Myers v. Searcy
| Decision Date | 12 March 1962 |
| Docket Number | No. 1,No. 48720,48720,1 |
| Citation | 356 S.W.2d 59 |
| Parties | Bruce E. MYERS, Respondent, v. William L. SEARCY, Appellant |
| Court | Missouri Supreme Court |
Hilary A. Bush, Paul E. Vardeman, Jr., Johnson, Lucas, Bush & Vardeman, Kansas City, for appellant.
Robert I. Adelman, Kansas City, for respondent.
HOLMAN, Commissioner.
Plaintiff instituted this action in an effort to recover damages for personal injuries in the sum of $50,000. The trial resulted in a verdict for the defendant. Thereafter, the trial court entered an order sustaining plaintiff's motion for new trial on the sole ground that the court erred in giving Instruction No. 4 at the request of the defendant. Defendant has appealed from that order.
The collision in question occurred at about 6:30 a. m. on January 21, 1959 in the northeast quadrant of the intersection of 63rd and Benton Streets in Kansas City, Missouri. It was snowing at that time and the streets were snow-packed and rather slick. It was dark enough that all of the cars herein mentioned were using their lights. The cars involved were going eastwardly on 63rd which was 40 feet wide and slightly upgrade at that point. Plaintiff intended to make a left turn in order to go north on South Benton. His car was followed closely by a Chevrolet car driven by Robert Clay. Defendant's car was behind the cars of plaintiff and Clay. As the cars neared South Benton defendant pulled his car to the left and started to pass the other two cars. At that time plaintiff began his left turn into South Benton and defendant was unable to stop his car until after it had collided with the left door of plaintiff's automobile.
Plaintiff testified that his car was in excellent condition and was equipped with snow tires and traction drive; that his left-turn directional light had been operating for approximately a half block before he arrived at South Benton; that the left side of his car was approximately on the center line of 63rd Street and his car was being followed by a Chevrolet; that when his car arrived at the intersection he came almost to a dead stop in order to permit a bus and a car going westwardly to clear the intersection; that he then gave a left-turn hand signal and started his left turn; that when he had made about a third of his turn he saw approaching headlights in his outside rear-view mirror; that he then jammed on his brake and stopped but the approaching car collided with the center of the door of his car; that before starting his turn he had looked to the rear or glanced in the rear-view mirrors and had seen only the Chevrolet car behind him; that his automobile had proceeded from 2 1/2 to 4 feet north of the center line by the time he saw defendant's headlights and he then stopped in one foot; that the point of impact was on the center line of the street.
Robert Clay testified that he was driving behind plaintiff's car and had the chains on his car; that he was following at a slow pace and as the cars neared South Benton plaintiff's left-turn signal light was operating but he didn't see plaintiff give an arm signal; that he had not noticed defendant's car until it started around his car; that he didn't recall hearing a signal from defendant's car; that when the front end of defendant's car was even with his (Clary's) rear fender plaintiff started his left turn; that when defendant applied his brakes his car slid a little to the left; that defendant tried to stop but it was so slippery there wasn't much that could be done and he struck plaintiff's car in the northeast quadrant of the intersection; that although it was snowing a person could see at that time for a block or a block and a half; that he didn't believe plaintiff's car stopped at the intersection before starting its left turn; that defendant's car was going about 25 m. p. h. at the time he first noticed it.
Defendant testified that on the morning in question his car was equipped with snow tires and he also had on chains; that as he approached South Benton he saw the Clay and Myers cars ahead of him and thought they were stalled; that he didn't want to stop on the hill so he pulled to the left, sounded his horn, and started around them; that when the front of his car was even with the rear fender of the Clay car he saw plaintiff start his left turn and he (defendant) sounded his horn, put on his brake, and pulled to the left hoping to pass to the left of plaintiff's car, but plaintiff failed to slacken his speed at all and the cars collided; that at the time he started to pass, the cars of Clay and plaintiff were about six feet to the right of the center line and there wasn't sufficient room to safely pass them on the right; that plaintiff did not give an arm signal and the glass was up in his left door; that he was about 50 feet from plaintiff's car at the time it started the left turn and a person could see for a block at that time; that his car was going about 20 m. p. h. when he turned out to pass; that he saw the taillights on plaintiff's car but did not see any turn indicator flashing.
Plaintiff's case was submitted to the jury upon the hypothesized acts of defendant in turning his car to the left side of 63rd Street and attempting to pass plaintiff's car within 100 feet of the intersection. See Section 304.016, subd. 4(2) RSMo 1959, V.A.M.S. As we have indicated, the trial court granted a new trial because of error in giving Instruction No. 4 which reads as follows:
Plaintiff did not make any specific objections to Instruction No. 4 at the trial. Defendant has briefed the contention that the objections to this instruction contained in plaintiff's motion for new trial are not sufficiently specific to preserve anything for review. See S.C. Rules 70.02 and 79.03, V.A.M.R. Plaintiff, in his brief, has specified three respects in which he says the instruction was erroneous....
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