Schaefer v. Accardi
| Decision Date | 14 July 1958 |
| Docket Number | No. 2,No. 46454,46454,2 |
| Citation | 315 S.W.2d 230 |
| Parties | Arthur SCHAEFER, Appellant, v. Mike ACCARDI, Respondent |
| Court | Missouri Supreme Court |
Librach, Heller & Byrne, William P. Byrne, St. Louis, for appellant.
Lester F. Stephens, St. Louis, for respondent.
STOCKARD, Commissioner.
Appellant Arthur Schaefer, plaintiff below, has appealed from a judgment for defendant, entered pursuant to a jury verdict, in his suit for $22,500 damages resulting from an automobile collision. We shall refer to the parties as denominated in the trial court.
Plaintiff's version of the accident was as follows: On April 16, 1956, at about 11:45 o'clock in the morning he was operating his automobile eastwardly on Lindell Boulevard in the City of St. Louis. One hundred feet east of Sarah Street he stopped behind a car which was waiting to make a left turn into a driveway on the north side of the street, and while so stopped his automobile was struck from behind by defendant's automobile. He had been stopped 'about a minute or a minute and a half' when he glanced in his rear view mirror and saw defendant's automobile crossing Sarah Street and approaching at about thirty miles an hour. He watched defendant in his mirror as long as he could, but did not see him swerve and did not hear 'the sound of brakes being applied.' Defendant's automobile did not diminish its speed and at the time of the collision it was traveling thirty-five miles an hour. As a result of the collision the 'track' on the seat of plaintiff's automobile was broken, and the automobile was pushed forward about ten feet. Plaintiff immediately got out of his automobile and made a 'casual inspection' of his automobile. The bumper had been pushed in, the flash pan under the deck of the trunk was mashed in, and the left fender was buckled. He 'glanced' at defendant's automobile and saw that the bumper and grille were damaged. He had no conversation with defendant other than to ask him what happened, and 'he said he was skidding.'
Defendant's version of the accident was as follows: As he was driving eastward on Lindell at about twenty-five miles an hour he was following plaintiff's automobile with about forty feet separating them. He saw plaintiff stop behind a car waiting to make a left turn, and he applied his brakes and 'checked' the speed of his automobile. It had been raining, the streets were wet and the temperature was below freezing. Defendant's automobile 'slowed down but slipped' and 'touched Mr. Schaefer's car.' and at the time of the impact it was going about 'one or two miles an hour,' and was just 'barely moving.' There was very little damage to either automobile.
Although defendant presented no evidence concerning the injuries sustained by plaintiff, one of the most hotly contested issues in the trial was whether plaintiff sustained any injuries as the result of the accident, and if so, to what extent. Plaintiff's evidence pertaining to his injuries unquestionably was sufficient to make this a jury issue. However, in view of our subsequent discussion, we note now that the jury was not obligated to believe plaintiff's evidence. Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 133, 136.
Plaintiff first contends that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence for the reason that defendant 'admitted plaintiff's cause of action in the trial and defendant failed to sustain the burden of proof of his affirmative defense of contributory negligence.' Plaintiff argues that defendant 'admitted plaintiff's cause of action' because he 'admitted the fact of the collision' and he 'showed by his evidence that he was negligent in failing to have his automobile under control and gave no reason why he ran into the back end of automobile of the plaintiff but also admitted in his pleadings and throughout the course of the trial that plaintiff might have sustained some injuries.'
The fact that defendant admitted that a collision occurred does not of itself constitute an admission that he was negligent or that plaintiff was entitled to recover. Miller v. Wilson, Mo.App., 288 S.W. 997; McKinney v. Robbins, Mo.App., 273 S.W.2d 513. In addition, the fact that defendant may have presented no reason for the collision did not relieve plaintiff of his burden of proof as to the essential elements of his cause of action. However, defendant did give a reason for the collision; that his automobile slid because of the wet street and freezing temperature. Of course, the jury might have found that this reason constituted no justification, but the mere proof or admission that an automobile skidded or slid into collision with another does not necessarily establish negligence, Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, because, as stated in Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876, skidding or sliding of an automobile 'may and as a matter of experience does occur without fault.'
