Wardenburg v. White, 35773
| Decision Date | 17 December 1974 |
| Docket Number | No. 35773,35773 |
| Citation | 518 S.W.2d 152 |
| Parties | Evelyn WARDENBURG, Plaintiff-Appellant, v. Marvin David WHITE, Defendant-Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Samuel Goldblatt, William R. Kirby, St. Louis, for plaintiff-appellant.
Carter, Brinker & Doyen, John G. Doyen, Clayton, for defendant-respondent.
Plaintiff, Evelyn Wardenburg, appeals from a judgment entered by the Circuit Court of St. Louis County, Missouri, on a jury verdict which found defendant not guilty of negligence. Her claim for personal injuries arose from an automobile collision between the car in which she was riding and the automobile being operated by defendant.
To convict the trial court of error, plaintiff contends that (1) the court wrongfully rejected her instruction which submitted a negligent failure of defendant to swerve so as to avoid the collision and (2) the court prejudiced her case by its improper conduct toward her attorney in the presence of the jury. We find no error in either regard and affirm the judgment.
The collision occurred at the intersection of Page Boulevard, an east-west thoroughfare, and Woodson Road, a north-south thoroughfare, in St. Louis County. At this intersection Page Boulevard is controlled by an electric light standard and has eight lanes of traffic--four for westbound traffic and four for eastbound traffic. Looking westwardly from Page, the furthermost south lane (next to the median) is used for left-turning southbound traffic onto Woodson Road. The other three lanes continue on westwardly; however, the curb lane could be used for right-turning northbound traffic onto Woodson Road. Facing north, Woodson also has four lanes of traffic; the westernmost lane for left-turning westbound traffic; the two center lanes for northbound traffic, and a curb lane used exclusively for right-turning eastbound traffic. On both streets each traffic lane is ten (10) feet wide.
On the day in question plaintiff was a passenger in a northbound automobile on Woodson Road being operated by her daughter. Although the daughter's speed was disputed by other witnesses, plaintiff's daughter testified that she was driving in the lane next to the curb lane at a speed of twenty miles per hour. As her car approached the intersection with Page Boulevard, the traffic control turned from green to amber. When the Wardenburg car reached the median line of Page, the traffic control turned red for northbound traffic. The collision occurred between the two vehicles in the curb lane for westbound traffic on Page. The front end of defendant's car damaged the right front door of the Wardenburg automobile.
Defendant was traveling west on Page in the curb lane. Prior to the collision he had stopped for a red light at Woodson for westbound traffic. To his immediate left (south) there was backed-up traffic in all three lanes, two for westbound traffic and one waiting to turn left southbound on Woodson Road. When the light turned green, defendant started up his car, accelerated up to 10 miles per hour and drove approximately the entire length of the easternmost lane of traffic on Woodson (estimated to have been 10 feet). According to the testimony, it was at this point that defendant first saw the Wardenburg car at the median line of Page Boulevard, traveling at speeds given at 20--25 miles per hour, 30--35 miles per hour. Defendant also testified that the curb lane to his right on Woodson was free and clear of traffic.
In this posture of the case, plaintiff argues that the court erred in refusing to submit her instruction to the jury on defendant's failure to swerve.
Defendant counters that (1) there was no substantial evidence offered by plaintiff to show that swerving would have been effective to avoid the collision, and (2) a swerve would have been ineffective to avoid the collision.
The issue between the two parties being so thusly defined, we, to determine whether or not plaintiff made a submissible case, review the evidence from a viewpoint most favorable to plaintiff and give plaintiff the benefit of every reasonable inference which the evidence tends to support, Hecker v. Schwartz, 426 S.W.2d 22, 26 (Mo.1968); Commerford v. Kreitler, 462 S.W.2d 726, 728 (Mo.1971). On the other hand, we disregard defendant's evidence unless it aids plaintiff's case, Watterson v. Portas, 466 S.W.2d 129, 130 (Mo.App.1971).
Unquestionably, as a part of her case, plaintiff is bound not only to show by her evidence that had defendant swerved, the collision could have been avoided, Middleman v. Complete Auto Transit, 486 S.W.2d 456, 461 (Mo.1972) but also to show, that the defendant had the means and ability to...
To continue reading
Request your trial
-
Kreutz v. Wolff
...is not in conflict with (their) theory of the case. . . . " Russell v. Russell, 540 S.W.2d 626, 631 (Mo.App.1976); Wardenburg v. White, 518 S.W.2d 152, 154 (Mo.App.1975). It is also axiomatic that lack of consideration and fraud in the inducement are affirmative defenses and appellants had ......
-
Depper v. Nakada
...tends to support . . . . On the other hand, we disregard defendant's evidence unless it aids plaintiff's case." Wardenburg v. White, 518 S.W.2d 152, 154(1) (Mo.App.1974). Guided by these standards we examine appellant's second allegation of error concerning sufficiency of the proof of facts......
-
Powell v. Watson
...would raise in decedent the duty to take evasive action only when the near collision was already occurring. Wardenburg v. White, 518 S.W.2d 152, 154--155(4) (Mo.App.1974). On the other hand, the skidmarks indicated decedent had undertaken precautionary action at least 3/4 second before the ......
-
Welsh v. Burlington Northern R. Co.
...this matter. Defendant's statement is not self-proving and cannot be accepted as a substitute for a record of proof. Wardenburg v. White, 518 S.W.2d 152, 155 (Mo.App.1974); Landers v. Smith, 379 S.W.2d 884, 887 Proof of the existence of ... any issue in a case cannot be bottomed on extraneo......