White v. Robertson-Drago Funeral Home, Inc., ROBERTSON-DRAGO

• Decision Date: 02 May 1977
• Docket Number: ROBERTSON-DRAGO,Nos. 9785 and 9786,s. 9785 and 9786
• Citation: 552 S.W.2d 47
• Parties: Georgia WHITE, Plaintiff-Appellant, v.FUNERAL HOME, INC., Defendant-Respondent, and Walter L. Friedhofen, Defendant. Georgia WHITE, Plaintiff-Respondent, v.FUNERAL HOME, INC., Defendant-Appellant, and Walter L. Friedhofen, Defendant.
• Court: Missouri Court of Appeals

Page 47

552 S.W.2d 47

Georgia WHITE, Plaintiff-Appellant, v. ROBERTSON-DRAGO FUNERAL HOME, INC., Defendant-Respondent, and Walter L. Friedhofen, Defendant.

Georgia WHITE, Plaintiff-Respondent, v. ROBERTSON-DRAGO FUNERAL HOME, INC., Defendant-Appellant, and Walter L. Friedhofen, Defendant.

Nos. 9785 and 9786.

Missouri Court of Appeals, Springfield District.

May 2, 1977.

Motion for Rehearing or to Transfer Denied May 20, 1977.

Application to Transfer Denied July 11, 1977.

Henry, Henry & Henry, West Plains, for plaintiff/appellant-respondent, Georgia White.

Russell G. Clark, David W. Ansley, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant/respondent-appellant, Robertson-Drago Funeral Home, Inc.

Before STONE, P. J., and TITUS and FLANIGAN, JJ.

STONE, Presiding Judge.

On the morning of March 8, 1971, Frank Hall, then 52 years of age, an employee of Robertson-Drago Funeral Home, Inc., of West Plains, Missouri, undertook to make an ambulance run from West Plains to Springfield for the purpose of transferring Linda White from West Plains Memorial Hospital to the Cox Medical Center in Springfield. Georgia White, plaintiff in the present action, also was a passenger in the Cadillac combination hearse-ambulance, her interest and function being that of caring for Linda White, her daughter-in-law, during the transfer. After a trip punctuated by two disturbing episodes of breathing complications on Linda's part, the ambulance proceeded north into and through Springfield on Glenstone Avenue. Hall testified that the ambulance's siren was "on" continuously from Battlefield Road near the south edge of the city to the point of accident, and that the "noon hour traffic" was "very heavy." There were no adverse weather or light conditions.

As Hall approached the signalized intersection of Glenstone Avenue and Chestnut Trafficway after coming off a viaduct a short distance south of that intersection, he was following the flow of traffic at perhaps 20 to 25 miles per hour (so he said); but, because a number of vehicles had stopped in the two northbound lanes ahead of him in obedience to the then red "stop" light for Glenstone traffic, Hall pulled to his far right, and thus to the east, to proceed around those stationary vehicles and through the intersection although the light still was red. ¹ In pursuing this course, the ambulance traveled five or six feet east of the vehicles halted behind a white "stop line" across Glenstone near the south edge of the intersection. Hall insisted that, as he neared the "stop line," he was looking to his left or to the west; and that, as soon as he had moved forward far enough to sight an automobile (subsequently identified as a 1969 Buick Skylark driven by defendant Friedhofen) eastbound on Chestnut, he went into a "hard brake" and skidded to the point of collision where the front end of the northbound ambulance struck the fore portion of the right side of the eastbound Friedhofen Buick. As a result of that collision, the front end of the eastbound Buick was turned around and came to rest headed in a general northwesterly direction, and the northbound ambulance (the heavier vehicle) continued forward to the northeast corner of the intersection where it struck and broke the signal standard. Georgia White, who had been sitting on a collapsible seat "in the back," was thrown about inside the ambulance and sustained injuries to her person.

Defendant Walter Friedhofen, the operator of the Buick Skylark, was in the process of proceeding east on Chestnut Trafficway straight through this intersection. Friedhofen had two passengers with him, one of whom was in the right front seat at the time. Those two, in an admitted state of intoxication developed in a downtown bar, were being delivered to their homes. Friedhofen, then 71 years of age, who offered the frequently-tendered concession that he had consumed a single beer at the same bar shortly before his assumption of the Good Samaritan role, had the green light at this intersection and testified he never saw the ambulance or its red light and never heard its siren. The evidence showed that, although there was a field on the southwest corner of Glenstone and Chestnut, vision across that area for northbound drivers on Glenstone and eastbound drivers on Chestnut was, from time to time and at certain points, materially obstructed by large billboard advertising signs and also, at the time of the accident under consideration, by northbound traffic on Glenstone approaching the signalized intersection and by several stationary vehicles waiting for the signal light to change.

At the conclusion of a two-day vigorously contested trial on April 11, 1974, the jury returned a unanimous verdict (a) finding the issues for plaintiff and against defendant Robertson-Drago and assessing plaintiff's damages at $28,836 and (b) finding the issues in favor of defendant Friedhofen. In due time, defendant Robertson-Drago filed its motion "for a new trial as to all parties, or in the alternative, to order a remittitur of the verdict rendered in favor of plaintiff and against this defendant." On the 84th day thereafter, to wit, on July 6, 1974, the court entered "the following order":

"July 6, 1974: Motion for New Trial having been argued and briefs submitted and said matter having been fully considered, the Motion for New Trial is overruled on the condition plaintiff remitt (sic) the sum of $3,836.00; otherwise Motion for New Trial filed by defendant sustained as...