Stevens v. Waldman

• Decision Date: 18 February 1964
• Docket Number: No. 31396,31396
• Citation: 375 S.W.2d 633
• Parties: Arthur M. STEVENS, (Plaintiff) Respondent, v. Wilton WALDMAN, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 633

375 S.W.2d 633

Arthur M. STEVENS, (Plaintiff) Respondent, v.Wilton WALDMAN, (Defendant) Appellant.

No. 31396.

St. Louis Court of Appeals, Missouri.

Feb. 18, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 12, 1964.

George F. Heege, III, Heege & Heege, Clayton, for appellant.

Byron A. Roche, John T. Murphy, Jr., Murphy & Roche, St. Louis, for respondent.

ANDERSON, Judge.

This is an action by Arthur M. Stevens against Wilton Waldman, to recover damages for personal injuries alleged to have been sustained on April 16, 1959, as a result of a collision at or near the intersection of East Taylor Avenue and North Broadway in the City of St. Louis, between an automobile being driven by plaintiff and a car owned and operated by the defendant.There was a verdict and judgment for $2500.00 in favor of plaintiff.Defendant has appealed.

North Broadway runs in a general northerly and southerly direction.East Taylor Avenue is an east and west street.Traffic at the intersection of these two streets is controlled by electric signals which permit a left turn upon a proper signal.That portion of East Taylor for eastbound traffic has three lanes.Each traffic lane is about ten feet wide.Except for the left turn lane, the traffic lanes are not separated by a white line.East Taylor is paved with asphalt.

At about 7:45 A.M. on April 16, 1959, and just prior to the accident, plaintiff was operating his 1952 Dodge Automobile eastwardly on East Taylor and was approaching North Broadway intending to make a left turn north onto North Broadway.He was traveling in the left turn lane, which was immediately south of the center line of the street.As he approached the intersection there were three or four automobiles, ahead of him, facing east.In the automobile with plaintiff, at the time, was a hitch-hiker whom he had picked up some time previously, about two miles from the scene of the accident.

The hitch-hiker was a young man, whose name plaintiff did not know.He had his lunch with him and sat alongside of plaintiff in the front seat of the car.He told plaintiff that he intended to go to Broadway and East Taylor.

Plaintiff had owned the Dodge car he was driving for about a year.The right door of the car was hinged toward the front of the car and opened out from the center post.The rear edge of this door did not fit properly; it stuck out about an inch.

Plaintiff brought his car to a stop in the left turn lane, behind three or four cars that were also stopped.There was an automobile being operated by Virginia Goss which was stopped to the right or south of plaintiff's car, and about even with it.All these cars were waiting for the traffic lights to change.

On direct examination plaintiff testified that the distance between the right side of his automobile and the left side of the Goss car was, 'I'd say five or six feet.'On cross-examination he stated that the distance was 'I would say between five and seven feet, somewhere in there.'

Defendant on the day of the accident was driving a 1950 Jaguar sports car.This car, according to defendant's testimony, is about fifteen feet long and sixty-four to sixty-four-and-one-half inches in width.The hub caps, or 'knock-off hubs', as they are referred to in the evidence, on this car extended one and one-half inches beyond the side lines of the car.The axles, through the hub for the front and rear wheels, are approximately the same length, and the 'knock-off hubs' are the same height off the ground.The greatest width of the car is at the front wrap-around bumper, which extends beyond the hub caps.The car was built lower than regular American automobiles of that time.The car from the doors tapered toward the rear.

After plaintiff had been stopped for a few seconds, defendant drove his car into the space between plaintiff's car and the car of Virginia Goss.Plaintiff felt two jars, one slightly heavier than the other.He looked around to see what had happened and saw the right door of his car crushed.The outer edge of the door was hooked onto the rear fender of defendant's car.

In a deposition introduced in evidence by plaintiff, the defendant testified that the right front door of plaintiff's car came in contact with the 'knock-off hub' of the left rear wheel of his car.He also testified that, after he heard the impact, his car was pushed toward the right and came in contact with the car on his right.This was the automobile driven by Virginia Goss.He stated there was no damage to his car from this contact.Virginia Goss testified there was damage to her car, for which she made a claim against defendant.The details with reference to this damage were not developed by the evidence.Her claim was not paid.

