Grundmann v. Knezevich

• Decision Date: 20 January 1970
• Docket Number: No. 33160,33160
• Citation: 449 S.W.2d 874
• Parties: William GRUNDMANN, Plaintiff-Appellant, v. Anne Hussey KNEZEVICH, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 874

449 S.W.2d 874

William GRUNDMANN, Plaintiff-Appellant, v. Anne Hussey KNEZEVICH, Defendant-Respondent.

No. 33160.

St. Louis Court of Appeals, Missouri.

Jan. 20, 1970.

Harry Roth, Donald M. Witte, Clayton, for plaintiff-appellant.

Moser, Marsalek, Carpenter, Cleary & Jaeckel, Paul S. Brown, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

By this action plaintiff sought to recover damages in the amount of $15,000 for personal injuries and property loss resulting from an automobile collision. The accident occurred at approximately 1:00 A.M., on August 25, 1963, at the intersection of Riverview Boulevard and Florissant Avenues in the City of St. Louis, when plaintiff's car, northbound on Riverview Boulevard, came in contact with defendant's vehicle which had been southbound on Riverview and was turning left to go eastwardly on Florissant. The jury returned a verdict in favor of defendant, and plaintiff appealed from the ensuing judgment.

In her brief defendant states that three of the four points relied on by plaintiff in his brief do not comply with Civil Rule 83.05(e), V.A.M.R. We agree, and as we will presently point out we experience some difficulty in understanding the thrust of plaintiff's first point. However, in the exercise of our discretion we will consider on their merits the matters attempted to be raised.

We quote plaintiff's initial point: 'Where, as here, the jury verdict and judgment are unsupported by the evidence which was overwhelming to the contrary, it would be a travesty on justice to allow the verdict to stand.' Such an abstract statement falls far short of the requirement of Civil Rule 83.05(e) that, 'The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. * * *' We surmise from the argument portion of his brief that plaintiff is of the opinion that the court erred in overruling his motion for a new trial, but we are at a loss to comprehend the 'why' of his point. Is he contending that defendant's evidence was not sufficient to support the verdict in her favor? If so, the burden of persuasion as to defendant's negligence and that such negligence was the proximate cause of plaintiff's injury was on plaintiff and the defendant need not have introduced any evidence in support of a verdict in her favor. Parsons Construction Co. v. Missouri Public Service Co., Mo., 425 S.W.2d 166, 172. Is plaintiff maintaining that the defendant was guilty of negligence as a matter of law? If so, plaintiff is in no position to make such a complaint because he did not file any motion for a directed verdict, and voluntarily took his chances with the jury for a favorable verdict by submitting his several theories of defendant's alleged negligence. Parsons Construction Co. v. Missouri Public Service Co., supra; Stanziale v. Musick, Mo., 370 S.W.2d 261; Heideman v. Lorenz, Mo., 349 S.W.2d 230. Or is it plaintiff's position that the verdict was against the weight of the evidence. If so, plaintiff's '* * * point is without merit because the appellate courts of this state have repeatedly held that they will not undertake to weigh the evidence in jury-tried cases before them on appeal. * * *' McCormick v. Russo, Mo., 432 S.W.2d 302, 303.

Plaintiff's next point is that the trial court erred in giving to the jury Instruction No. 4, pertaining to the right-of-way of a left turning vehicle. The fact is that the Instruction about which plaintiff now complains was offered and given by the court at the behest of the plaintiff. Of course, a party may not complain about an instruction given on his behalf and at his request, Parsons Construction Co. v. Missouri Public Service Co., supra; Birmingham v. Smith, Mo., 420 S.W.2d 514; Brown v. Bryan, Mo., 419 S.W.2d 62.

In his third point plaintiff asserts that the court erred in giving Instruction No. 7, offered and given on defendant's behalf, pertaining to the issue of contributory negligence. The 'why' of his complaint, as set forth in the argument portion of his brief, is 'The plaintiff does not criticize the style or content of the Instruction, but plaintiff contends that the Instruction should not have been given at all, because it is not supported by the evidence.' Accordingly, we need not quote the Instruction and instead turn to a consideration of the evidence in the light favorable to defendant, since the verdict was for her. Traffic at the intersection of Riverview Boulevard and Florissant Avenue was controlled by stop lights, the sequence of their operation being that the red light to stop both north and south bound traffic on Riverview appeared at the same time; that the green light, together with a green arrow pointing east, next appeared for southbound traffic desiring to turn left, and to proceed southwardly, with the red light for northbound traffic remaining on during the period the green arrow for left-turning southbound traffic was on; and that when the green arrow (but not the green light) for southbound traffic disappeared the the green light for northbound traffic then came on. Defendant's version of the occurrence was that, being southbound on Riverview, the left-turn green arrow was on as she proceeded through the left turn lane on Riverview and entered the intersection; that at the time defendant entered the intersection and started to make a left turn plaintiff's northbound car was stopped at the stop sign; that plaintiff had turned left and had proceeded to a point almost in the middle of the intersection when plaintiff started up from his stopped position, drove forward, and the collision occurred. Plaintiff conceded on cross-examination that he never saw the defendant's car before the accident occurred. In short, according to defendant's evidence, the stop lights were in her favor and against the plaintiff when defendant entered the intersection and began her left turn, and while plaintiff was in the course of making her left turn defendant started up his car from a stopped and safe position, causing it to come into contact with defendant's vehicle, which plaintiff admitted he never saw before the collision occurred. We are of the opinion that there was sufficient evidence to justify defendant's submission to the jury of the issue of plaintiff's contributory negligence.

Plaintiff's final point concerns a matter which first arose during his voir dire examination. Prior to beginning his voir dire examination, and out of the hearing of the prospective jurors, plaintiff's counsel requested leave to inquire whether any members of the jury or members...