Zalle v. Underwood

• Citation: 372 S.W.2d 98
• Decision Date: 11 November 1963
• Docket Number: No. 1,No. 49689,49689,1
• Parties: Helen C. ZALLE, Respondent, v. Melvin C. UNDERWOOD, Appellant
• Court: Missouri Supreme Court

Page 98

372 S.W.2d 98

Helen C. ZALLE, Respondent, v. Melvin C. UNDERWOOD, Appellant.

No. 49689.

Supreme Court of Missouri, Division No. 1.

Nov. 11, 1963.

Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Henry J. Fredericks and Frank J. Lane, Jr., St. Louis, for (plaintiff) respondent.

Guilfoil, Caruthers, Symington & Montrey, John P. Montrey and Jerome F. Raskas, St. Louis, for (defendant) appellant.

HOUSER, Commissioner.

This litigation arose out of a collision between two automobiles on Lemay Ferry Road in St. Louis County. Plaintiff Helen C. Zalle brought an action for personal injuries, loss of wages, and property damage against Melvin C. Underwood, who filed a counterclaim for the same items of damage. At the close of plaintiff's evidence she dismissed her petition with prejudice, and the case proceeded against plaintiff on defendant's counterclaim. A trial jury returned a verdict for plaintiff on defendant's counterclaim, and defendant appealed. Defendant having prayed for $18,500 in his counterclaim, we have jurisdiction.

Lemay Ferry Road in St. Louis County is a four-lane highway, running generally north and south, with a slight incline to the north at the point of collision. The collision occurred in the northbound lane of traffic closest to the east curb of Lemay Ferry Road, in front of a Steak & Shake restaurant. Two driveways, separated by a distance of approximately 80 feet, lead from Lemay Ferry Road into the Steak & Shake property. The collision occurred in front of the northernmost of the two driveways. At the point of collision the speed limit for automobile traffic was 35 miles per hour. At the southern edge of the Steak & Shake property is Catskill Street, which intersects Lemay Ferry Road. South of Catskill, on the east side of the highway, there is a Fleet service station. At the northern edge of the Steak & Shake property is Point Street, which intersects Lemay Ferry Road. North of Point and fronting on the east side of Lemay Ferry Road is a Star service station. One block north of Point Street, at the intersection of Telegraph Road with Lemay Ferry Road, there is an electric stop sign. On the date of the collision the weather was clear and the streets were dry. Neither driver saw the other automobile prior to the collision.

Mrs. Zalle testified that she had been driving south of Lemay Ferry Road, in the lane closest to the center, with her left turn signal on, intending to turn east on Point Street, but she went too far and passed the Point Street intersection. She then intended to make a left turn into the north driveway leading into the Steak & Shake property, re-enter Lemay Ferry Road, go north to Point Street, and there turn right into Point. Prior to making her left-hand turn toward the Steak & Shake driveway, with her left-turn blinker turned on, she brought her automobile to a stop in the southbound lane in Lemay Ferry Road closest to the center. She then continued south in the same traffic lane to a point on Lemay Ferry Road opposite the north driveway of the Steak & Shake property, where she stopped a second time. While stopped she noticed a line of northbound traffic in the northbound lane nearest the center line, extending south from the electric signal at the Telegraph Road intersection to a point south of the Steak & Shake property, as far as she could see. A northbound blue station wagon, in the northbound lane nearest the center line, stopped south of the north driveway of Steak & Shake. Its driver motioned for her to make a left turn and cross in front of him; signaled for her 'to go on through.' There was an opening in that northbound line of traffic; a 'big space' between the station wagon and the next car in front of the station wagon. She then turned left in front of the station wagon and stopped a third time, with no part of her automobile extending into the northbound lane of traffic closest to the east curb of Lemay Ferry Road. She then looked to her right, to the south into the northbound lane, 'to make sure there weren't any cars coming.' From her position a few feet north of the north driveway of Steak & Shake she saw no traffic in that lane, at least as far south as the south driveway of Steak & Shake. She could see 'quite a ways down--I couldn't say the distance. I could see pretty clearly.' Then she proceeded to complete her turn by entering the northbound lane closest to the east curb and as soon as her automobile entered that lane the collision with defendant's automobile occurred--'immediately' as she 'went out.' She did not see the automobile of Mr. Underwood before the collision occurred, or hear a horn of any kind. She did not sound a horn.

Mr. Underwood testified that he was operating his automobile north in the northbound lane of traffic closest to the east curb of Lemay Ferry Road, traveling between 30 and 40 miles an hour as he passed Catskill Street. There were two cars in front of Mr. Underwood's car in the same lane, but they were some distance away, stopped at the stop sign at Telegraph Road. He observed the line of traffic in the lane to his left, which line extended from the electric stop sign above mentioned south to the south entrance to the Steak & Shake property. This line of traffic was 'in his view' and he knew it was stopped. He could not 'truthfully' say whether he noticed a gap or space in the line of traffic at the point where the collision occurred. He had a 'vague idea of a small opening' but was not aware of any gaps; did not actually see a gap; never actually 'noticed this gap * * * until the impact occurred.' Immediately before and at the time of the collision he was watching ahead--'looking ahead at Point'--and was slowing down, intending to pull over on Point and stop to pick up a fellow employee whom he had seen in front of the Fleet station. He was 'looking directly almost ahead, out of the corner of [his] eye [he] was watching the line. * * * [His] eyes [were] concentrated in front of [him].' First he said he did not see Mrs. Zalle's car at all before the cars came into collision. Later he said that at the moment of impact he saw 'the flash of a car and that was it,' but did not see a blinking directional signal at any time before the impact. He could not tell whether Mrs. Zalle's car was moving and could not estimate its speed. Mr. Underwood was traveling at a speed of between 25 and 30 miles an hour at the time of impact. He did not hear a horn sounded at any time before the impact.

The verdict-directing instruction on behalf of counterclaimant Underwood, Instruction No. 2, follows:

'With reference to Defendant MELVIN UNDERWOOD'S counterclaim for damages against Plaintiff, HELEN ZALLE, the Court instructs you that it was the duty of Plaintiff to exercise the highest degree of care in the operation of her automobile on the occasion mentioned in evidence.

'In this regard, the Court instructs you that if you find and believe from the evidence that Defendant operated his automobile northwardly along the shoulder lane of Lemay Ferry Road on the occasion in question and that his automobile came into collision with an automobile operated by Plaintiff while in said lane, and that Defendant was in the exercise of the highest degree of care at all times in question, and if you find that previous to said collision, Plaintiff stopped her automobile on the south bound half of Lemay Ferry Road and then operated her automobile in a left turn across the north bound half of Lemay Ferry Road, and if you find that Plaintiff, in making said left turn operated her automobile into the path of Defendant's automobile, when Defendant's automobile was in...