Stemme v. Siedhoff
Citation | 427 S.W.2d 461 |
Decision Date | 08 April 1968 |
Docket Number | No. 52974,No. 2,52974,2 |
Parties | Margaret A. STEMME, a Minor, by her Father and Next Friend, Forestell W. Stemme, Appellant, v. William SIEDHOFF, Respondent |
Court | United States State Supreme Court of Missouri |
James E. Hullverson, Orville Richardson, Hullverson, Richardson & Hullverson, St. Louis, for plaintiff-appellant.
George E. Lee and Doris J. Banta, St. Louis, for defendants-respondents; Carter, Bull, Baer, Presberg & Lee, St. Louis, of counsel.
HENRY J. WESTHUES, Special Commissioner.
Margaret A. Stemme, a minor, by her next friend, Forestell W. Stemme, filed this suit in the Circuit Court of the City of St. Louis, Missouri, against William Siedhoff, asking for $65,000 as damages for personal injuries alleged to have been sustained as a result of the negligence of Siedhoff in operating a car in which she was a passenger.
A jury trial resulted in a verdict and judgment for the defendant. A motion for a new trial was overruled and plaintiff appealed from the judgment against her.
We shall refer to the parties as plaintiff and defendant.
The cause was submitted to a jury on the doctrine of res ipsa loquitur.
The principal point briefed by plaintiff is that the trial court erred in not directing a verdict for plaintiff.
From the following statement of facts as disclosed by the evidence, it becomes obvious that there is no merit in plaintiff's contention.
Witnesses in their evidence occasionally referred to plaintiff as Margo and to defendant at Bill. On the evening of July 5, 1965, plaintiff, defendant, Dona Speziale, and David Luedde, met at the home of Paula and Bob Wehrman in Maplewood. While there, at about 10:30, plaintiff, defendant, Dona, and David decided to go to the Mississippi River to see the Goldenrod Showboat. Plaintiff and defendant rode in one car and Dona and David in another. Defendant drove one car and David drove the other. Defendant and plaintiff were in the lead and David and Dona followed. They drove on Manchester Avenue to McCausland and then turned onto Expressway No. 40, then east toward the river. The second car was delayed by traffic at McCausland which caused the occupants to be out of sight of each other. Defendant testified that he drove east on 40 on the inside lane next to the median strip. At that point there are three lanes each way.
Dona Speziale, who at the time of trial was the wife of David Luedde, testified by deposition as to what she observed after entering Highway 40. Note her evidence.
'MR. HULLVERSON (Reading): Now, what happened after you came up to the exit from McCausland into Highway 40?
'A Well, we pulled up the ramp and Bill and Margo were right in front of us, and then they pulled onto the highway and we stayed behind. I presume there were cars, David says there were cars.
'Q Something that kept you from following immediately?
'A Yes. We couldn't go on right behind them. And then we came--there is a little dip and we came up over the hill--* * *
'Q Going east?
'A Going east. And we had lost--well, as we came up the hill we saw the smoke.
'Q Well now, would you just describe what it was you saw there?
'A Well, I don't know what it was.
We presumed it was dust from gravel or whatever. It was like a sheet, all across the road. We couldn't see through it. 'Q On the highway itself?
'A On the highway going completely across. It was thickest where Bill's car was in the median. Then as it progressed toward the further right lane, it was almost transparent, and we went through this, not knowing. And then David said, 'I wonder if it's Bill.' And we looked behind and saw the car with Margo slumping--
'Q Did you see the car as you passed through this smoke that you have described?
'A As we went through it--after we went through it, then David said, you know, 'I wonder if it's Bill.'
'Q Did you see a car then?
'Q And you pulled off into the median strip?
'A Yes.
'Q And what was the position of this MG at that time?
'A It was at an angle, down in the--head-first.
'Q In the median strip between the eastbound and the westbound lanes of Highway 40?
'A Yes. * * *
'Q Did you see that there was another car that was near them in the median strip?
'A Yes.
'Q Was there any indication that that car had been damaged?
'A Yes, definitely.
'Q Were the cars separated?
'A Yes.
'Q How far apart were they?
'A Oh, five feet, ten feet.
'Q Were they headed or faced parallel or in the same direction, or do you know?
Other evidence disclosed that the car with which defendant's car collided was unoccupied and had been parked in the median strip all that day. There was evidence that tire marks on the pavement of the inside lane of Highway 40 led from the pavement toward defendant's car.
Plaintiff and defendant sustained serious injuries. Plaintiff did not regain consciousness until four days later. Defendant's first recollection was when he was in a hospital.
Neither plaintiff nor defendant could remember anything that occurred after making the turn onto Highway 40 except that they were going east in the lane next to the median strip at a speed of about 45 miles per hour. Other evidence in the record is cumulative of what we have stated and did not tend to show what caused defendant's car to go onto the median strip. All witnesses agreed that nothing unusual occurred during the evening prior to the unfortunate accident.
The case was submitted to the jury by the following instruction:
'Your verdict must be for the plaintiff if you believe:
'First, defendant was the driver of the automobile, and
'Second, the automobile left the roadway onto the median strip, and 'Third, such movement of the automobile was the direct result of defendant's negligence, and
'Fourth, as a direct result of such negligence the plaintiff sustained damage.'
Defendant urges that the evidence was insufficient to support a verdict for plaintiff under the doctrine of res ipsa loquitur. Since there was a verdict for the defendant we need not determine this question, and we shall consider plaintiff's points.
Plaintiff contends she was entitled to a directed verdict and that the court erred in not giving the following instruction:
'Your verdict must be for the plaintiff if you believe:
'First, defendant drove off the traveled portion of the roadway onto the median strip, and
'Second, as a direct result of such conduct plaintiff sustained damage.'
Plaintiff says that defendant was guilty of negligence as a matter of law in violating Section 304.015(3) by entering the median strip. We do not agree. There are circumstances that justify driving onto a median strip. Such action may become necessary to avoid a collision or striking a person attempting to cross the pavement. Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, l.c. 528(4); George v. Wheeler, Mo.App., 404 S.W.2d 426, l.c. 430(6, 7) (8); Lincoln v. Railway Express Agency, Inc., Mo., 359 S.W.2d 759, l.c. 765(5--7), and cases there cited. The tire marks on the pavement and the fact that defendant's car turned to the left onto the median strip tends to indicate that defendant may have been confronted with an emergency. Instruction A was properly refused.
Plaintiff offered, and the trial court refused to give, an instruction marked B. This action was assigned as error. The instruction reads as follows:
'INSTRUCTION NO. B
'Your verdict must be for the plaintiff if you believe:
'First, defendant was the driver of the automobile, and
'Second, the automobile left the roadway onto the median strip, and
'Third, such movement of the automobile was a direct result of defendant's negligence, and you may infer that the defendant was negligent unless you find to the contrary from the evidence, and
'Fourth, as a direct result of such negligence the plaintiff sustained damage.'
It may be noted that instruction B reads the same as instruction 4 which was given, except that the following words were inserted: 'and you may infer that the defendant was negligent unless you find to the contrary from the evidence.' It is stated in the brief that the instruction is a modification of MAI 26.02(1). Plaintiff, contending that refusal of Instruction B was prejudicial error, states:
.'
We are of the opinion that counsel is unduly alarmed. The res ipsa doctrine still is in vogue and not eliminated by the...
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