Goggin v. Schoening
| Decision Date | 21 January 1947 |
| Docket Number | No. 27058.,27058. |
| Citation | 199 S.W.2d 87 |
| Parties | GOGGIN v. SCHOENING et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Raymond E. LaDriere, Judge.
"Not to be reported in State Reports."
Personal injury action by Page Goggin against Louis Schoening and Doris Muckerman. From an adverse judgment, defendant Doris Muckerman appeals.
Affirmed.
J. D. Leritz, of St. Louis, for appellant Doris Muckerman.
Lashly, Lashly, Miller & Clifford and Oliver J. Miller, all of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action to recover damages sustained by plaintiff in a collision between a Pontiac automobile in which she was riding, owned and driven by defendant Doris Muckerman, and a Plymouth automobile owned and driven by defendant Louis Schoening.
The trial which was had on November 26 and 27, 1945, with a jury, resulted in a verdict and judgment in favor of plaintiff against both defendants for four thousand dollars, and defendant Doris Muckerman appeals.
The accident occurred in the village of Rock Hill on Rock Hill Road, which runs north and south, on November 18, 1943, about 1:30 or 2 o'clock in the morning. It occurred at a point not far south of Caesar's tavern, owned and operated by Caesar Venegoni, which was located on the east side of Rock Hill Road about six feet from the east edge of the road. It was in a valley at the bottom of two hills, one to the north and the other to the south of it. The traveled roadway was made of concrete and was eighteen feet wide. The center of the roadway was not marked by a painted line, but there was a crack in the center between two slabs of concrete. The roadway was so constructed. There was a macadam shoulder on each side of the concrete slabs. At the place where the collision occurred there was a concrete curb on the west side. There was no curb, but just a ditch, on the east side. There was a parkway and sidewalk on the west side but no sidewalk on the east side. The collision occurred about ten feet north of Hardeth Court, sometimes referred to as Hardeth Lane, which intersected Rock Hill Road on the west. The Muckerman car, in which plaintiff was riding when the collision occurred, was traveling south up the hill. The Schoening car was traveling north down the hill.
Manchester Road intersects Rock Hill Road about a mile north of Caesar's tavern, and Euclid Avenue intersects Rock Hill Road on the east a short distance south of the top of the hill. There are other intersections of streets with Rock Hill Road in Rock Hill village from the north to the place of the collision.
Plaintiff testified that she was twenty-five years of age and resided with her parents in Kirkwood; that on the evening prior to the accident she was visiting at the home of defendant Doris Muckerman in Webster Groves intending to spend the night with her; that about nine thirty that evening she and Miss Muckerman drove to the home of Miss Muckerman's sister, Mrs. Blumeyer, who lived in Warson Woods north of Manchester Road and about two or three miles west of Rock Hill Road; that they started back to Miss Muckerman's home about one o'clock in the morning; that they drove over to Manchester Road and east on Manchester Road to Rock Hill Road and south on Rock Hill Road; that Doris was driving; that she was seated in the front seat to Doris' right; that as they were driving along she and Doris were just talking; that they got about a half block past Caesar's tavern; that Euclid Avenue comes into Rock Hill Road at about the top of the hill to the south of Caesar's tavern; that the Muckerman car was about a block or a block and a half from Euclid Avenue at the time of the accident; that they were just going up the hill and she looked up the hill and there were lights coming down the hill and she saw it was coming close to them and she said "Doris, that man is going to hit us," and the next thing there was a collision; that it seemed that the collision occurred almost immediately after she made that remark; that at that time she did not notice whether Miss Muckerman did anything with her car; that she did not notice whether she swerved or applied her brakes or did anything; that it was rather a hard impact; that she was thrown to the bottom of the car on the right underneath the dashboard and hit the dashboard, and as she went under there the wind was knocked out of her; that she was wedged down there on the floor; that she might have lost consciousness temporarily; that she must have been dazed; that the next thing she remembered Mr. Schoening came around and opened the right door and tried to help her out but she could not talk then; that Mr. Schoening couldn't get her out; that some one helped her out of the car; that she believed it was Mrs. Nolan; that the Rock Hill village police came and took her and Miss Muckerman to the county hospital; that it seemed to her that as they approached the point of the collision Miss Muckerman was