Duffendack v. St. Louis Public Service Co.
| Decision Date | 19 February 1963 |
| Docket Number | No. 31134,31134 |
| Citation | 365 S.W.2d 52 |
| Parties | Omer B. DUFFENDACK, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Donald W. Bird, Gerald D. Morris, St. Louis, for defendant-appellant.
Hullverson, Richardson & Hullverson, Everett Hullverson, Corinne Richardson, St. Louis, for plaintiff-respondent.
DOERNER, Commissioner.
Plaintiff's action, in two counts, is for personal injuries and property damages claimed to have resulted from a collision between plaintiff's automobile and defendant's motorbus. Trial before a jury culminated in a verdict and judgment in favor of plaintiff for $5,000 for personal injuries and for $965.95 for damages to plaintiff's car. Its after-trial motions being unavailing, defendant appealed to this court.
The collision in question occurred on September 19, 1960, about 1:45 P.M., in Kirkwood, Missouri, at the intersection of Adams Street, an east-west street, and Kirkwood Road, a north-south thoroughfare. The weather was clear and the streets dry. Traffic at the intersection was controlled by electric signals, so set that southbound and eastbound traffic never had a red or green light at the same time.
Plaintiff, a retired Methodist minister, operating his 1959 four-door Cadillac sedan southwardly on Kirkwood Road, in obedience to a red light, came to a stop in the curb lane with his bumper approximately even with the north curb of Adams. While plaintiff was stopped he noticed the bus in question on Adams, headed east, and stopped about 12 or 14 feet west of the west curb of Kirkwood Road. After he had been stopped some 5 to 10 seconds the light facing him turned green, and plaintiff started forward. Plaintiff was some distance into the intersection when he asw the bus start eastwardly, but thought it was merely rolling up to the curb line to stop there. When he was practically at the center line of Adams he realized that the bus wasn't going to stop, momentarily touched his brake, and then stepped on the accelerator and swerved in an effort to get out of the way of the bus. The front of plaintiff's car was 'practically to the south side of Adams Street' when the bus struck it a rather violent blow, right square in the center of the right doors.
Defendant raises four points on appeal, the first of which is that plaintiff was guilty of contributory negligence as a matter of law. A plat introduced by defendant, and accepted as accurate by plaintiff, showed Adams Street to be 43 feet 4 inches wide. Starting with plaintiff's testimony on cross-examination that 'After I had gotten out practically to the middle * * *' of Adams when he realized that the bus was not going to stop for the red light, defendant, using various estimates of plaintiff and its own bus driver, argues that plaintiff could have stopped approximately 2 feet short of the path of the bus. Thus defendant contends that the bus was stopped 'About two fee' from the south curb of Adams (one of defendant's bus driver's estimates); that the bus was 8 feet wide (the bus driver's estimate); that the left side of the bus was thus 11 feet 8 inches from the center of Adams (predicated on the bus driver's estimates); that plaintiff testified he was 'practically' to the middle of Adams, and therefore plaintiff meant he had not yet reached the center, so that he had 12 feet in which to stop; that plaintiff was then traveling 10 miles an hour (one of plaintiff's estimates); and that at that speed he could stop in 10 feet, including reaction time (another of plaintiff's estimates). Of course, plaintiff is not conclusively bound by his estimates of speed, position, and stopping distance. McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739; Appelhans v. Goldman, Mo., 349 S.W.2d 204; Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, much less by the testimony of the defendant's witness' estimates of distances, Hall v. Clark, Mo., 298 S.W.2d 344. Furthermore, defendant's argument assumes a fact not in evidence, that the bus traveled directly forward after it started up; and that assumption, in turn, appears to be in conflict with the driver's testimony that plaintiff's car was 'About the center * * *' of Adams when he first saw it and that his bus was then just four or five feet from it. A plaintiff's contributory negligence is ordinarily a jury question unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury. Dye v. Geier, Mo., 345 S.W.2d 83; Kickham v. Carter, Mo., 314 S.W.2d 902. Whether plaintiff was guilty of negligence in failing to attempt to stop was, under all the evidence, a jury question.
Defendant next complains that plaintiff's instruction No. 11 submitted an erroneous measure of damages to plaintiff's car, in that it permitted the jury to assess this item of damages on the basis of the cost of repairs. Having failed to raise such a specific objection at the trial before submission of the case to the jury, or in its motion for a new trial, defendant is scarcely in a position to do so here. Civil Rules 70.02, 79.03 and 83.13, V.A.M.R. Hartz v. Heimos, Mo., 352 S.W.2d 596; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710. Furthermore, plaintiff testified he had expended the sum of $965.95 for repairs. Defendant did not object, and cross-examined plaintiff as to the damages to the automobile. It was in evidence that the car was a 1959 Cadillac and in good condition before the collision in question. Defendant's point was decided adversely to it by the Supreme Court in Oberhaus v. Eichwald, Mo., 303 S.W.2d 29, and by this court in General Exchange Ins. Corp. v. Young, Mo.App., 206 S.W.2d 683 aff. 357 Mo. 1099, 212 S.W.2d 396.
Defendant next contends that it was denied a fair trial by an impartial jury because one of the jurors on voir dire examination intentionally concealed the fact that he had previously collected money for an injury he had received in the course of his employment. At the start of his interrogation of the panel trial counsel for defendant (who is not counsel for defendant on this appeal) stated:
...
To continue reading
Request your trial
-
Fellows v. Farmer
...S.W. 907, 909(1).12 V.A.M.R. Rules 79.03 and 70.02; Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609(10-13); Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 54(4); M.F.A. Cooperative Ass'n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 288(11); Grimes v. Standard Oil Co......
-
Langdon v. Koch, 8383
...for instance) to support such, the difference in market value before and after value may be found or inferred. Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52; Oberhaus v. Eichwald, Mo., 303 S.W.2d 29; Blanke v. United Rys. Co., Mo.App., 213 S.W. 174; Helton v. City of St......
-
Misch v. C. B. Contracting Co.
...after-trial motion. Millar v. Berg, Mo., 316 S.W.2d 499, 502; Sides v. Mannino, Mo.App., 347 S.W.2d 391, 394; Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 54. The question was not properly raised; but under Supreme Court Rule 79.04 we will, at appellant's urging, exam......
-
Henrickson v. Resnik
...v. St. Louis Pub. Serv. Co., Mo., 350 S.W.2d 739, 744-745; Lay v. McGrane, Mo., 331 S.W.2d 592, 596-597[3-5]; Duffendack v. St. Louis Pub. Serv. Co., Mo.App., 365 S.W.2d 52, 53[1-3], nor can calulations based on such estimates or approximations convict the defendant of contributory negligen......