Polster v. O'Hanlon
| Decision Date | 20 April 1954 |
| Docket Number | No. 28868,28868 |
| Citation | 267 S.W.2d 381 |
| Parties | POLSTER v. O'HANLON. |
| Court | Missouri Court of Appeals |
Joseph A. Kirkwood, St. Louis, for appellant.
Walther, Hecker, Walther & Barnard, George W. Cloyd, St. Louis, for respondent.
This is a negligence action wherein plaintiff, Armin H. Polster, sought to recover for damage to his automobile, which damage was alleged to have resulted from a collision between said automobile while being operated by plaintiff, and an automobile owned and operated by defendant, Arthur J. O'Hanlon. Defendant filed a counterclaim for damage to his automobile. The trial resulted in a verdict and judgment for defendant on plaintiff's cause of action, and for plaintiff on defendant's counterclaim. From said judgment, plaintiff has appealed.
The collision occurred on Southwest Avenue in the City of St. Louis at about 7:00 p. m. on November 5, 1951. Southwest Avenue runs in a northeasterly and southwesterly direction. Just prior to the accident plaintiff was proceeding southwestwardly as defendant approached from the southwest. There was a heavy snow falling at the time and there were patches of ice on the street. The accident happened on a viaduct over which Southwest Avenue crosses, about a block southwest of Kingshighway, a north and south street.
Plaintiff came to a stop at a stop light at Kingshighway. He was at the head of the traffic there and, when the light changed, his was the first car to cross Kingshighway. He then proceeded southwestwardly at a speed of fifteen or twenty miles per hour. There were no cars ahead or alongside of him, but several thirty to forty feet to his rear. Southwest Avenue at that point is a four-lane highway, about forty feet wide, with a black line down the center. Plaintiff proceeded about five feet to the right of the center line. When he reached the viaduct he noticed that the street was 'very glittery', which indicated to him the presence of ice. Plaintiff testified:
Plaintiff further testified that defendant's car continued and came to a stop in the south traffic lane, about forty-five or fifty feet from the point of impact, with its front facing toward the north. Plaintiff further testified that his car, when it stopped, was north of the center line and turned slightly toward the north. He stated that defendant's speed just prior to the collision was between thirty and thirty-five miles per hour. He further testified:
On cross-examination, plaintiff testified:
Defendant testified that on the occasion in question he was traveling northeastwardly at about twenty-five miles per hour. He stated that there were patches of ice on the viaduct, and that when he passed the 'hump' in the center of the viaduct he took his foot off the accelerator, and:
* * *
Defendant further testified that plaintiff's car came to rest about forty feet from the point of impact and on the north side of the street. Defendant's car spun around and came to rest some distance east of the point of impact.
Stanley Paulsen, a repairman, testified that the damage to defendant's car was on its right side toward the front end. Plaintiff testified that he paid $592.68 to have his car repaired. He also testified that the value of his car before the accident was $1600, and $1008 after the accident.
Appellant first complains of Instruction No. 7, given at the request of defendant. By said instruction the jury were advised that, with respect to plaintiff's cause of action, the burden of proof was upon the plaintiff to prove his case by the preponderance or greater weight of the credible evidence. The term 'preponderance of evidence' was then defined. No complaint is made as to the form of the instruction; nor is it claimed that it announced an erroneous principle of law. The only complaint is that it unduly emphasized plaintiff's burden when read in connection with Instruction No. 4.
Instruction No. 4 was a burden of proof instruction, and was given at plaintiff's request. By it the jury were instructed as to the burden of proof on the issues, both as to plaintiff's cause of action and defendant's counterclaim.
It appears from the record that plaintiff's motion for new trial contained no assignment of error, either general or specific, with reference to Instruction No. 7. For that reason, plaintiff's complaint, made for the first time in this court, should not be considered. See Supreme Court Rule 3.23, 42 V.A.M.S. But, even if properly preserved, the point made is without merit.
The giving of an instruction on the burden of proof which is a repetition of an instruction previously given is a matter which rests within the discretion of the trial court, which will not be interfered with, absent a clear abuse of such discretion, as where the repetition so unduly emphasizes the subject as to mislead, confuse, or impress the jury with the view that the court has serious doubt that the complaining party has met his burden. No such situation is presented by the record in this case. See Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449; State ex rel. Kansas City v. Shain, Mo.Sup., 177 S.W.2d 511; Ostmann v. Ostmann, Mo.Sup., 183 S.W.2d 133; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366.
Appellant next complains of Instruction No. 5, given at defendant's request. This instruction submitted contributory negligence based upon plaintiff's failure to swerve to the right after he saw or could have seen defendant in a position of peril. It is urged that the instruction was erroneous because there was no evidence in the record as to whether the street to the right of plaintiff's car was free and clear so that plaintiff could have swerved to the right. There is no merit to this contention.
The street in question was forty feet wide. Plaintiff was traveling from three to five feet north of the center line. He testified that there were no cars abreast of him as he proceeded from Kingshighway to the place of collision, and that the nearest cars to him on his side of the street were thirty or forty feet to the rear. According to the testimony of defendant his car skidded in front of plaintiff's car and stopped about five to seven feet across the center line of the street when plaintiff's car was about fifty feet away.
From the foregoing evidence, the jury could have reasonably found that there was ample space available between the two cars and the north side of the street within which to have swerved and to have avoided the collision.
One of the facts hypothesized in Instruction No. 5 was that defendant's car came to a stop, and by reason thereof was in a position of danger of collision. Defendant says that said requirement was improper because such finding could have no support in the credible evidence. In support of this contention it is urged that for the jury to find that defendant's car was stopped prior to the collision they would have to find that a car traveling twenty-five miles per hour on a street covered with ice came to a stop within approximately ten feet, without the application of brakes, which finding would be contrary to common observation and experience.
It appears from defendant's testimony that his...
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...Co., Mo., 254 S.W.2d 585, 594-595(24, 25); Sterrett v. Metropolitan St. Ry. Co., 225 Mo. 99, 123 S.W. 877, 879(1); Polster v. O'Hanlon, Mo.App., 267 S.W.2d 381, 385(4); Mitchell v. Russell, Mo.App., 170 S.W.2d 137, Nevertheless considering defendants' contentions to determine whether 'manif......
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...reference to Instruction No. 3. We are, therefore, precluded from considering the point raised. See Supreme Court Rule 3.23, 42 V.A.M.S. Polster v. O'Hanlon, Mo.App., 267 S.W.2d 381. Finding no error in the record, the judgment is ELLISON, P. J., LEEDY, J., and DEW, Special Judge, concur. ...
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