Stonefield v. Flynn, 30645
| Decision Date | 13 June 1961 |
| Docket Number | No. 30645,30645 |
| Citation | 347 S.W.2d 472 |
| Parties | Louise A. STONEFIELD, Plaintiff-Respondent. v. William B. FLYNN, Jr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Richard M. Stout and Kent E. Karohl, St. Louis, John B. Gray, Clayton, for defendant-appellant.
Barnhart & Sommers, Don B. Sommers, David G. Dempsey, St. Louis, for plaintiff-respondent.
DOERNER, Commissioner.
Louise A. Stonefield filed this action to recover for personal injuries and damages in the sum of $35,000, alleged to have been sustained in a collision between the defendant's automobile and one operated by her. Defendant answered and counterclaimed for personal injuries and damages of $7,500. Plaintiff replied, and the issues being thus joined, were tried before the court and a jury. The result was a verdict and judgment in favor of plaintiff and against defendant for $14,535, and in favor of plaintiff on defendant's counterclaim. Defendant's timely after-trial motions being overruled, he brought this appeal.
In the jurisdictional statement in his brief defendant expresses some doubt as to the amount in dispute on this appeal, and to the jurisdiction of this court. The question raised is whether the amount for which defendant had counterclaimed should be added to the amount of plaintiff's judgment to determine the amount in dispute. If so, the total would exceed our jurisdictional limitation. We find the applicable rule to be as stated in Willibald Schaefer Co. v. Blanton Co., Mo.App., 264 S.W.2d 920, 923, that if the case is one where there can be no simultaneous recovery by the plaintiff on his claim and by the defendant on his counterclaim, then the amount in dispute for the purpose of determining appellate jurisdiction is the amount of the judgment. In this case plaintiff submitted her claim on instructions hypothesizing both primary and humanitarian negligence on the part of defendant; and defendant submitted his counterclaim on charges only of primary negligence. Except for the fact that two plaintiffs were involved, the identical situation prevailed in Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507, 508, 58 A.L.R.2d 80, where the court said: * * *' The underlying reason for the rule is that in such a situation the issues arising both on plaintiff's cause of action and on defendant's counterclaim are merged in and resolved by the verdict in favor of the prevailing party. Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. Since the verdict in this case was in favor of plaintiff for $14,535, it follows that appellate jurisdiction is in this court.
The collision which gave rise to this action occurred at the intersection of Washington Avenue and Thirteenth Street, in the City of St. Louis, on January 22, 1958, shortly before 4:30 P.M. Washington Avenue, an east-west street, was 60 feet wide, while Thirteenth Street, running north and south, was 40 feet in width. There were three lanes for westbound traffic on Washington, and the same number for eastbound. It was a clear day, and the streets were dry. On Thirteenth Street, south of the intersection, there was a stop sign located at the southern edge of the crosswalk. There was no stop sign for traffic moving westwardly on Washington Avenue.
Plaintiff testified that she drove her automobile north on Thirteenth Street to the stop sign and stopped. She then proceeded forward until the front bumper of her car was even with the south curb of Washington Avenue, and again came to a full stop. In that position she looked to the west, and the only vehicular traffic she saw was a bus stopped at the loading zone at Fourteenth Street. She then looked to her right and saw no moving traffic, between Twelfth and Thirteenth Streets, but she did observe two westbound buses stopped in the loading zone, situated halfway between Twelfth and Thirteenth Streets. She started forward, and when the front of her car reached the center of Washington (at which time she had reached a speed of 10 miles per hour) she observed a pedestrian then in the act of stepping off the curb at the northwest corner of the intersection, intending to walk to the east, in front of her car. Plaintiff stated that she took her foot off of the accelerator, which gradually reduced the speed of her car to about one mile per hour, and permitted the pedestrian to cross in front of her; and that when the front of her car was in the westbound curb lane she saw a blur to her right, immediately prior to the collision. According to plaintiff, the right headlight of defendant's car made an imprint on the right side of plaintiff's car, at the windshield post, and the left headlight made a mark on the back door of her vehicle. She testified that her automobile was knocked sideways about the length of the car, and that it came to rest on the northwest corner of the intersection. Plaintiff admitted that from the time she pulled away from the south curb of Washington she never again looked to her left or right, but only straight ahead.
