Thaller v. Skinner & Kennedy Co.

Decision Date14 July 1958
Docket NumberNo. 46781,46781
Citation315 S.W.2d 124
PartiesJackie THALLER, Plaintiff-Respondent, v. SKINNER & KENNEDY COMPANY, a Corporation, Defendant-Appellant.
CourtMissouri Supreme Court

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, Byron G. Carpenter, Parks G. Carpenter, St. Louis, for appellant.

Marvin G. Marshall, St. Louis, William L. Mason, Jr., St. Louis, for respondent.

DALTON, Chief Justice.

Action for damages for personal injuries alleged to have been sustained by plaintiff on December 8, 1954, by reason of defendant's negligence, when defendant's 1953 International truck collided with the rear of plaintiff's 1949 Pontiac automobile. According to plaintiff, the right front portion of the truck struck the left rear fender and tail light of plaintiff's automobile when she stopped at an electric traffic signal at the intersection of Twelfth and Market Streets in the City of St. Louis. Verdict and judgment were for plaintiff for $10,000. Thereafter, after the plaintiff had entered a remittitur in the sum of $6500, the defendant's motion for new trial was overruled and a new judgment was entered for plaintiff for $3500. Defendant appealed to the St. Louis Court of Appeals. Respondent filed no brief in that court and the cause was submitted on the record and appellant's brief. The court reversed the judgment, holding that plaintiff failed to make a case for the jury. Thaller v. Skinner and Kennedy Co., Mo.App., 307 S.W.2d 734. On the order of this court, the cause has been transferred here and we shall review the record and determine the cause as if on original appeal to this court. Art. V, Sec. 10, Const. of Mo.1945, V.A.M.S.

The petition upon which the cause was tried charged that, after plaintiff's automobile was caused to stop at an electric stop signal on Market Street in St. Louis, it was violently struck in the rear by defendant's truck and that the defendant negligently and carelessly allowed its said truck to run into and collide with the rear end of plaintiff's automobile and thereby caused plaintiff to be injured.

Defendant, by its answer, admitted the fact of the collision and that the operator of the truck was its employee, but denied other allegations and charged that plaintiff's injuries, if any, were the result of her own carelessness and negligence directly contributing thereto.

After all of the evidence was in, the plaintiff submitted her cause to the jury on the following basis, to wit, that plaintiff brought her automobile to a stop 'in a normal and regular manner' pursuant to an electric signal at the intersection of Twelfth and Market; that after her automobile 'had remained stationary for some period of time' it was struck at the rear by defendant's truck and she was injured; and 'that on said occasion the defendant failed to exercise the highest degree of care to keep a careful watch and lookout ahead and laterally of its said truck and failed to timely stop its said truck, and that such failure directly caused the collision * * *,' and plaintiff's injuries.

Appellant assigns error on the court's action in refusing to direct a verdict for defendant at the close of all the evidence and in refusing to grant defendant's after trial motion to vacate the judgment and enter judgment for defendant. The grounds assigned in the motions were that the evidence wholly failed to show a claim on which relief could be granted and that plaintiff was guilty of contributory negligence as a matter of law barring recovery.

In determining the issues presented we will consider only the negligence submitted to the jury by plaintiff's instructions upon which the verdict was returned. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 92(5).

It is appellant's theory that plaintiff's testimony on cross-examination was in 'irreconcilable conflict', in essential respects, with her testimony on direct examination and that such testimony must be considered as final and controlling, because there was no explanation, retraction or qualification of the 'directly opposed' prior statements concerning facts essential to the cause of action submitted.

In determining the issue of submissibility, we must consider the evidence in a light favorable to plaintiff and give her the benefit of all favorable evidence and all favorable inferences therefrom. We shall disregard defendant's evidence, unless it aids the plaintiff's case and we shall also disregard all evidence as to matters affecting merely the credibility, weight and value of plaintiff's evidence, except as necessary to determine the issues presented here. Since the plaintiff is bound by her own personal testimony, we must review all of the essential portions of it, favorable and unfavorable, since appellant contends that her unfavorable testimony on cross-examination is controlling over her prior favorable testimony and defeats recovery.

On December 8, 1954, about 4:15 p. m., plaintiff was operating a 1949 Pontiac automobile south on Fifteenth Street in the City of St. Louis and she turned left on Market Street, where she proceeded eastward in the south traffic lane and adjacent to the curb lane on which cars were parked on the south side of Market Street. Market Street is a four lane trafficway with a lane on each side where cars may be parked. Plaintiff intended to go south on Twelfth Street. While proceeding on Fifteenth Street, plaintiff had killed her engine when the defendant's truck had pulled into the street in front of her and she had been required to stop to avoid hitting it. There was no conversation between the parties at the time, but plaintiff was slightly irritated by the incident. She then started her car 'and followed and turned left on Market.'