driving on the east side of the concrete; that at the time of the accident she was not paying any attention to the crack between the two slabs of concrete, so that she could not tell exactly where the car was with reference to that center line; that when she first saw the Schoening car coming over the hill it appeared to her that it was coming right at them; that he seemed to be on his side; that it seemed to her that he was coming on his side so that the cars seemed to just meet there; that she could not tell how close the cars were together at the time she made the remark, "Doris, that man is going to hit us"; that though she did not know whether it was her imagination or not, the car seemed to come over towards Doris' car; that when she made the remark to Doris that the man was going to hit them, she didn't notice whether Doris slowed up or what she did; that it seemed to her that Miss Muckerman's car was on her side of the roadway, though she could not be sure of this; that she was not watching the division line in the concrete; that she was not even looking at the line; that she did not make any special note as to where the Muckerman car was as they went along; that it just seemed to her that the car was on the right-hand side of the road; that the car wasn't far enough over to call her attention to it; that she would not say the car had not crossed the dividing line at that time, but did not think it did; that she did not look; that she was not paying any particular attention as to the rate of speed at which Miss Muckerman was driving before she called her attention that the car was going to hit them; that she was not paying any attention to it, but she guessed she would say that as they traveled from Mrs. Blumeyer's down to the time of the accident they were traveling at a moderate rate of speed; that she had that impression; that the first time she observed the Schoening car coming over the hill the Muckerman car was about a block south of Caesar's tavern; that that was the first time she observed the car coming over the top of the hill; that she did not remember observing Miss Muckerman's car to the left of the center line of the road at any time as they were driving southwardly on Rock Hill Road; that she did not at any time get the impression of Miss Muckerman's car swerving; that as far as her impressions were concerned as a passenger in the car it continued in a straight line southwardly on Rock Hill Road; that she made no particular observation as to how far the right side of the car was to the right side of the road or how far the left side was from the center of the road; that she made no observations with regard to those matters; that she and Miss Muckerman drank some beer while at the Blumeyer home; that Miss Muckerman had a beer or two; that on their way to the Blumeyer home they traveled west over Euclid Avenue, north over Rock Hill Road, and west on Manchester; that on their return home they used the same route to the point of the collision and intended to make a left turn into Euclid Avenue at the top of the hill; that the Muckerman car was stopped after the accident on the west side of the highway; that she believed it was all on the concrete pavement except the right front wheel and she thought that was off; that she believed the right front wheel was off of the right side of the concrete pavement; that that was the way it appeared to her; that it appeared to her that the left wheels were on the pavement; that it appeared to her that the right rear wheel and the two left wheels were on the pavement; that she believed the front part of Mr. Schoening's car was on the west part of the highway; that she thought it was up against the Muckerman car; that she guessed the Schoening car was facing in a northwest direction; that she thought the back end of the Schoening car was to the east of the center line of the highway; that the Muckerman car was facing southwest.
Defendant Louis Schoening, produced as a witness by plaintiff, testified that as he was going north on Rock Hill Road just before the accident occurred his headlights were burning; that the speed of his car as he came over the brow of the hill and started on down towards Caesar's tavern was about twenty miles an hour; that two cars had passed him coming south; that he saw the third car, which was Miss Muckerman's car, coming and when the third car was almost up to him it suddenly swerved to the left and struck his car; that at the time of this collision his car was on the right-hand side of Rock Hill Road; that he could tell the center line of the road by the joint in the concrete between the right and left slabs; that at the time of the collision his car was to the east of that line; that the left side of his car was about a foot or foot and a half east of that line; that he did not have an opportunity to do anything to avoid the collision; that after the first two cars going south had cleared him...
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