Migneco v. Eckenfels
| Decision Date | 13 December 1965 |
| Docket Number | No. 51072,No. 2,51072,2 |
| Citation | 397 S.W.2d 682 |
| Parties | Carmello MIGNECO, Appellant, v. Fred E. ECKENFELS, Respondent |
| Court | Missouri Supreme Court |
Murphy & Roche, Byron A. Roche, St. Louis, for appellant.
Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for respondent.
This is an action for personal injuries sustained in an automobile collision. Mr. Eckenfels originally filed the suit against Mr. Migneco and the latter filed his counterclaim for personal injuries in the sum of $35,000. Thereafter, the original plaintiff's cause was dismissed upon stipulation and, upon motion and an order of court, the parties were 'redesignated' so as to make Migneco the plaintiff and Eckenfels the defendant. Such an order is somewhat unusual but, since the case has proceeded on that basis we shall acquiesce, considering Migneco as the plaintiff. The verdict was for defendant and plaintiff has appealed.
The collision occurred on September 30, 1961, at about 2:45 p. m. Plaintiff was driving a 1958 Ford north on Kingston Avenue in St. Louis County and defendant was driving a 1956 Buick south on the same street with this wife and her sister as passengers. Both were approaching (at varying distances) the 'T' intersection of Southampton Drive, a 26-foot wide street which turned off to the west. Kingston was 44 feet wide, having four eleven-foot lanes. By expert testimony and a plat it was shown that there was a crest on Kingston several hundred feet north of Southampton and that the downslope extended for another 100-200 feet to the south; there were stabilized shoulders on both sides of Kingston; its surface was asphaltic concrete. The day was overcast, but the witnesses disagreed as to whether the surface was damp, dry, or wet.
Plaintiff testified in substance: that the road was damp, but nearly dry; that he was driving north in the outside lane, having no intention of turning at Southampton; that he had been traveling at 35-40 miles an hour, but had slowed some because the brake lights of a car about 200 feet north came on; that he then saw defendant's Buick coming across the yellow center line 'right to me'; that he swung hard to his left and stopped at an angle, with most of his hood over the center line; that the Buick did not change its speed, did not swerve, and continued to come toward him 'kind of straight' until it hit the right side of his car, the impact being from the front door to the rear fender; that the Buick was about 150 feet away when he first saw it and about 100 feet away when he stopped; that he could not estimate its speed but it was 'fast'; that there was no other car in front of him except the one about 200 feet north. Plaintiff was rendered unconscious and suffered substantial injuries. Photographs in evidence show crushing damage to the right side of plaintiff's car from the windshield to the rear fender. Plaintiff testified also that the impact was in the northbound lane next to the center line; that he did not skid, and that he was not making a left turn.
Defendant Eckenfels testified: that it was drizzling and the road was wet; that he was driving at all times in the southbound curb lane; that plaintiff's car came out from behind a car which was stopped in the inner northbound lane at Southampton with its left-turn light on; that defendant was 'right north of Southampton' when he first saw plaintiff; that he was traveling between 30 and 35 miles an hour and applied his brakes, but could not say if he skidded; that at the time of the impact plaintiff's car was 'across both south bound lanes,' but was moving broadside toward him; that he did not change from the curb lane before the collision, or swerve; that he was still in the curb lane when the collision occurred, and he does not recall whether his car slowed up; he had no idea how far he traveled after he saw plaintiff, nor could he state his stopping distance. The impact occurred at or just south of the Southampton intersection and the cars came to rest on the west shoulder, entirely off the pavement. Defendant's car was admittedly in good mechanical condition prior to the collision.
A consulting engineer, Edward W. Bilhorn, prepared plats which were received in evidence, and testified from a considerable experience concerning stopping distances. His testimony was, in substance, that on a dry pavement a 1956 Buick could be stopped at 30 miles an hour on this street and on its maximum slope in 95-100 feet, and at 35 miles an hour in 120 feet; on a damp pavement, in 125 feet and 135-140 feet, respectively; on a wet pavement, in 132 and 175 feet, respectively; all of those figures included reaction times. He also testified that as the slope flattened out, as was the situation for about 150 feet north of Southampton, a car could be stopped in a shorter distance than stated.
