Neil v. Mayer
| Decision Date | 20 February 1968 |
| Docket Number | No. 32534,32534 |
| Citation | 426 S.W.2d 711 |
| Parties | Howard NEIL, Plaintiff-Respondent, v. Joseph J. MAYER, Sr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, fred Leicht, Jr., St. Louis, for defendant-appellant.
Samuel A. Goldblatt, William R. Kirby, St. Louis, for plaintiff-respondent.
Plaintiff sued for $15,000 damages for personal injuries alleged to have been sustained as a result of an automobile collision. The jury returned a verdict for plaintiff in the sum of $12,000. Defendant appeals from the judgment rendered on the verdict.
The case was submitted to the jury on three specifications of negligence which were failure to keep a careful lookout, defendant was following plaintiff's vehicle too closely and on the so-called rear end collision doctrine. Defendant's principal assignments of error are that there was insufficient competent evidence to support two of the three submissions of negligence, to-wit, following too closely and the rear end collision doctrine.
The accident occurred on April 24, 1964, a little before 4 P.M. in the southbound lanes on Lemay Ferry Road some distance south of Lindbergh Road in St. Louis County. At the point of the accident Lemay Ferry Road consists of two southbound lanes and two northbound lanes. The weather at the time of the accident was clear, visibility good and the pavement was dry. South of Lindbergh on the west side of Lemay Ferry Road is located a 9--0--5 Liquor Store, a Texaco filling station and an entrance to the Famous Barr South County Store.
Plaintiff's version as to the collision was as follows: Plaintiff, who was driving a taxicab, received a call about 3:30 P.M. to pick up a package at the Famous Barr downtown store and deliver it to that company's south county store on Lemay Ferry Road. He picked up the package downtown and proceeded to Lemay Ferry Road. He travled south on Lemay Ferry Road driving in the right-hand lane next to the shoulder at a speed of approximately forty miles per hour. As he approached the traveled south on Lemay Ferry Road driving and as the traffic light was in his favor, he proceeded on across the intersection. He continued on south in the right-hand lane and slowed down to about 25 miles per hour looking for the driveway to turn into the Famous Barr South County Store when his vehicle was hit. Plaintiff testified that immediately prior to the accident there was no traffic in front of or alongside him, that he had not turned on his directional signal, that he had not looked in either of his rearview mirrors and did not see defendant's vehicle at any time prior to the accident or did not hear a horn sounded or brakes being applied.
Plaintiff testified that he was hit from the back and was thrown out of the right front door. He was dazed and next recalled sitting on the ground with his back to the bumper of his cab. He did not know where the vehicles came to rest after the collision and did not know what damage was done either to the taxicab or to defendant's vehicle.
Police Officer Caho, who was called to the scene of the accident, testified on behalf of plaintiff that when he arrived he observed a taxicab sitting in the northbound lane of Lemay Ferry Road and a Plymouth sitting sort of crossways in the southbound lane. That he observed loose mud and dirt on the pavement shaken loose by the impact located two feet north of the Texaco Filling Station driveway and three feet from the shoulder in the southbound lane next to the shoulder. That the location of this debris was about 500 to 550 feet south of the Lindbergh intersection and about 175 to 200 feet south of the 9--0--5 Liquor Store driveway. He also estimated that the driveway to the Famous Barr Store was about 300 feet south of the debris. The officer also testified that defendant stated to him that he had been driving in the curb lane, had glanced over to the right for traffic coming out of the driveway and when he looked back he saw the taxicab, slammed on his brakes but couldn't stop. Officer Caho identified two photographs showing damage to the taxicab and defendant's Plymouth. Edward Miles, an employee of the Black and White Cab Company, testified for plaintiff that he received a call about the accident and arrived at the scene within an hour. He identified pictures showing the damage to plaintiff's taxicab. These photographs identified by Officers Caho and Miles showed damage to the side of the left rear fender back of the left rear wheel of the taxicab. The pictures clearly did not show any damage to the rear end of the taxicab.
Plaintiff introduced portions of a deposition of defendant as admissions against interest which were to the effect that defendant was traveling south on Lemay Ferry Road in the outside lane. There were cars in front of him when they crossed Lindbergh. After he crossed Lindbergh he looked to the right at the 9--0--5 and when he looked back there was the taxicab in front of him. That the cab was two or three car lengths away when he applied his brakes. That when he first saw the cab it was traveling about 10 miles per hour straddling both lanes going east. That he was traveling about 40 miles per hour when he applied his brakes. That the left front of his car hit the left rear side of the taxicab. That he did not see the taxicab in front of him when he crossed Lindbergh and never saw it till he looked back after glancing to the right. That the cab must have come out from the side.
The only evidence presented on behalf of defendant was the testimony of defendant himself. Defendant testified that he was headed south on Lemay Ferry Road going home from work driving his Plymouth automobile. That as he approached the Lindbergh intersection he was traveling 40 to 45 miles per hour in the right-hand lane next to the shoulder and the traffic light was in his favor. There were cars ahead of him. He slowed down a little bit as he crossed the intersection and upon clearing the intersection he might have stepped up his speed a little. That he glanced over to the 9--0--5 Liquor Store to see if any cars were coming out and when he looked back ahead he saw the taxicab about two or three car lengths ahead of him heading east straddling the two southbound lanes with the back end of the cab in the outside lane and the front end in the inside lane. That he was traveling in the outside lane. That he applied his brakes and attempted to swerve. That the left front of his car hit the left side of the taxicab back of the rear left wheel. That his car did not strike any portion of the rear end of the taxicab. That the impact was hard causing the taxicab to spin completely around and come to rest in the northbound lanes heading south and his Plymouth coming to rest heading in a northeasterly direction across the southbound lanes.
Defendant's first assignment is that the court erred in giving Instruction No. 4 which was a verdict directing instruction for plaintiff submitting in the disjunctive defendant's failure to keep a careful...
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