McCarthy v. Sebben
| Decision Date | 11 January 1960 |
| Docket Number | No. 47153,No. 1,47153,1 |
| Citation | 331 S.W.2d 601 |
| Parties | Edward M. McCARTHY, Plaintiff-Respondent, v. Leo SEBBEN and Jack W. Hall, Defendants-Appellants |
| Court | Missouri Supreme Court |
Luke, Cunliff & Wilson, Robert R. Schwarz, St. Louis, for appellant Leo Sebben.
Schwartz & James, Harry M. James, St. Louis, for appellant Jack W. Hall, Joseph Nessenfeld, St. Louis, of counsel.
Kappel & Neill, Walter S. Berkman, St. Louis, for respondent.
On the morning of April 20, 1956, at about ten o'clock, plaintiff engaged a taxicab at St. Louis Municipal Airport, St. Louis County, Missouri, to take him to the Civil Courts Building in St. Louis, Missouri. While traveling easterly on Natural Bridge Road, the cab collided with a car at the intersection of Natural Bridge and Woodson Roads. To recover damages for the injuries received in this collision, plaintiff McCarthy sued Leo Sebben, the cab driver, and Jack W. Hall, the operator of the other car involved in the collision. A trial resulted in a verdict in plaintiff's favor in the sum of $8,000 against both defendants. The trial court overruled the separate motions for new trial filed by defendants and they appealed from the judgment entered.
We shall refer to plaintiff as McCarthy, to the defendant cab driver as Sebben, and to the other defendant as Hall.
On this appeal, Hall complains of instruction No. 3 submitting plaintiff's case to the jury; of instructions No. 5 and No. 6, which authorized a verdict for Sebben if the jury found that Hall's negligence was the sole cause of the collision; and that the verdict is excessive. He does not say that the evidence was insufficient on the question of his negligence.
Sebben briefed four points: that the court should have directed a verdict in his favor; that instruction No. 1, submitting the case to the jury, was erroneous; that instruction No. 7, a sole cause instruction, was erroneous; and that the trial court erred in permitting plaintiff's attorney to comment on the failure of defendants to produce Dr. Mueller as a witness.
Before disposing of these points, we shall make a general statement of the case and thereafter we shall make specific reference to evidence as may be necessary in connection with points briefed.
Natural Bridge Road is a four-lane highway with two lanes for eastbound traffic and two lanes for westbound traffic. There is a parkway, 28 feet in width, dividing the east and west traffic lanes with a breakthrough in the parkway at Woodson Road which runs in a southerly direction from Natural Bridge Road. Woodson Road does not extend to the north, thus forming a 'T' intersection. Natural Bridge runs slightly in a southeasterly and northwesterly direction. Woodson Road, as it nears Natural Bridge, is divided into three separate lanes. The center, a double lane, enters Natural Bridge to permit traffic to travel onto the west on Natural Bridge and for traffic turning south from Natural Bridge onto Woodson. One lane curves to the east and connects with Natural Bridge for eastbound traffic and a lane on the west side is for traffic coming south off the eastbound lane of Naturla Bridge Road. There is a third lane on the south side of the eastbound lanes of Natural Bridge which extends east and west from Woodson Road and gradually feathers into the main roadway of Natural Bridge. There are flasher warning signals for all traffic on Natural Bridge and no stop signs are involved in the present lawsuit.
Before the collision, Sebben was driving east on Natural Bridge in the lane next to the parkway and Hall was driving west on Natural Bridge in the lane next to the parkway. Hall made a left turn into Woodson Road in the westerly half of the breakthrough intending to drive south on Woodson Road. While Hall was driving across the eastbound lanes of Natural Bridge, the Sebben cab struck Hall's car broadside. There is a dispute in the evidence as to whether Hall stopped before he entered the eastbound lanes.
We shall direct our attention to points briefed by Hall. His first point is that the court erred in giving plaintiff's requested instruction No. 3. He says this instruction 'authorized the jury to evolve any theory of negligence whatever in order to find against defendant Hall without any effective guide from the Court.' We find no merit in this contention. The instruction submitted to the jury the question of Hall's negligence in the following manner: '* * * and if you further find and believe from the evidence that as he was entering the Eastbound traffic lanes on Natural Bridge Road, the defendant Hall failed to keep and maintain a careful watch and lookout for Eastbound traffic on Natural Bridge Road; * * *.' It is evident that the jury was not given a roving commission to find for plaintiff but authorized a verdict on failure to keep a lookout. Defendant Hall further says that the instruction authorized a finding on a charge of negligence not pleaded. There is no merit in this point. Note what is stated in the petition: 'That defendant Hall was careless and negligent as follows: (a) in failing to keep and maintain a careful watch and lookout ahead and laterally.' All we need to say about the alleged 'sole cause' instructions, No. 5 and No. 6, of which Hall complains, is that the jury found against both defendants and therefore these instructions did not prejudice Hall's rights.
Hall complains that the verdict is excessive. The complaint is that plaintiff's instruction authorized $318.50 for expense of X rays and medical attention which was not warranted by the evidence; further, that the instruction authorized a recovery of $945 for loss of earnings which was in excess of the amount of loss sustained and as pleaded. We find merit in both contentions. Plaintiff's evidence was that he had been sent by his attorney to Dr. Bowdern for an examination; that Dr. Bowdern sent him to Dr. Peden to have X rays taken; that the bill from Dr. Peden was for $25 for the X rays and that Dr. Bowdern's bill was for $50. Plaintiff offered no evidence that the items were necessary medical expenses. These items totaling $75 should be disallowed. We find that the item of $945 authorized by the instruction for loss of wages is excessive by $405. This is for the reason that the excess mentioned is at most speculative. Plaintiff testified that his salary was $675 per month; that he lost 24 days of work. He further testified that he was required to work 12 hours per day but for each such day, he was credited with an additional 3/4 of a day which he could accumulate. It was his theory that by losing 24 days, he also lost 18 days which he could have stored up during that time, so that he actually lost 42 days' work. The evidence was that if plaintiff had accumulated 18 days, he could have taken the 18 days off from work without losing any salary. Whether this would ever occur is speculative. Plaintiff did receive his regular salary during his 24 days' absence. This was because he had accumulated that amount of time before he was injured. The total excess authorized by the instruction was $405. However, this error and the one concerning the X rays and the medical bill may be taken care of by remittitur.
Hall further says that the verdict, aside from the items above mentioned, is grossly excessive. To this we cannot agree. Plaintiff, at the time he was injured, was 54 years old. He had been for a number of years, and was at that time, a diesel engineer on a towboat (the Emily Jean) operating on the Mississippi River. He testified that he had been in good health and a strong man prior to the injury. Plaintiff's injuries consisted of a skinned nose requiring 15 stitches; his lips and face were cut and bruised; his left shoulder and his right knee and leg were bruised and swollen. Dr. Richard A. Sutter testified that plaintiff will suffer pain in the right ankle permanently and that he has an unstable knee with limited motion. These limitations are, according to plaintiff and Dr. Sutter, a material handicap in the performance of plaintiff's duties and will continue to cause discomfort and pain. Viewing the evidence of plaintiff and the doctor who treated him, we are not prepared to say that the jury's verdict is excessive. Unless a jury verdict is grossly excessive or inadequate, an appellate court should not set aside or disturb the verdict.
We shall now examine the points briefed by Sebben. His first point is that the court should have directed a verdict in his favor and the second pertains to the correctness of instruction No. 1 which authorized a verdict for plaintiff. We shall treat these questions together. The instruction complained of (omitting the concluding portion thereof) reads: 'The Court instructs the jury that if you find and...
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