Doisy v. Edwards, 51377
| Decision Date | 10 January 1966 |
| Docket Number | No. 2,No. 51377,51377,2 |
| Citation | 398 S.W.2d 846 |
| Parties | Mary Lee DOISY, Appellant, v. Samuel E. EDWARDS, Respondent |
| Court | Missouri Supreme Court |
John D. Schneider, St. Louis, for appellant.
John J. Cole, Joel D. Monson, Heneghan, Roberts & Cole, St. Louis, for respondent.
PRITCHARD, Commissioner.
In this automobile collision case, tried October 27-30, 1964, the unanimous verdict of the jury and ensuing judgment of the trial court were against plaintiff on her $35,000 claim of damages for personal injuries, and against defendant on two counts of his counterclaim for damages for his personal injuries and loss of services of his wife. Plaintiff appeals, but defendant does not appeal, from the final judgment.
No issue of the submissibility is involved. One issue is the propriety of the giving of Instruction No. 6, at defendant's request, which permitted the jury to find against both parties. That instruction reads: 'The Court instructs the jury that if you find and believe from the evidence that plaintiff was negligent as submitted to you in Instruction No. 4 and if you find and believe from the evidence that defendant was negligent as submitted to you in Instruction No. 1 and if you further find and believe that such negligence, if any, on the part of both plaintiff and defendant combined and concurred to directly and proximately cause the collision mentioned in evidence then you are instructed that neither party is entitled to recover against the other and your verdict shall be in favor of defendant with respect to plaintiff's petition and your verdict should be for plaintiff with respect to defendant's counterclaim.'
The negligence of plaintiff as submitted in the referenced Instruction No. 4 is that she failed and omitted to operate her vehicle upon the right half of the roadway at a time when defendant's vehicle was approaching in close proximity from the opposite direction, and that defendant was thereby caused to attempt to stop his vehicle which was caused to slide and to pass the center line of the highway and into plaintiff's vehicle.
Instruction No. 1, as referenced in the above Instruction No. 6, submitted defendant's negligence in driving his automobile across the center line of the highway onto its northbound half and into collision with plaintiff's vehicle.
Plaintiff contends that Instruction No. 6 is erroneous in that it directed a verdict based on conflicting and inconsistent theories of the case; that it misdirects and misled the jury and is a misstatement of the law in that it affirmatively submits mutually exclusive propositions that the jury find the defendant negligent 'as submitted in Instruction No. 1,' and simultaneously find the plaintiff negligent 'as submitted in Instruction No. 4.'
The collision, March 23, 1963, occurred in the northbound lane of Highway 21, and 3.8 miles south of Highway 141 in Jefferson County, Missouri. The highway, being concrete, has two lanes each eleven feet wide and separated by a center line. Gravel shoulders ten feet wide are on each side of the roadway. At the point of collision the road is straight for 1,000 feet between a curve and the top of the hill to the north. The day was clear and the pavement was dry.
Plaintiff's version of the facts are these: She was driving northward from Ironton, Missouri, to her home in St. Louis, in her husband's 1957 Mercury automobile. Within a mile or two of the scene of the collision she had been driving about 60 miles per hour on the winding highway. Shortly before the accident she came to a long curve turning to her right, at which time she met and passed a car going to the south. She saw defendant's car, generally going southbound on the other side (its own) of the road, but did not notice it any more than its being driven in the opposite direction, until defendant pulled across the center line at an angle. Plaintiff's car was then on her right-hand side of the road, and in the center of her lane. At the time she saw defendant starting to come across the center line about 100 feet (possibly 300 feet) separated the front ends of the vehicles. Defendant's speed, as fast as her own, was between 50 and 60 miles per hour. Plaintiff pulled over, off the road, and to her right when she first saw defendant's car coming over the center line. Defendant's car struck her with its center front end at about the center of her left front wheel, at which time her car was off the right-hand side of the road. Plaintiff had increased her speed to get around defendant's car. She did not observe any speed change of defendant.
Robert E. Doney, Highway Patrolman, testified that defendant's car was a 1960 Chevrolet. He found skid marks approximately 33 feet long, beginning in the southbound lane of the Chevrolet (just north of its final crosswise position in the road), and which extended into the northbound lane at approximately a thirty degree angle. These skid marks were straight, beginning to end, without any sudden swerving or turning thereof. He found the vehicles 200 or 300 feet south of the top of the hill.
The admissions against interest of defendant in his deposition were read in evidence that his automobile was in good working condition prior to the collision; its brakes were good and held evenly; and the tires had tread and were good. He admitted further that the two vehicles came together on plaintiff's side of the road.
Defendant's version of the facts, testified at the trial by him, is as follows: When he first saw plaintiff's car it was in the middle of the curve at which time he was approximately 500 or 600 feet from her, and when each car was in its own lane. Both vehicles were then traveling 45 to 50 miles per hour. He testified: 'She came out of the curve; instead of straightening up with the road, just gradually went off to the shoulder, and then back on the highway straight ahead in my lane.' When he saw her cross the white line his foot came off the gas, reducing his speed 5 miles per hour. She continued coming toward him, and he saw her head move from behind the steering wheel and her right hand go out; and he saw the front end of her car raise up--he 'figured she hit the gas.' That was when che went for the brake' to try to hold his car to let her get out of the way. 250 to 300 feet then separated the cars. When he hit the brake, his car went into a straight slide, gradually to the left, and the headlights of the cars came together. Her speed was then...
To continue reading
Request your trial
-
Rodriguez v. Suzuki Motor Corp.
...he did not arrest Dubis or have her blood alcohol level taken. Nor did he later attempt to obtain a warrant for her arrest.1 Doisy v. Edwards, 398 S.W.2d 846 (Mo.1966).2 Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 75 (Mo. banc 1990).3 W.R. Grace & Co. v. Hughlett, 729 S.W.2d 203, 206 ......
-
Rodriguez v. Suzuki Motor Corp.
...circumstance from which it might be inferred that the driver's physical condition was impaired at the time of the accident. Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo. banc 1966), citing Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 (1944) and Boehm v. St. Louis Public Servic......
-
McHaffie By and Through McHaffie v. Bunch, 76840
...from which it might be inferred that defendant had an impaired physical condition at the time of the collision." Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo.1966). Here eyewitnesses observed Bunch's vehicle pass another, fishtail, weave a little bit, and dip into the median once, return to......
-
Bentley v. Crews
...inferred erratic driving caused the collision. Thus, evidence of Fair's blood alcohol concentration was not relevant, Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo.1966); Bohn v. James, 573 S.W.2d 448, 449 (Mo.App.1978); Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 (1944); see ......