A county policeman, Harry Wilde, testified that the cars were resting partly on a lawn and partly on the shoulder just south of Southampton; that defendant made an oral statement that 'I came over the hill and the car was sideways in the street in my lane, and I couldn't stop or avoid him'; that plaintiff stated: 'A car stopped in front of me, I slid on the pavement.' Defendant, in his deposition, admitted his statement to the policeman, but did not recall it at the trial; plaintiff denied, at the trial, making his. This witness also testified that when he got there (some time after the accident) it was raining, and that plaintiff was lying on the ground; that 'according to the report,' the debris was found in the center of the southbound lane which was next to the center line, and within the boundaries of Southampton (extended).
Walter J. Rutkowski, a witness who was driving some distance behind plaintiff, testified: that plaintiff was driving in the northbound lane nearest the center line; that plaintiff's car hesitated, then started to make a left turn; that the Buick was about 125 feet away at that time, but that he did not know the distance between them when the Ford started across the center line; that the witness pulled over to the right and stopped; that he saw no signal from the Ford, but that it continued to move slowly and that the collision occurred with the Ford traveling about five miles an hour. This witness apparently testified at first (and it is not entirely clear) that the impact occurred at the 'dividing line' between the two southbound lanes, 'just after he gets across that line'; later he said that the collision was in the curb lane. He also testified that the Buick was traveling at about 30 to 35 miles an hour when he first saw it; that the pavement was dry. In concluding, he stated that in his best judgment the Buick was 100-125 feet north of Southampton as the Ford started its left turn at the south curb line of that street, and that the Buick would then have been 125-150 feet north of the Ford; and, finally, he stated again that the collision occurred just as the Ford started across the dividing line between the two southbound lanes. This witness did not mention the presence of any other car.
It was developed that plaintiff was blind in his right eye. Defendant's wife, riding with him, testified that she felt an application of the brakes of the Buick, but not so 'forceful' as to cause her to turn around (she was talking to the back seat passenger) and look. There was other evidence which is not material to our issues here.
Plaintiff submitted his case solely on humanitarian negligence in failing to stop or swerve; his Instruction No. 3 hypothesized that as the cars were approaching each other, plaintiff turned his Ford to the left 'and across the center line * * * when defendant's Buick automobile was approximately 125 to 150 feet north,' that thereafter plaintiff became and was in a position of imminent peril, and that defendant saw or should have seen plaintiff in such position in time, etc., to have stopped or swerved and thus have avoided the collision. The verdict having been for the defendant, plaintiff's instruction is concededly not an issue on this appeal. We note here, however, that it did not hypothesize the precise point or traffic lane in which the impact occurred.
Plaintiff's single point on this appeal is the supposed error in giving defendant's Instruction No. 4, which was as follows: 'The Court instructs the jury that if you find and believe from the evidence that defendant, Fred Eckenfels, was driving his Buick automobile in a southwardly direction on Kingston Drive at or near its intersection with Southampton Avenue, and if you further find that defendant at all times drove his automobile in the right-hand or curb lane for southbound traffic and if you find that the collision occurred in the curb lane for southbound traffic then plaintiff is not entitled to recover and your verdict will be in favor of the defendant, Fred Eckenfels.'
As to that instruction, plaintiff says that the instruction gave the jury a 'roving commission,' did not hypothesize sufficient facts to constitute a defense, and that it created a false issue. Basically, the contention is that the instruction ignored the charge that defendant was negligent in failing to stop and thus did not converse the two elements of plaintiff's disjunctive submission; also, that it did not converse any essential factual element of plaintiff's submission, for he had not elected to hypothesize the precise lane in which the collision occurred, and was not required to do so. Plaintiff seems to concede that the instruction conversed the submission of a negligent failure to swerve, presumably because, if de...
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Martin v. Sherrell
...the benefit of defendant's evidence which is contrary to her own or at war with her fundamental theory of the case. Migneco v. Eckenfels, Mo., 397 S.W.2d 682, 686; Pijut v. St. Louis Public Service Co., Mo., 330 S.W.2d 747, 752; Fisher v. Gunn, Mo., 270 S.W.2d 869, 873--874; Pettus v. Dubma......
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