Plaintiff testified on cross-examination that except for the point where the right door was in contact with defendant's car, the distance separating the two cars was about eight to ten inches.When asked by defendant's counsel if the distance could have been so much as twelve to sixteen inches, plaintiff replied, 'It could have been.'

Plaintiff testified that five seconds before the impact the hitch-hiker was sitting in the car; that he never saw the hitch-hiker attempt to get out of the car.He further stated he did not know what the hitch-hiker was doing at the time of impact, because he was watching the traffic light across the street.A few minutes after the impact the hitch-hiker disappeared.Defendant testified he never saw the door of plaintiff's car open before the accident, nor did he see anybody get out of plaintiff's car.

Defendant testified that he was going very slowly, about five to six miles per hour, and brought his car to a stop within five or six feet after the impact.He also stated that there was a clearance of one foot between his car and plaintiff's car and the automobile of Virginia Goss, as he was passing between the two cars.

Defendant produced the police officer who had investigated the accident.The officer testified that plaintiff told him that the hitch-hiker was alighting from the car at the time of the accident.

As a result of the collision, plaintiff was thrown about in his car and according to his testimony sustained the injuries for which he brought this suit.

Appellant's first assignment of error is that the court erred in refusing to direct a verdict at the close of the whole case.In support of this assignment, it is urged that there was no substantial evidence to support the theory of negligence submitted.The only theory of negligence submitted to the jury was, that defendant attempted to drive his automobile in the space between plaintiff's car and the automobile of Mrs. Goss, when there was not sufficient room between said vehicles to do so without colliding with plaintiff's car.Under the authorities, we are limited to a determination as to whether the evidence is sufficient to support said assignment.We cannot examine the record to ascertain if plaintiff made a case under the other assignments of negligence pleaded.When plaintiff elected to submit his case solely upon the foregoing assignment of negligence, he abandoned all other allegations of negligence.Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91;Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316;Welch v. McNeely, Mo., 269 S.W.2d 871;Kirks v. Waller, Mo., 341 S.W.2d 860.And in passing on the question now before us, we will consider the evidence in the light most favorable to plaintiff, give plaintiff the benefit of all favorable inferences arising therefrom, and disregard defendant's evidence unless it aids plaintiff's case.Kirks v. Waller, Supra.

With the last mentioned rule in mind, we believe that it could reasonably be found from the evidence that there was a distance of five feet or sixty inches separating plaintiff's car from the vehicle on his right which was being operated by Mrs. Goss; that the width of the body of defendant's Jaguar was sixty-four and one-half inches; that the 'knock-off hubs' on said car extended one and one-half inches beyond the body of the car on each side thereof, making a total width of the car, sixty-seven and one-half inches.Under the foregoing state of facts it is clear that plaintiff made a case for the jury under the theory of negligence submitted.

But appellant contends that plaintiff was bound by the testimony of defendant, given in a deposition, which deposition was introduced in evidence by plaintiff.In that deposition, defendant stated that there was at least one foot clearance on either side of his automobile as he passed between plaintiff's car and the car of Mrs. Goss.But plaintiff is not bound by this testimony since it was contrary to plaintiff's own testimony.As heretofore stated, the rule is firmly established that in determining the sufficiency of the evidence to support a submission of negligence, plaintiff is entitled to the benefit of all favorable evidence and all favorable inferences therefrom.And this is true whether such evidence is introduced by plaintiff or defendant, except where evidence upon which he seeks to rely is contrary to plaintiff's own testimony, or is at war with the theory of his case.Anthony v. Morrow, Mo.App., 306 S.W.2d 581.He is only bound by testimony introduced by him where such testimony is the only evidence as to the fact in issue.In the case at bardefendant's testimony in said deposition tending to show the width of the space between plaintiff's car and that of Mrs. Goss, was not the only evidence in the case.Plaintiff testified as to the width of said space; defendant testified as to the width of his car, and from this evidence the jury could find that defendant's car could not be driven through that space without colliding with plaintiff's car.Plaintiff was not bound by the testimony of defendant from which a different inference could be drawn.

Appellant also argues that there was no direct...