Hecker v. Schwartz
Decision Date | 11 March 1968 |
Docket Number | No. 52833,No. 2,52833,2 |
Citation | 426 S.W.2d 22 |
Parties | Florence HECKER, Respondent, v. C. Monville SCHWARTZ and Lloyd E. Bennett, Co-Executors of the Estate of Edward Longinette, Deceased, Appellants, and Kent Gage, Defendant |
Court | Missouri Supreme Court |
Kappel & Neill and Robert E. Staed, St. Louis, for respondent.
F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellants Schwartz and Bennett.
In this jury-tried action for damages resulting from a vehicular collision in the City of St. Louis, which occurred at approximately 4:50 p.m. on December 8, 1963, plaintiff, Florence Hecker, received a verdict in the amount of $50,000 against defendant executors of Edward Longinette, deceased. The jury returned a verdict in favor of defendant Gage. The executors appealed. This opinion is written on reassignment.
The collision occurred on the Grand Avenue viaduct, which extends north and south, and which, at the time of the collision, was covered with a solid sheet of ice and was slippery. The viaduct is six lanes wide, three lanes northbound, and three lanes southbound, with a painted center line. The vehicles involved were driven by Edward Longinette, traveling north, and Kent Gage, traveling south. Plaintiff was a passenger in the Longinette car, riding in the right rear seat. Longinette's wife was riding in the right front seat. Mrs. Eleanore Welsh was riding in the left rear seat. Longinette and his wife died after the collision and before the trial. The collision occurred near the center line of the viaduct. The investigating police officer was unable to determine the point of impact.
Appellants contend (1) that plaintiff failed to make a submissible case against Longinette's executors, and (2) that Instruction No. 3 was prejudicially erroneous. We reverse and remand.
Plaintiff testified, in part, as follows:
'Q Mrs. Hecker, I am not sure I am making myself clear. Just prior to the collision, did you see the Gage automobile?
'A Come over, you mean? Oh, yes, yes.
'Q How far away from you was it when you first saw it?
'A About two car lengths.
'Q Two car lengths. A Approximately thirty feet.
'Q You were travelling which way?
'A We were travelling north.
'Q On the viaduct? A On the viaduct.
'Q What was your rate of speed as you were travelling across the viaduct?
'A I would estimate the speed at thirty miles an hour.
'Q Did you cry out anything when you saw this car?
'A Yes, I did. When I seen this car I said,
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'Q * * * What was the position of your car with reference to the center line just prior to the collision?
'A He (Longinette) was about, from the middle line, the center line of Grand Avenue, two feet.
'Q About two feet from the center line of Grand Avenue?
'A That is correct.
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'Q Do you know whether it was a single line or double line?
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'Q * * * Well, was Mr. Longinette driving to the right or to the east of the center line of Grand Avenue, Mrs. Hecker?
'A Of the center line?
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'Q He was always on his right side of the center line?
'A Up until the impact.
'Q Then after the impact, you don't know which way--
'A (Interrupting) I don't know what happened.
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'Q * * * Mrs. Hecker, did the Gage automobile cross the center line and come onto your side of the street?
'A Yes, it did.
'Q Is there any question about that in your mind?
'A No, there isn't because it came right across.'
In Smith v. Siercks, Mo.Sup., 277 S.W.2d 521, at 525, this Court said: ' * * *'
We believe that under plaintiff's testimony she is conclusively bound to a theory of recovery based upon the fact that the collision occurred as Longinette drove in his half of the roadway and Gage drove in the wrong half of the roadway. Her testimony in this regard consists of positive statements of fact, not estimates nor expressions of opinion. She did not attempt to explain her testimony. Her testimony amounts to a judicial admission that the collision occurred in...
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