Koehler v. Schott, 32837
| Decision Date | 20 February 1968 |
| Docket Number | No. 32837,32837 |
| Citation | 426 S.W.2d 677 |
| Parties | Charlotte W. KOEHLER, Plaintiff-Respondent, v. Lillie Bogg SCHOTT and Bertha K. Mescher Kelley, Defendants, Lillie Bogg Schott, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Fred Leicht, Jr., St. Louis, for defendant-appellant.
Edmund W. Albright, Morie B. Soule, Hoffman & Shostak, St. Louis, for plaintiff-respondent.
BRADY, Commissioner.
This appeal arises from an action for damages allegedly sustained as the result of a collision between automobiles driven by the co-defendants and the resultant crash of the Schott automobile into the plaintiff's home. Plaintiff had verdict and judgment against both defendants in the amount of $8,500.00. Mrs. Schott appeals alleging prejudicial error in the giving of plaintiff's verdict directing instruction. In this regard her position is the instruction was improperly worded. While there is mention in her brief she regards the submission made as unsupported by the evidence, Mrs. Schott has failed to preserve any allegation of error which, if sustained, would require outright reversal of the judgment as to her. Due to the limited nature of her attack upon the instruction and the fact that damages are not an issue in this appeal, the facts may be stated in a less detailed fashion than might otherwise be required.
The collision involving the Schott and Kelley automobiles took place in the general area of the intersection of Lucas & Hunt Road and Eunice Avenue in St. Louis County. The day was cloudy and the streets were dry. Both of these automobiles were proceeding in the same direction on Lucas & Hunt approaching the Eunice Avenue intersection. There is a crest of a hill on Lucas & Hunt Road approximately 450 feet south of the Eunice Avenue intersection. Mrs. Schott was in the lead and had diminished her speed from 30 miles per hour at the crest of this hill so that when she was approximately 50 feet south of the intersection she was traveling at 20 miles per hour. Mrs. Kelley testified she first saw Mrs. Schott's automobile when it had reached this point. After she noticed the Schott automobile Mrs. Kelley took her eyes from it momentarily and glanced at the speedometer which showed she was traveling 40 miles per hour. The cars proceeded toward the intersection. Mrs. Kelley admitted she was approximately two and a half to three car lengths from the rear of the Schott automobile when she saw its brake lights go on and that she had not slowed her speed prior to that time. Mrs. Schott's testimony was that she was intending to make a righthand turn onto Eunice Avenue and was doing so at a speed of approximately 10 to 15 miles per hour when her car was struck from the rear by the Kelley automobile. Mrs. Schott's testimony also was that she did not see the Kelley car behind her at any time; that she was looking forward because she considered the intersection to be dangerous; and that at the time her automobile was struck from the rear the front end was approximately in the center of Eunice Avenue but the rear end was still partially on Lucas & Hunt Road. There is no dispute that after the collision between these two automobiles the Schott automobile went forward across Eunice Avenue, 20 to 24 feet wide at this point, up over a 6 to 8 inch step, across a 6 foot long concrete slab forming the floor of the front porch of the house, and into the front of the house. The distance from the curb of Eunice to the front porch was 25 feet. While damages are not an issue in this appeal it is pertinent to note the Schott automobile struck plaintiff's house with such force that the house was severely damaged.
The defendants are in dispute as to where the impact took place. Mrs. Schott places the impact right at the south curb line of Eunice while Mrs. Kelley contends the impact took place to the south of that line on Lucas & Hunt. The police officer who investigated the accident testified that when he arrived at the scene the Schott automobile was still partially inside of plaintiff's house and the Kelley automobile was on Lucas & Hunt Road a little south of the Eunice Avenue south curb line. He further testified the Kelley automobile left visual skid marks some 60 feet in length which started south of Eunice Avenue on Lucas & Hunt.
Plaintiff's verdict directing instruction reads as follows: "Your verdict must be for plaintiff and against Defendant Lillie Bogg Schott if you believe: First, defendant either: failed to signal her intention to turn, or slowed her automobile on the highway without first giving an adequate and timely warning of her intention to slow, or failed to have her automobile under such control as to be able to stop upon the first appearance of danger, and Second, defendant Lillie Bogg Schott's conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff.' M.A.I. 17.02 (modified.) Tendered by Plaintiff.'
The difficulty the parties had with this instruction is best illustrated by what took place as counsel argued the case. In his argument plaintiff's counsel set forth plaintiff's theory that Mrs. Schott stepped on the accelerator after being hit from behind. His argument was that under this instruction the jury should find Mrs. Schott was negligent for the reason that the 'first appearance of danger' was when she was struck from the rear and she should thereafter have stopped her automobile, and that had she had her automobile under such control as the instruction hypothesized she would have been able to have stopped it before running into the front of plaintiff's house.
Counsel for Mrs. Kelley took a completely opposite view of the same instruction and informed the jury that under the wording of that instruction they were not to consider whether Mrs. Schott could have been able to stop after being hit in the rear by Mrs. Kelley. He stated: Thereupon Mrs. Schott's counsel objected on the ground this was indeed the theory submitted by Instruction No. 3 and had been argued by plaintiff's counsel. The trial court overruled this objection. Later in that same argument Mrs. Kelley's counsel stated: '* * * And what is the theory as to Mrs. Schott? It is not what she could have done in the last thirty feet after she was hit, as was suggested to you; Here it is, and this is the Court's instruction; this is the law: We are talking about this automobile accident; my client's car striking the Cadillac. His Honor says, ...
To continue reading
Request your trial
-
Burrell v. Mayfair-Lennox Hotels, Inc., MAYFAIR-LENNOX
...as Brown v. St. L.P.S. Co., Mo., 421 S.W.2d 255; Cash v. Bolle, Mo., 423 S.W.2d 743; Gousetis v. Bange, Mo., 425 S.W.2d 91; Koehler v. Schott, Mo.App., 426 S.W.2d 677; Hunter v. Norton, Mo., 412 S.W.2d 163; Aubuchon v. LaPlant, Mo., 435 S.W.2d 648; Higgins v. Gosney, Mo., 435 S.W.2d 653; St......
-
Brittain v. Clark
...456 S.W.2d 608, 610; Coplin v. Hall, Mo.App., 449 S.W.2d 8, 10(1); Moore v. Huff, Mo.App., 429 S.W.2d 1, 6(3); and Koehler v. Schott, Mo.App., 426 S.W.2d 677, 680(1) concerning exercises over misspelling and the omission of words and phrases from prescribed MAI forms. The absence of key wor......
-
Ensor v. Hodgeson, 41534
...809, 811 (Mo.App.1978). The word "suddenly" is the key word in this disjunctive clause, taken from MAI 17.11, see Koehler v. Schott, 426 S.W.2d 677, 680 (Mo.App.1968), and submitting it to the jury without factual basis in the record was prejudicial error requiring reversal as to defendant ......
-
McIntyre v. Whited, 53818
... ... following specific submission that defendants 'drove on the wrong side of the road.' In Koehler v. Schott, Mo.App., 426 S.W.2d 677, 680(2--4), quoting the Gumm case, supra, it was said that 'It ... ...