Cars were parked along the south side of Market Street from Fifteenth Street to within approximately one block of Twelfth Street. On direct examination plaintiff stated that she got into the curb lane approximately one block from Twelfth Street, immediately after passing the line of parked cars, and that, as she came to within 30 to 45 feet of the intersection, the traffic light turned from green to yellow and she stopped her automobile. On cross-examination plaintiff said that when she came to within 30 to 35 feet of the intersection, she pulled into the right hand curb lane, and that the light was in the process of turning from green to yellow as she did so. She also said she got into the curb lane 40 to 50 feet from Twelfth Street. Plaintiff traveled 20 or 25 miles per hour as she proceeded east on Market Street, but was going only 20 miles per hour when the light changed to yellow. At that time plaintiff already had her foot on the brake and she brought her car to a stop. There were pedestrians standing on the corner waiting to cross the street when the light changed. The weather was misty and foggy, and plaintiff had her parking lights and her windshield wipers operating.

Plaintiff's testimony further tended to show that, after the incident on Fifteenth Street, she had gotten ahead of defendant's truck ('after I turned onto Market, he was still in the other lanes, and I swung over into the right hand lane.') She was out in front of the truck and did not see it at the time she turned into the curb lane, but said: 'It was in the middle part of the street to my ability (sic) in the other traffic.' She was questioned about prior deposition testimony to the effect that she 'looked in the rear view mirror to see where he was at * * * To see whoever it was that cut me off back there in that truck before.' She answered: 'That is right, because he was in the middle lane of traffic where there were heavy traffic and I was in a sparsely traveled lane.' She further testified: 'Q. So as you approached Twelfth Street you did look back to see where that guy was that cut you off? A. Not exactly where he was at. I was looking to see where anyone that might be behind me was at.'

When plaintiff looked in her rear-view mirror before turning into the curb lane of Market Street, she saw no traffic behind her. She also said there wasn't anyone for her 'to cut into' in the curb lane. When plaintiff came to a complete stop, after she was in the curb lane, she again looked into her rear-view mirror and saw defendant's truck coming over into the curb lane. She testified: 'I glanced up in my mirror and I saw this truck coming over into the lane to make a right hand turn and I saw he couldn't stop because it was slippery.

'Q. And what happened then? A. Well, that is when he struck my left rear fender.

'Q. And with what part of his truck did he strike your fender? A. I think it was his right front.' (Italics ours.)

There was no damage to the truck. Plaintiff had not, to her knowledge, 'cut off' the truck and there wasn't anyone around when she turned into the curb lane.

While defendant's truck driver, a witness for defendant, testified that he turned from the right traffic lane of Market Street into the right turn or right curb lane after he passed the parked cars and a bus, he did not indicate how far the cars were from Twelfth Street, and while he testified that plaintiff pulled over from his left into the curb lane a truck and a half's length ahead of him, and stopped her automobile when the signal light turned caution, and stopped it cater-cornered on the corner, 'pointed southeast', still he said that his right front bumper struck the back of plaintiff's automobile and damaged 'the right back light and back fender.' Plaintiff, thereafter, offered in evidence a photograph of a 1949 Pontiac automobile showing a danaged left rear fender and defendant's counsel withdrew his prior objection to the identity of the exhibit and consented to its admission in evidence. Defendant's witness also testified that prior to the collision he was traveling 15 to 17 miles per hour, 'no faster', and that he did not apply his brakes until he was a truck's length from plaintiff's automobile. He said...

To continue reading

Request your trial
39 cases
  • Graham v. Conner
    • United States
    • Court of Appeal of Missouri (US)
    • January 30, 1967
    ...Health & Welfare, Mo.App., 375 S.W.2d 582, 592(25).9 Stradford v. Bluefeather, Mo., 384 S.W.2d 541, 543(3); Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 129(4); Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 82(4); Weathers v. Falstaff Brewing Corp., supra note 3, 403 S.W.2d at 66......
  • Hosford v. Clark
    • United States
    • Court of Appeal of Missouri (US)
    • July 24, 1962
    ...Prugh, 364 Mo. 557, 264 S.W.2d 358, 365(14); Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578, 581(4). See also Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 131(11). For the giving of defendant's instructions 6 and 7, the judgment must be set aside and the cause remanded for retr......
  • Hildreth v. Key, 7893
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1960
    ...then maintained a vigilant lookout ahead, certainly the continuous and inescapable duty to do so rested upon him. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 129(4); Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 82(4); Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 23(2). To satis......
  • Phillips v. Stockman
    • United States
    • Court of Appeal of Missouri (US)
    • November 15, 1961
    ...operation, including * * * the act of stopping en route for purposes reasonably associated with transit * * *.' Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 130(9); Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516(9); Karnes v. Ace Cab Co., Mo.App., 287 S.W.2d 37......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT