Osborn v. McBride
| Decision Date | 14 February 1966 |
| Docket Number | No. 2,No. 51480,51480,2 |
| Parties | Golda Mae OSBORN, Appellant, v. Tom McBRIDE, Jr., Respondent |
| Court | Missouri Supreme Court |
Donnelly & Donnelly, by Robert T. Donnelly, Lebanon, Morgan M. Moulder, Camdenton, for appellant.
Gerald H. Lowther, James K. Prewitt, Henry W. Westbrooke, Jr., Miller, Fairman, Sanford, Carr & Lowther, Springfield, for respondent.
This is an appeal by plaintiff from an adverse judgment entered following a jury verdict for defendant in a suit wherein plaintiff sought recovery of $50,000.
The issues raised by plaintiff on appeal are that the trial court erred in denying permission, following the voir dire examination, for plaintiff to amend her petition to allege violation of a speed ordinance of the City of Lebanon, and erred in the giving and refusing of instructions. Defendant asserts that any alleged trial errors are immaterial on the basis that plaintiff failed to make a submissible case, and a verdict for defendant should have been directed.
This suit arises out of a collision which occurred May 25, 1963, at approximately 12:30 p.m., at the intersection of Jefferson and Sixth Streets in Lebanon, Missouri. State Highway No. 5 follows Sixth Street in a westerly direction until it intersects with Jefferson Street, which also is State Highway No. 64. Sixth Street is 40 feet 4 inches wide at its intersection with Jefferson. Jefferson Street is 40 feet wide at the south side of the intersection, changing to 22 feet in width north of the intersection. An electric amber blinking caution light was suspended overhead at the center of the intersection and a stationary metal stop sign was posted for westbound traffic on Sixth Street at the northeast corner of the intersection. A similar stop sign for traffic traveling east on Sixth Street and entering the intersection was posted on Sixth Street at the southwest corner of the intersection.
Plaintiff was riding with her husband in the right front seat of their jointly owned 1956 Chevrolet as they drove westwardly on Sixth Street approaching the intersection with Jefferson Street. They had come from Camdenton to Lebanon on a shopping trip. With reference to the collision, plaintiff testified as follows: The Osborn car was traveling 5 to 10 miles per hour as it approached the intersection. The car stopped at the stop sign within 5 feet of the east edge of Jefferson Street. Both plaintiff and her husband (deceased at the time of trial) looked both to the right and to the left on Jefferson before proceeding into the intersection. At that time it was misting and the pavement was wet but not slick. Plaintiff did not see any car approaching from the south on Jefferson Street. She estimated she could see a block to the south on Jefferson. Plaintiff's husband started across the intersection and started to turn left and was over half way across the center of the intersection when their car was hit on the left side by a car driven by defendant. Plaintiff first saw defendant's automobile when it was not more than 15 to 25 feet away and 'it was going all of 25, I would say, and it seemed to me like more than that, we go an awful lick.' Defendant swerved to his left and his car was close to the middle of Jefferson when it struck the left side of the Osborn car, pushing it sideways toward the northwest corner of the intersection.
Sons of plaintiff, based on visits to the scene during the afternoon of the day of the collision, placed broken glass and debris on the intersection from about 1 1/2 feet east of the center line of Jefferson to a point 6 or 7 feet west of the center line, and told of skid marks of a car going sideways, extending 18 to 20 feet toward the northwest corner of the intersection. One son stated that the left side of the Osborn car was mashed in almost a foot and the frame was bent.
One of plaintiff's sons told of a conversation at the hospital on the following afternoon with defendant wherein the latter said he saw Osborn pulling into the intersection, whereupon defendant cut to the left, thinking Osborn would stop, but he kept on coming and they collided. The son testified that defendant further stated that had he cut to the rear of Osborn and to the right side of Jefferson, he either would have missed Osborn or there would have been a scraping of the fenders.
Defendant testified as follows: He was going not more than 25 miles per hour as he drove north on Jefferson toward the intersection with Sixth Street. It was raining sufficiently that he had his windshield wipers on and the pavement was wet and slick. He first saw the Osborn car when he was 65 to 70 feet south of the intersection. At that time Osborn was going 5 to 10 miles per hour and decreasing his speed as he approached the intersection. He either came to a complete stop or was barely rolling. Defendant then looked to the west side of the intersection, where another car was stopped, and he then glanced back and saw the Osborn car proceeding into the intersection in front of him. At that time the Osborn car was 35 to 40 feet away. Defendant immediately hit his brakes and tried to cut his wheels to the left to miss Osborn. His tires slid and the car did not slow very much. He swerved not over 2 feet and he hit the Osborn car broadside, a little bit more to the front than to the rear of the car. The left front of defendant's car was just about at the center line at the time of impact and at that time the front of the Osborn car was over the center line perhaps 2 feet. The impact pushed the Osborn car 4 to 6 feet sideways toward the northwest corner of the intersection.
A photographer testified that one could see south on Jefferson a distance of 1560 feet from a point 25 feet east of the east edge of the intersection, and could see further south when closer to the intersection. He gave the length of the first block south of the intersection as 480 feet. Defendant testified that at the east edge of the intersection one could see four or five blocks south on Jefferson.
An employee at a filling station located at the southeast corner of the intersection Jack Glendenning, testified that he was watching at the time of the collision; that the Osborn car did not make a complete stop at the stop sign; that when Osborn pulled on out into the intersection the defendant's car was coming north on Jefferson at 20 to 25 miles per hour; that defendant was 35 to 40 feet from the intersection when the Osborn car pulled out, and that it looked as though defendant tried to stop and was skidding possibly somewhat to the left. Another witness, Ray Vibbard, who was the driver of the second car behind Osborn as they drove west on Sixth Street, testified that defendant could not have been over 30 to 35 feet from the intersection when Osborn pulled out in front of him; that he did not believe defendant then was going over 25 miles per hour, and that he was going perhaps 10 to 12 miles per hour when he hit Osborn.
There was evidence that one and one-fourth blocks south of this intersection there was a metal 25 mile per hour sign posted on the east side of Jefferson, and that just north of the intersection on the east side of Jefferson there was a metal 35 mile per hour sign posted.
The rule is well established that trial errors are immeaterial if plaintiff failed to make a submissible case. Hoock v. S. S. Kresge Co., Mo., 230 S.W.2d 758; Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702. Our first inquiry,...
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