Nydegger v. Mason, 45821
| Citation | 315 S.W.2d 816 |
| Decision Date | 14 July 1958 |
| Docket Number | No. 2,No. 45821,45821,2 |
| Parties | Lucille NYDEGGER, Appellant, v. Mrs. Sally MASON, Respondent |
| Court | Missouri Supreme Court |
Byron A. Roche, St. Louis, Carter, Bull & Baer, St. Louis, of counsel, for plaintiff-appellant.
Chapman & Chapman and Thomas W. Chapman, St. Louis, for respondent.
Appeal by plaintiff, Lucille Nydegger, from an adverse judgment rendered by the Circuit Court of the City of St. Louis in conformity with the verdict of the jury in this, her action against Sally Mason for damages for personal injuries. The petition having prayed for the recovery of $42,700, that sum, in the circumstances just related, represents the 'amount in dispute' on this appeal; hence, under Art. V, Sec. 3, Const. of Mo. 1945, V.A.M.S., this court has jurisdiction.
The automobile collision out of which this action arises occurred June 25, 1954, at about 8:30 P.M. (daylight saving time) at or near the intersection of Newstead and Enright Avenues in the City of St. Louis. Inasmuch as the errors assigned on this appeal extend only to the form of the so-called 'contributory negligence' and 'sudden emergency' instructions on behalf of defendant (numbered) # 3 and # 7, respectively), an abbreviated outline of facts will suffice for the purpose of determining the issues presented.
Newstead runs north and south, Enright east and west. Plaintiff and defendant were traveling in opposite directions on Newstead, the plaintiff being southbound and the defendant northbound. Automobiles were parked along the east and west curbs of Newstead both north and south of the intersection, leaving two lanes open, one for southbound and the other for north-bound traffic.
The respective versions of the affair by plaintiff and defendant leave the precise point of collision in much doubt and uncertainty. Both parties were obviously quite inaccurate in estimating distances, to say nothing of the sharp and direct conflict in their testimony as to whose car was in motion at the time they collided.
Plaintiff testified that in proceeding south on Newstead she obeyed the 'boulevard stop' at Enright as she approached and got even with the sign at the northwest corner of the intersection, then continued southward into the intersection, traveling at 5 to 10 miles per hour. There was a line of traffic northbound. As she headed into the intersection she saw the defendant's car (which was then 'just across the intersection') headed north and traveling over the center line on the west (or wrong) side of Newstead; in other words, it was traveling north in the southbound lane. When she saw defendant's car thus traveling, she stopped and blew her horn, and after doing so, the other car (defendant's) struck hers; it did not change its course of travel at any time after she first saw it until the time of the collision--'it kept coming northbound.' Plaintiff's car was described as having been struck to the left of center on the front. Plaintiff was quite positive that her car was still partially in the intersection when struck, her estimate being that three-fourths of her car had cleared it. She denied that she had gotten through, or that she was actually 10 or 15 feet to the south of, the intersection when struck.
Plaintiff's case was submitted on two charges of primary negligence, i. e., in defendant having crossed to the left of the center line on Newstead in attempting to overtake and pass the vehicle ahead of her, and in operating her automobile without adequate and sufficient brakes.
Defendant's version was, in substance, this: That as she proceeded north on Newstead and when about 'midway between Delmar and Enright' (Delmar being one block south of Enright), in slowing for the boulevard stop at Enright, she noticed that she had no brake. (She had braked and stopped without any difficulty at the red light at Washington Avenue, the next street south of Delmar.) There was a string of cars proceeding northward ahead of her, which cars were slowing for the boulevard stop at Enright, and when she discovered the want of a foot brake she 'pulled out a little bit to the left and pulled on her emergency brake, cut off the ignition and stopped.' She saw the automobile of the plaintiff approaching as she, the defendant, stopped her car, which stop was somewhere between 10 and 20 feet south of Enright,' at which time plaintiff's car was 'across [to the north of ] Enright--whatever that width is * * * I imagine about 50 feet * * * plus the distance I was south of Enright.' She testified that plaintiff's car was then in motion, but she could not estimate its speed; she could see that the driver of it 'shot her eyes down to the floor board and she never looked up.' From the time defendant first saw the plaintiff until the time of the collision, 'stop." Defendant further testified that she attempted to sound her horn but couldn't because she had turned off the ignition.
On cross-examination defendant testified that she applied her foot brake when about in the middle of the block south of Enright, and that she traveled probably 20 feet after she first started to slow down until her car was brought to a halt; that when her car was stopped it was 10 to 20 feet south of the intersection, and the collision occurred at this point. She further testified that she stopped in such position that northbound cars were able to and did proceed to pass her to her right, and also there was a car coming southbound ahead of plaintiff's car, and that that car went by her 'because I wasn't that far out that traffic couldn't get by on the left * * * I was in the middle; they could pass me either way.' She also stated that when her car was stopped in the middle of the street it was facing north, In other words, it was 'cocked a little bit to the left.' Defendant turned off the ignition as she stopped and 'right then' saw the plaintiff, who was then 'north of Enright,' approaching. Defendant made no effort to start her automobile or to back it up. She estimated the interval of time elapsing between the moment she stopped her car and the time it took plaintiff to come across the intersection and run into the front end of her car as being 'a minute or two; it seemed an eternity.'
Defendant's instruction No. 3, of which plaintiff complains, reads as follows:
'The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence there was a time when the plaintiff was driving her car from the north on Newstead Avenue, when defendant driving a car northwardly on Newstead Avenue, saw the automobile of the plaintiff coming toward her from the north side of Enright Avenue and if you further find that thereafter defendant stopped her car, and if you further find that plaintiff in the exercise of the highest degree of care on her own part would, could and should have swerved or stopped her car and that by so swerving or stopping her car she would have avoided a collison with the automobile being drien by defendant, and that plaintiff failed to so swerve or stop her car, and if you further find that such failure on the part of the plaintiff was negligence, and that as a direct result thereof said collision occurred, or, if you...
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