the jury is permitted to find the defendant guilty of contributory negligence.It is based upon the plaintiff's version of the occurrence which gave rise to the accident.She was entitled to have such an instruction given.It of course conflicts with the defendant's evidence, but the jury had to decide which version it was to believe, and it should have been instructed on the law that related to both sets of facts.Robb v. St. Louis Public Service Co., 352 Mo. 566, 178 S.W.2d 443, 1. c. 444;Highfill...