Teachenor v. DePriest, 11340

• Decision Date: 28 April 1980
• Docket Number: No. 11340,11340
• Citation: 600 S.W.2d 122
• Parties: Carol Williams TEACHENOR, Plaintiff-Appellant, v. Mark Eugene DePRIEST and Marvin Benjamin Berry, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 122

600 S.W.2d 122

Carol Williams TEACHENOR, Plaintiff-Appellant, v. Mark Eugene DePRIEST and Marvin Benjamin Berry Defendants-Respondents.

No. 11340.

Missouri Court of Appeals, Southern District, Division Three.

April 28, 1980.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 23, 1980.

Ronald L. Little, Little, Million, Terando, Clarkson & Associates, Poplar Bluff, for plaintiff-appellant.

W. Robert Cope, Summers, Cope & Walsh, Edward F. Friedewald, Friedewald & Chadwick, Poplar Bluff, for defendants-respondents.

GREENE, Judge.

Plaintiff Carol Williams Teachenor sued defendants Mark Eugene DePriest and Marvin Benjamin Berry to recover money damages for personal injuries allegedly caused by defendants' negligence. The trial court, at the close of plaintiff's case, directed a verdict for Berry. The jury returned a verdict for DePriest.

On April 1, 1977, plaintiff was a passenger in an automobile driven by her brother, defendant Berry. Berry was traveling north on Highway 67, a four lane highway, in Poplar Bluff, Missouri. Defendant DePriest was the driver of a pickup truck that was also traveling north ahead of Berry on Highway 67. The automobiles collided at the intersection of Highway 67 and the driveway of Scott's Cafe. DePriest was attempting a right turn when the Berry automobile struck the right rear section of DePriest's pickup, resulting in personal injuries to plaintiff that required hospitalization.

Plaintiff raises two points of error on appeal, which are that the trial court erred in 1) sustaining Berry's motion for a directed verdict, as there was sufficient evidence to make a submissible case that Berry was negligent, and 2) sustaining an objection to plaintiff's reading portions of DePriest's deposition to the jury and rejecting an offer of proof as to statements made in the deposition.

WAS THERE SUFFICIENT EVIDENCE TO MAKE A SUBMISSIBLE CASE

AGAINST BERRY?

In her claim against Berry, plaintiff alleged that he a) failed to keep a proper lookout for the DePriest truck, b) drove his automobile at an excessive rate of speed, and c) negligently rearended DePriest.

Plaintiff's evidence was conflicting as to in which lane DePriest was traveling immediately prior to the collision. Plaintiff said that DePriest made his right turn from the inside, or improper lane, after two lane changes. DePriest said he made his turn from the outside lane, and that he did not change lanes. Berry, in conflicting testimony, first said DePriest went from the inside lane to the outside lane, and then back to the inside, and later said he went from "outside to the inside back to the outside." Berry said that he had been following DePriest for three or four blocks. Plaintiff's evidence was also conflicting as to whether DePriest's right turn signal was on prior to his turn. DePriest said that it was, Berry said that it was not, and plaintiff said she didn't see it. DePriest said that he was driving north on Highway 67, that he wanted to make a right turn into Scott's Cafe, and that he was in the outside lane. He said that he put his right turn signal on approximately 150 feet south of the point of his turn, that he made his turn from the outside lane, that his truck was struck from the rear by the Berry vehicle, and that his turn light indicator was still blinking after the accident. Plaintiff rested her case after the testimony of DePriest. At that time, a motion for directed verdict for defendant Berry was sustained.

A motion for directed verdict for a defendant should only be granted when no issues of fact remain for the jury to decide. Shephard v. Hunter, 508 S.W.2d 234, 237 (Mo.App.1974). The sustaining of such a motion, at the close of plaintiff's evidence, is a drastic action which should only be done when all of the plaintiff's evidence, and the reasonable inferences to be drawn therefrom, are so strongly against plaintiff that there is no room for reasonable minds to differ. McCarthy v. Wulff, 452 S.W.2d 164, 168 (Mo.1970); Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 814 (Mo.App.1975). Such is not the case here. Plaintiff was entitled to that part of each defendant's testimony that aided her in making a case against either or both of the co-defendants. Taylor v. St. Louis Public Service Co., 382 S.W.2d 411, 415 (Mo.App.1964)...