We are of the opinion that whether or not defendant was negligent under the circumstances disclosed by the evidence was a jury issue. But, assuming that defendant's act of colliding with plaintiff's automobile was negligence as a matter of law, as plaintiff contends, the trial court still properly refused plaintiff's request for an instruction directing a verdict for plaintiff at the conclusion of all the evidence. Plaintiff's statement that defendant admitted in his pleadings that plaintiff was injured is not correct. Defendant admitted only the allegations in plaintiff's petition that Lindell Boulevard was an open and public street in the City of St. Louis running in an east-west direction, and that on April 16, 1956 he was operating his automobile thereon in an easterly direction. He specifically denied all other allegations, including those pertaining to plaintiff's injuries. Plaintiff's statement that defendant admitted 'throughout the course of the trial' that plaintiff sustained injuries from the collision is equally without factual basis. The record discloses no such admission. Plaintiff did not request the direction of a verdict in his favor on the theory that he was entitled to only nominal damages, but on the theory that he was entitled to recover substantial damages for an alleged actual physical injury. The verdict-directing instruction, if it had been given, would have erroneously required the jury to render a verdict for plaintiff even though the jury believed plaintiff had suffered no injury as the result of the collision.
Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 133, 138. In this case plaintiff's proof of injury consisted of oral testimony which the jury was not required to believe, and notwithstanding plaintiff's contention to the contrary, defendant made no judicial admission that plaintiff sustained injuries as the result of the collision. Therefore, even though it could be said that defendant's conduct in colliding with plaintiff's automobile constituted negligence as a matter of law, and we are of the opinion that it did not, the trial court correctly refused to direct a verdict for plaintiff. Beezley v. Spiva, Mo.Sup., 313 S.W.2d 691, 695. Defendant did not make a judicial admission of the existence of a set of facts which established as a matter of law his liability to plaintiff. It was therefore immaterial that defendant failed to sustain the burden of proof of his affirmative defense of contributory negligence, which, incidentally, though pleaded was not submitted to the jury. The trial court correctly denied plaintiff's request for a directed verdict.
Plaintiff next contends that the trial court erred in giving instruction 5 which was as follows: 'The Court instructs the jury that if you find and believe from the credible evidence that the plaintiff was not injured on the occasion in question the plaintiff cannot recover herein and your verdict must be for the defendant.' Plaintiff contends that this instruction was not supported by the evidence, that it is a comment on the evidence, and that it instructs the jury to...
To continue reading
Request your trial
-
Graham v. Conner
...with respect to submissibility of the essential element of 'causation.' Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138(6); Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233. As with the first element, plaintiff assumed the burden (Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91, 94(4); Pro......
-
Byrd v. Brown
...1218, 1221-1223, 175 S.W.2d 814, 815-816[1, 2] (1943). Injury, which is an essential element of actionable negligence, Schaeffer v. Accardi, 315 S.W.2d 230, 234 (Mo.1958), is admitted. The only remaining questions are whether the evidence permits a reasonable inference that (a) the torch wa......
-
M. F. A. Co-op. Ass'n of Mansfield v. Murray, 8119
...Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 154(6); Holtzman v. Holtzman, Mo.App., 278 S.W.2d 1, 4(4-6). See also Schaefer v. Accardi, Mo., 315 S.W.2d 230, 233(7); Beezley v. Spiva, Mo., 313 S.W.2d 691, 695(6, 7).11 As we have seen, plaintiff also submitted its cause of action on what it app......
-
Stanziale v. Musick
...may not be inappropriate to add that, if this point were to be ruled on its merits, we would be impelled to deny it. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 232-233[1-7]; Beezley v. Spiva, Mo., 313 S.W.2d 691, Three of plaintiff's points relate to the introduction of evidence. In one of t......