Melber v. Yourtee
| Decision Date | 14 July 1947 |
| Docket Number | 40004 |
| Parties | Bessie Melber, Appellant v. Gladys Yourtee, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of St. Louis County, Civil Appeal, Judge Raymond E. LaDriere
Reversed and Remanded
Plaintiff sued to recover $8,422 damages for personal injury verdict and judgment went for defendant and plaintiff appealed.
Error is assigned on the refusal of the court to direct a verdict for plaintiff and on defendant's instruction No. 3. Several grounds of negligence were alleged, but plaintiff went to the jury on the alleged failure of defendant to exercise the highest degree of care to keep a lookout ahead and laterally of the path of travel of the car which defendant was driving and which plaintiff alleges collided with the car in which plaintiff was riding. The answer, in effect, was a general denial and a plea of contributory negligence. The contributory negligence alleged was that plaintiff negligently and without protect permitted the car in which she was riding as a passenger to be driven on the street at a place not as close to the right hand side thereof as was practicable.
Sunday morning, October 7, 1945, plaintiff and her husband were out riding in their car, the husband driving. About 11 a.m., they were returning home and were traveling north on Grand Avenue St. Louis. Defendant and her mother, on their way to church, approached Grand Avenue in their car from the west on Magnolia Avenue, which is about 50 feet in width and which does not extend east of Grand. There was a stop sign on the south side of Magnolia at its junction with Grand, and as defendant approached Grand she, intending to turn left on Grand, pulled to the left and towards the center of Magnolia, about 25 or 30 feet from the north side of Magnolia and stopped. After stopping she looked south and saw on Grand and about 100 feet or more away, three or four cars traveling north. The car in which plaintiff was riding was among these three or four and probably was the one in front. Plaintiff's husband gave the speed of his car at 15 to 18 miles per hour. There are northbound and southbound street car tracts on Grand, and the distance from the east rail of the east street car track to the east side of Grand was estimated at about 20 feet. After defendant looked south she then looked north and without again looking south, drove into Grand and made a left turn. Before she got her car straightened out to the north the car in which plaintiff was riding, traveling astride the east rail of the east street car track, passed on the right of defendant's car and near thereto, and just before defendant got her car straightened out and while it was still on a slight angle defendant's right head light, in some way, bumped into the left rear fender of the car in which plaintiff was riding. Plaintiff's evidence was that the place of contact was 25 or 30 feet north of the north side of Magnolia, while defendant's evidence placed the point of contact a foot or two south of the north side of Magnolia.
According to the evidence of plaintiff's husband the impact made quite a dent in his left rear fender; bent it down against the tire, but according to defendant, the dent was slight and the inference from her evidence is that the car in which plaintiff was riding passed so near on the right that something contacted her right head light rim and pulled it off. Anyway, the rim came off and the glass fell to the street. And defendant said that the impact, whatever it was, did not cause a perceptible jar.
About a week prior to this Sunday morning plaintiff had fallen on the concrete floor of the basement of her home; had fractured her right arm between the wrist and elbow, and had returned from the hospital only a few days before the alleged car collision injury. And at the time of the collision plaintiff's right arm was in a metal cast and she carried the arm in a sling. And, according to defendant, plaintiff got out of her car, after the two cars had pulled over to the east side of Grand and stopped, and told defendant that she (plaintiff) was not hurt and in the afternoon of the same day, in a telephone conversation, told defendant that she (plaintiff) was not hurt. However, plaintiff denied making such statements.
Plaintiff's contention that the court should have directed a verdict for her is based on the evidence of defendant that she looked south only once before driving into Grand for the left turn. To support the contention that a verdict should have been directed plaintiff cites: Gubernick v. United Rys. Co., Mo.Sup., 217 S.W. 33; Rose v. Wells, Mo. App., 266 S.W. 1015; Robards v. Kansas City Public Service Co., 233 Mo.App. 962, 125 S.W.2d 891; Parkville Milling Co. v. Massman, Mo.App., 83 S.W.2d 128. These cases dealt with questions of contributory negligence, but not under facts such as here. And besides, in the present case, the jury could have found that there was no collision of consequence and that plaintiff was not injured in whatever collision there was. There was no error in refusing to direct a verdict for plaintiff.
Defendant's instruction No. 3 is termed a sole cause instruction. The instruction, in effect, advised the jury that it was the duty of one driving an automobile on a public highway to drive as close to the right hand side as is practicable, and then directed that "if you find and believe that the plaintiff's husband was driving and operating a motor vehicle on Grand Avneue at or near intersection with Magnolia avenue and that plaintiff was a passenger in said automobile and on the 7th day of October, 1945, the said automobile was involved in a collision with the defendant's automobile and if you further find and believe from the evidence that at the time of said collision the automobile in which plaintiff was riding was being operated at a place on said Grand Avenue that was not as close to the right hand side of said Grand Avenue was not practicable and while the negligence of plaintiff's husband is not attributable to plaintiff, yet if your further find and believe from the evidence that plaintiff saw and observed that said automobile was not being driven as close to right hand side of Grand Avenue as was practicable, if so, and if you further find and believe from the evidence that the driving of said automobile at a place on said Grand Avneue...
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