Herr v. Ruprecht
| Decision Date | 08 February 1960 |
| Docket Number | No. 47395,No. 2,47395,2 |
| Citation | 331 S.W.2d 642 |
| Parties | John M. HERR, Respondent, v. Jessie M. RUPRECHT, Appellant |
| Court | Missouri Supreme Court |
Charles F. Hamilton, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for defendant-appellant.
Jerome L. Duff and George W. Cloyd, St. Louis, for respondent.
This is a suit for personal injuries alleged to have been suffered as the result of a collision of plaintiff's automobile with one operated by the defendant at a highway intersection in St. Louis County. A jury found for plaintiff and assessed his damages at $45,000. Defendant filed a motion for judgment in accordance with her motion for a directed verdict or, in the alternative, for a new trial. The trial court overruled the motion for judgment and ordered a remittitur of $22,500. Plaintiff remitted and defendant's motion for a new trial was also overruled. Defendant has appealed from the resulting judgment for $22,500.
The sole issue of negligence submitted to the jury was the violation of a provision of the right of way statute, Sec. 304.021(4), Mo.Cum.Supp.1957 (see Laws 1953, p. 593, p19), V.A.M.S., which reads as follows:
On this appeal the defendant urges: (1) that the court erred in failing to direct a verdict for the defendant in that a submissible case of negligence was not made, and also because the plaintiff was guilty of contributory negligence as a matter of law; (2) that plaintiff's main verdict-directing instruction was reversibly erroneous; (3) that the trial court improperly restricted the defendant in oral argument; and (4) that the judgment is grossly excessive. In reviewing the evidence to determine if defendant's motion for a directed verdict should have been sustained, we consider it in the light most favorable to plaintiff, the prevailing party, and give him the benefit of all reasonable inferences. Layton v. Palmer, Mo., 309 S.W.2d 561, 564(1), 66 A.L.R.2d 1242.
The collision occurred on October 25, 1956, at about 9:15 p. m. at the intersection of U. S. Highway 66 and Cheshire Lane. Highway 66 is a through highway and at the place in question was 40 feet in width, running generally east and west; it consisted of four traffic lanes, each ten feet wide, two eastbound and two westbound. There was a twelve-foot shoulder on the south side of the pavement and an eight-foot shoulder on the north. Cheshire Lane, running north and south, intersects Highway 66 at right angles. Its pavement was 36 feet wide and flared to 60 feet at the edge of the shoulder on the south side of Highway 66 and to a somewhat greater width where it joined the pavement. On the north side Cheshire widened to 70 feet at the edge of the north shoulder. At the southeast and northwest corners of the intersection the State Highway Commission had erected stop signs on Cheshire for the control of traffic. To the east of the intersection, Highway 66 is fairly straight and level for a distance of about 500 feet and the view for that distance is unobstructed.
On the night in question the plaintiff and his wife had attended a movie in downtown St. Louis and were returning to their home in the southwest part of St. Louis County, traveling in a westwardly direction on Highway 66. It had been raining since they left the theater about 8:30 p. m. Plaintiff's wife had dozed off shortly after leaving the theater and she was asleep in the right front seat of the car when the collision occurred. The plaintiff was driving a 1950 Chevrolet, in good mechanical condition; as he approached the intersection he was traveling at about 40 miles per hour; the posted speed limit in that area was 50 miles per hour. The rain was 'fairly heavy'; it was 'between moderate and heavy' and appeared to be coming from the south. The windows of the car, including the one on the driver's left, were closed and the windshield wipers were in operation. Plaintiff's headlights were on low beam which, he said, enabled him to see better because on rainy nights The plaintiff estimated that his headlights shone ahead of him a distance of about 30 feet on the pavement and with the reflection he could see another 20 feet, or a total distance of about 50 feet. Because of weather conditions, he could not see as far as on a clear night.
