Gardner v. McGee

• Decision Date: 29 January 1974
• Docket Number: No. 35158,35158
• Citation: 505 S.W.2d 452
• Parties: Eloise GARDNER, Plaintiff-Appellant, v. Deborah McGEE, Defendant-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 452

505 S.W.2d 452

Eloise GARDNER, Plaintiff-Appellant, v. Deborah McGEE, Defendant-Respondent.

No. 35158.

Missouri Court of Appeals, St. Louis District, Division Two.

Jan. 29, 1974.

Mogab, Hughes & Green, Inc., Frank B. Green, St. Louis, for plaintiff-appellant.

Goldenhersh & Newman, Leo M. Newman, St. Louis, for defendant-respondent.

McMILLIAN, Judge.

This is an appeal by plaintiff, Eloise Gardner, from a judgment of the Circuit Court of City of St. Louis entered in favor of defendant, Deborah McGee.

The controversy arose out of a rear end automobile collision which occurred in the right eastbound traffic lane on Natural Bridge Avenue at its intersection with Fair Avenue. Plaintiff claims that the collision occurred after she had come to a stop in order to make a right turn on a red light. Defendant claimed that after plaintiff had stopped, plaintiff put her car into reverse and backed up two feet into collision with her car.

As a result of the collision, plaintiff complained of the usual sprains and strains to her head, neck, shoulders, back, and legs. She also plead and put on some evidence of a ruptured disc. However, the court gave a withdrawal instruction on the issue of a ruptured disc, stating, '. . . it is the Court's opinion that this (ruptured disc) has not been proven as the result of this accident . . .'

Plaintiff claims that the court committed error in giving the withdrawal instruction because the instruction usurped the function of the jury; and misled the jury by effectively withdrawing evidence on matters, such as the question of aggravation, still properly before the jury. ¹ Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84 (1930); Orloff v. Fondaw, 315 S.W.2d 430 (Mo.App.1958) and Conner v. Aalco Moving & Storage Co., 218 S.W.2d 830 (Mo.App.1949).

While we perceived some merit in plaintiff's contention, a resolution of the question is unnecessary for a decision in this case. Although this was a rear end collision, the issue of liability was hotly contested as to whether or not plaintiff did or did not back up her automobile at the time of the accident. From the jury's finding, which we must accept, they believed defendant's version, and, accordingly, returned a verdict for defendant on the issue of liability, and thus did not reach the issue of damages. In the case of Jensen v. Walker, 496 S.W.2d 317 (Mo.App.1973), a husband and wife sued defendant for damages as a result of an automobile collision in three counts: Count I, wife's personal injuries: Count II, husband's loss of consortium; and Count III, husband's property damages for his automobile, and the jury returned a verdict for the defendant. Both husband and wife claimed error because of the court's refusal to permit the husband to testify as to recent complaints of present back pains by his wife. The court held that inasmuch as the jury found against both parties on the issue of liability, the jury did not reach the issue of damages; therefore,...