Elliott v. Wescoat, 47865

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47865,47865,1
• Citation: 336 S.W.2d 649
• Parties: Eupha Louise ELLIOTT, Appellant, v. Kenneth WESCOAT, Respondent
• Court: Missouri Supreme Court

Page 649

336 S.W.2d 649

Eupha Louise ELLIOTT, Appellant, v. Kenneth WESCOAT, Respondent.

No. 47865.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

R. S. McFarland, Nevada, for appellant.

Robert E. Seiler, Joplin, for respondent, Seiler, Blanchard & Van Fleet, Joplin, of counsel.

COIL, Commissioner.

Eupha Elliott sought $25,000 for personal injuries allegedly sustained when the automobile she was driving was struck by an automobile being operated by Kenneth Wescoat, at the intersection of Washington and Walnut in Nevada, Missouri. Wescoat counterclaimed for $257.15 for damage to his automobile. We shall refer to the parties as they were designated in the trial court. A jury found for defendant on plaintiff's claim and for plaintiff on defendant's counterclaim. Plaintiff has appealed from the judgment entered on the jury's adverse verdict.

Plaintiff's evidence tended to show that stop signs were located at all four corners of the intersection of north-south Washington and east-west Walnut. At about 6 p. m. on July 2, 1958, plaintiff drove an automobile south on Washington and stopped when its front end was even with a stop sign located about eight or nine feet north of the north edge of Walnut. She looked to her left and saw defendant's automobile approaching from the east (traveling west) on Walnut about 50 to 59 feet east of the east edge of Washington and slowing as though it would stop at the stop sign. Plaintiff then started forward not knowing whether defendant had stopped, and without again looking to her left or again seeing defendant's car until the instant before its front end struck the left side of her automobile when she had reached the approximate center of the intersection. She could have stopped within two or three feet as she drove into the intersection. Her car came to rest at the southeast corner facing east and the defendant's automobile stopped at the north curb of Walnut about 'two or three parking spaces' west of the west edge of Washington. There was nothing which obstructed the view to plaintiff's left and there was no evidence of any distracting circumstance or other traffic, either vehicular or pedestrian, which had any bearing upon the actions of either plaintiff or defendant.

Defendant's evidence tended to show that his car and plaintiff's car stopped at the respective stop signs at the same time; that he looked twice and each time saw that plaintiff's car was stationary; that he started forward in his regular traffic lane and next saw plaintiff's car when it was a foot or two immediately in front of his car. Defendant said that the sum was 'glaring' but that it was 'not too bad.'

Plaintiff contends the trial court erred in refusing one instruction and in giving two instructions. Inasmuch as we have determined that the trial court did not err in overruling plaintiff's new trial motion, we do not reach defendant's contention that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff's verdict-directing instruction hypothesized the facts of the occurrence supported by her evidence and directed a verdict on the theory that she had a right to assume that defendant would stop at the sign and yield the right of way unless she had or should have had reason to believe to the contrary and that defendant negligently failed to yield the right of way and thereby caused the collision.

Plaintiff's first complaint is that the trial court erred in refusing to give her offered instruction 3. That instruction was: 'The Court instructs the jury, that if two vehicles reach an intersection at approximately the same time, then the vehicle approaching said intersection from the right shall have the right of way. And if the jury find and believe from the evidence that plaintiff's automobile was being driven south on North Washington Street and that defendant's automobile was being driven west on East Walnut Street and if you further find and believe from the evidence that said vehicles reached and stopped, if you find that both vehicles were required to stop at said intersection by City Ordinance, at the same time or approximately the same time, then plaintiff's automobile had the right of way.'

Plaintiff argues that the instruction correctly declared the law and that she was entitled to have the jury so instructed and that it was the only proffered instruction which covered that aspect of the law of 'right of way.' Assuming, contrary to defendant's contention, that the instruction correctly stated the applicable law, it is apparent that plaintiff was not entitled to recover on any theory based upon the law set forth in instruction 3. As we have noted, plaintiff testified unequivocally that after she had stopped and immediately prior to starting forward, she looked to her left and saw defendant approaching the stop sign at decreasing speed and that at that time he was 50 to 59 feet from the east edge of the intersection. Thus, in view of that positive testimony, plaintiff could not recover on the basic premise of instruction 3, that both parties had reached the intersection at approximately the same time. That is to say, plaintiff could not recover on a theory supported only by defendant's evidence which was directly contrary to her own testimony. Miller v. Riss & Co., Mo., 259 S.W.2d 366, 370[2, 3]. And, as we have heretofore noted, defendant did not recover on his counterclaim and, consequently, plaintiff could not have been prejudiced in so far as defendant's cause of action was concerned by the failure of the court to have given instruction 3.

It is true that defendant submitted plaintiff's contributory negligence by instructions B and C (to be hereinafter set forth), Instruction B hypothesized that plaintiff and defendant...