Meitz v. Garrison

• Decision Date: 28 July 1969
• Docket Number: No. 19382.,19382.
• Citation: 413 F.2d 895
• Parties: Ruth MEITZ and George Meitz, Appellants, v. Roberta GARRISON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 895 (1969)

Ruth MEITZ and George Meitz, Appellants, v. Roberta GARRISON, Appellee.

No. 19382.

United States Court of Appeals Eighth Circuit.

July 28, 1969.

Vincent M. Igoe, St. Louis, Mo., for appellants.

Robert C. Ely, St. Louis, Mo., for appellee.

Before MEHAFFY and GIBSON, Circuit Judges, and MILLER, Senior District Judge.

MILLER, Senior District Judge.

On December 9, 1966, there was a collision on Goodfellow Boulevard in St. Louis, Missouri, near the entrance ramp onto Highway 70 between automobiles being driven by the parties. The plaintiffs appeal from a jury verdict and judgment for the defendant and from the trial court's refusal to grant a motion for judgment notwithstanding the verdict, or, in the alternative for a new trial. Jurisdiction is established by diversity of citizenship and the amount in controversy, and the case is controlled by Missouri law.

The points urged by plaintiffs for reversal are (1) that the verdict was against the weight of the evidence; (2) that the trial court erred in submitting the issue of plaintiff's contributory negligence to the jury; and (3) that the trial court erred in refusing plaintiffs' motion for directed verdict at the close of all the evidence.

We affirm for the reasons hereinafter stated.

We are not faced with the question whether to apply the Missouri or federal test of the sufficiency of the evidence to support a jury verdict, as there is no appreciable difference between them. Dick v. New York Life Ins. Co. (1959), 359 U.S. 437, 444-445, 79 S.Ct. 921, 926, 3 L.Ed.2d 935; Lewis v. Nelson (8 Cir. 1960), 277 F.2d 207.¹ In both, there must be substantial evidence to support the verdict. Brady v. Southern Ry. (1943), 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Reames v. St. Louis-San Francisco Ry. Co. (Mo.1962), 359 S.W.2d 230, 237. A verdict can be properly directed only when the evidence is such that, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict. Ozark Air Lines, Inc. v. Larimer (8 Cir. 1965), 352 F.2d 9; State Farm Mutual Auto Ins. Co. v. Jackson (8 Cir. 1965), 346 F.2d 484; Tharp v. Monsees (Mo.1959), 327 S.W. 2d 889. It is unquestionably a judicial function to determine whether the evidence is substantial as a matter of law, and warrants submission of the case to the jury. On appeal, in determining whether the standard was met, the evidence must be considered most favorably to the party against whom the motion for directed verdict was made, giving him the benefit of every favorable inference the evidence can justify. MacDonald Engineering Co. v. Hover (8 Cir. 1961), 290 F.2d 301; Frisby v. Olin Mathieson Chem. Corp. (8 Cir. 1960), 279 F.2d 939; Gibson v. Newhouse (Mo. 1966), 402 S.W.2d 324.

Goodfellow runs in a generally north and south direction, and Highway 70 runs generally east and west. The plaintiff Mrs. Meitz was driving north on Goodfellow in the curb lane. Highway 70 runs under Goodfellow, and drivers desiring to enter Highway 70 may leave Goodfellow by means of a connecting ramp. However, the plaintiff wished to continue north on Goodfellow. As she approached the intersection, the traffic light was red. Immediately to the left of the curb lane were three other northbound lanes, which were lined with traffic. There was a small automobile traveling in front of the plaintiff. Plaintiff came to a near stop about thirty feet from the intersection. When the traffic light on the northeast corner of Goodfellow turned green, the car immediately in front of the plaintiff proceeded into the intersection and turned right, onto the Highway 70 entrance ramp. Without stopping at the intersection line or looking to her left, plaintiff drove into the intersection, traveling at a speed of 5-8 miles per hour, and had gotten about half way across when her automobile was struck by the one driven by the defendant. No measurements showing the exact point of impact were introduced.

The defendant approached the intersection traveling south on Goodfellow in the left turn lane. She intended to turn left across the four northbound lanes and enter the Highway 70 ramp. Her grandfather and sister were in the front seat, and her mother and grandmother and a small boy were in the back seat. She had not driven through the intersection prior to the day of the collision. As she approached, the traffic light was red and she stopped. She saw a "Left turn yield" sign on the median about 20 feet from the intersection. The light turned green and back to red in regular sequence, but the defendant did not move due to the heavy northbound traffic. When the light turned green for the second time, she paused approximately five seconds and drove into the intersection. The curb lane was then empty and the cars in the three northbound lanes did not move until after the collision. After she had driven 15 or 20 feet into the intersection, her grandfather said: "Bobby, you have made a mistake." At that point she stopped, but a car had pulled forward directly behind her, and she could not back up. She was then approximately ten feet from the vehicles in the three northbound lanes. She then proceeded forward at ten or fifteen miles per hour and collided with the plaintiff. The defendant did not remember seeing an automobile come out of the curb lane prior to the plaintiff. Neither party remembered seeing the other until the moment of impact. The defendant testified that she had no opportunity to swerve her car. The front end of defendant's car struck the left front door of plaintiff's car and came to a stop. The plaintiff's car continued on for 7 or 8 feet.

At the conclusion of all the evidence, counsel for plaintiff moved for a directed verdict on the ground that there was no evidence of contributory negligence and that the evidence established negligence on the part of the defendant as a matter of law.

The plaintiff's motion for directed verdict and motion for judgment notwithstanding the verdict were properly denied, because, at the very least, defendant made a submissible issue on her affirmative defense of contributory negligence. The trial court's instruction on contributory negligence was therefore correct. The plaintiff relies principally on Zalle v. Underwood (Mo.1963), 372 S.W.2d 98, in support of her contention that the record is devoid of evidence from which the jury could have found that any contributory negligence on the part of the plaintiff was a proximate cause of the collision. In particular, plaintiff contends that there is no evidence indicating she could have stopped in time to avoid the collision, even if she had seen the defendant at the earliest possible moment. In Zalle, the court reversed a judgment for the defendant-counterclaimant on the ground that a contributory negligence instruction should not have been given on behalf of the plaintiff in absence of substantial evidence to support a finding that the defendant had the means and ability to have so acted that the collision would have been avoided. The court stated at 372 S.W.2d 102:

"Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance."

The plaintiff in Zalle made a left turn through a gap in a line of cars stopped for a red light in the center lane of a street and was hit by defendant who was coming up in the outside lane. The court pointed out that there was no evidence from which the jury could find that defendant could have seen the gap in the line of cars or plaintiff making a left turn in time to have avoided the accident. It might be added that the defendant in Zalle had no reason to expect the gap in the line of cars or that a motorist would make a turn through it, whereas Mrs. Meitz was certainly aware she was entering an intersection controlled by a traffic light.

While Zalle does set forth valuable...