Plaintiff produced an eyewitness to the occurrence, named Harry J. Slover, a taxicab driver, who testified that he was headed north on Thirteenth Street, and that he was immediately to the rear of plaintiff's car when she stopped at the south curb of Washington. He corroborated plaintiff's testimony that she looked to the west and east before proceeding into the intersection, and stated that plaintiff started up very slowly. As she did so, Slover pulled up, stopped, and then started to make a right turn to go east on Washington. About the time he was halfway around the corner he saw the defendant's car. According to Slover, westbound traffic on Washington was then stopped at Twelfth, and the defendant's automobile was the only westbound vehicle in the block between Thirteenth and Twelfth Streets. From that point on the witness vacillated in his testimony. Considerable discrepancies and inconsistencies were developed on cross-examination regarding the relative positions of the two automobiles at the time Slover first saw the defendant's car, their respective speeds, their movements up to the time of the collision, and the approximate place in the intersection where the impact occurred. These variances are perhaps understandable in the light of Slover's statements that 'Just about the time that I got glance of him (the defendant) I heard this crash,' and that '* * * I am poor judge of distance.' Taking the evidence most favorable to the plaintiff, as we are required, and separating the wheat from the chaff, the substance of Slover's testimony is that when the front end of plaintiff's automobile was about four feet past the center line of Washington Avenue the front end of defendant's car was then 30 feet away; that the left side of defendant's vehicle was eight feet north of the center line; that plaintiff's car was then traveling at a speed of five or six miles an hour and the defendant's automobile was going 35 to 40 miles an hour; that the front of defendant's car hit the right side of plaintiff's vehicle and pushed it towards the northwest corner of the intersection; and that the rear end of plaintiff's car was about two feet north of the center line of Washington when the impact occurred.
Defendant's testimony was that he turned on to Washington Avenue at Tenth Street, and proceeded west to Twelfth, where he stopped in obedience to a stop light showing red. When it changed to green he started up, in the middle westbound lane, as did another car to his left, which pulled slightly ahead of him. In that position they proceeded to the west, reaching a speed of 25 to 28 miles per hour. As defendant's car was about 15 or 16 feet from the intersection of Thirteenth Street, the brakes on the car to his left were applied, and screeched, and he applied his own brakes and swerved to his right. As he passed the front of the car to his left he saw plaintiff's automobile coming across, approximately 10 or 12 feet away. His car was on an angle, with the front just entering the curb lane, when the collision occurred. He stated that there was a medium amount of traffic on Washington at the time, and that the going-home rush was beginning. On cross-examination it was developed from the defendant that the distance from Thirteenth to Twelfth Street was '* * * about two hundred and some odd feet * * *' but less than three hundred feet--'Somewhere between two and three hundred feet.'
Defendant introduced in evidence two ordinances of the City of St. Louis which were in effect at the time of the collision. One designated Washington Avenue, between certain cross-streets, which included Thirteenth Street, as a 'major street.' The other ordinance provided that stop signs should be erected and maintained at every street intersecting with a lawfully designated major street, and further provided '* * * 'Every driver shall stop at such sign and yield the right of way to drivers and pedestrians upon such major streets and shall not proceed through the intersection or into the major street until safe to do so.' * * *' The same ordinance defined a driver as one in actual physical control of a vehicle.
There was no evidence introduced by either party as to the lawful maximum rate of speed on Washington Avenue, and the only evidence of the length of the block between Thirteenth and Twelfth Streets was that given by defendant, heretofore mentioned.
Defendant contends that certain repeated inflammatory and unfair tactics and comments of plaintiff's counsel, made possible, in part, by inconsistent and erroneous ...
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