Plaintiff was driving in the most northern traffic lane with the right side of his car about a foot from the north edge of the pavement. When he was approximately 50 feet from the center line of Cheshire, he saw defendant's car moving north in the intersection ahead of him. He tried to apply his brakes but was unable to stop, and he struck defendant's car at about its right front door. The plaintiff, his wife, and the defendant were all injured, and the cars were practically demolished. There were no other cars within view on either highway at the time of the collision. As he approached the point where 'Cheshire cuts away,' plaintiff glanced to his right and his left for traffic and saw nothing. He could not estimate the speed of defendant's automobile, but testified that it was in motion, going slower than his. He could not say definitely whether the headlights or taillights of defendant's car were burning, but he did not see any lights on it. Plaintiff did not have time to swerve his car and he did not recall whether he sounded the horn. He did not think his brakes had time to take effect before the collision occurred. There was expert testimony that an automobile at 40 miles per hour travels 60 feet per second, and that the average reaction time is three-fourths of a second during which time an automobile so moving travels 44 feet.
The defendant stood on her motion for a directed verdict and offered no evidence. Portions of her deposition, read in evidence by plaintiff, tended to show: that she was driving north on Cheshire Lane in a 1956 Lincoln owned by Ruprecht Building Materials Company of which she was President; that when she arrived at the Highway 66 intersection, she stopped the car about a half-car length from the south edge of the highway and looked both ways; that she probably could see as far as a quarter of a mile to the east, but seeing nothing, she started across 'like I always did'; that she did not see the plaintiff's automobile at any time prior to the collision.
F. Kenneth Fletcher, a member of the Missouri State Highway Patrol who arrived at the scene very shortly after the collision, testified that it had been raining and the pavement was wet; that he found broken glass, chrome strips, dirt and other debris on the pavement 'to the north side of' Highway 66, and in the 'general vicinity * * * of the center' of Cheshire Lane. This description, aided by his markings on a plat in evidence, placed the debris in the north portion of the northeast quadrant of the intersection. This witness further testified: that he interviewed the defendant at the hospital where she was on an X-ray table; that apparently she had been drinking, for the odor of alcohol on her breath was strong enough that he could detect it without bending over; that her speech was not coherent, but he did not know whether her incoherence was from drinking or shock; that he got very little information from her, and that she told him: 'I don't know what happened.' It was admitted in the opening statement of defendant that she had had two glasses of beer on the evening in question prior to the collision.
The plaintiff suffered contusions and abrasions, a concussion, and a sprain of the right knee; the latter seems to have consisted of the tear of a ligament. He was in the hospital six days, received diathermy treatments for six or seven weeks, returned to his same job on January 15, 1957, about 80 days after the injury, and thereafter worked regularly. His treatments ceased in April 1957, but he testified that the knee remained sore and painful when he went back to work, and that its movements were somewhat limited. Thereafter it continued to improve, but it still remained somewhat painful and it ached; complete movement had not been restored. He used oil of wintergreen on it and wore a plastic bandage. After working for about fourteen months and on March 10, 1958, plaintiff 'stepped from the truck on a piece of ice, and my feet went out from under me,' and he injured his 'knees.' Thereafter his right knee became sore and painful and although he continued to work for a week, he then went to his physician; the knee was X-rayed, he was hospitalized and the knee was operated on. The operation consisted of the removal of a torn meniscus. While the doctors failed to define the term, it apparently refers to a fibrocartilage of the knee. A normal convalesence followed, with treatment by physiotherapy, heat and massage. Shortly prior to trial, on September 10, 1958, there was full extension of the knee, a slight limitation in flexion, some weakness and some atrophy of the muscles of the front of the thigh. There was medical testimony that plaintiff would continue to have for at least 10-20 years an aching of the knee when bent, pain when it was bumped or struck, some limitation in his activities, and that he might develop arthritis; also, that plaintiff would have had a 'useful' knee if he had only suffered the first injury. At the end of June 1958, plaintiff started back at his job on the milk route but found that he could not do the climbing required; on July 6 he began the operation of a...
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