Myers v. Ries

8 S.W.3d 137, 1999 Mo. App. LEXIS 2220, 1999 WL 1034441
CourtMissouri Court of Appeals
DecidedNovember 16, 1999
DocketNo. ED 74884
StatusPublished
Cited by1 cases

This text of 8 S.W.3d 137 (Myers v. Ries) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Ries, 8 S.W.3d 137, 1999 Mo. App. LEXIS 2220, 1999 WL 1034441 (Mo. Ct. App. 1999).

Opinion

PAUL J. SIMON, Judge.

Tom Myers, plaintiff, appeals from a judgment entered on a jury verdict apportioning fifty percent fault to plaintiff and fifty percent to defendant, Gerald Ries, in an action for negligence arising out of an automobile-motorcycle collision.

On appeal, plaintiff contends the trial court erred in allowing the defendant’s deposition testimony to be read to the jury in violation of Rule 57.07, during defendant’s case-in-chief, and ruling against plaintiffs motion for new trial regarding the percentage of fault and/or additur because the verdict was against the manifest weight of the evidence and resulted from bias, passion, or prejudice. We affirm.

The record, viewed in the light most favorable to the verdict, reveals that on September 25,1990, plaintiff was operating a motorcycle northbound on Gustine Avenue at the intersection of Alberta when his motorcycle and defendant’s automobile collided. Gustine Avenue is a two-way street, divided by a wide, grass median, with one lane on either side. At the intersection of Gustine and Alberta, there is a paved break in the median. There are no traffic controls at the intersection.

As a result of the accident, plaintiff suffered a fractured collarbone, concussive head injury, bleeding into the urine, dislocated thumb, ruptured left eardrum and inner ear concussion, most of which had healed by the time of trial. However, as a result of the injury to his ear, plaintiff suffered permanent hearing loss and severe headaches, vertigo, loss of equilibrium, impaired ability to work, past and future lost wages, past and fixture medical expenses and pain and suffering.

At trial in April 1998, plaintiff testified that as he approached the intersection, northbound on Gustine, he saw defendant’s automobile, southbound, on the other side of the median. When he was fifty feet away, he noticed the automobile stop near the intersection of Alberta. He then saw the automobile turn onto the opening in the median at Alberta and stop before entering the northbound lane of Gustine. Plaintiff testified he was thirty feet from the intersection at this time. As plaintiff neared the intersection, he stated he was traveling between 20 to 25 miles per hour. He decelerated when he first saw defendant’s automobile because he was uncertain as to what defendant would do. However, when he noticed that defendant’s automobile was stopped at the intersection, he accelerated, thinking that defendant would remain stopped. As plaintiff reached the intersection, defendant began making a left turn onto Gus-tine. Plaintiff saw defendant’s automobile coming into his lane on Gustine, so he hit his brakes and veered to the right, but was unable to avoid the collision. Plaintiff [139]*139was knocked unconscious and testified that he had no recollection of the collision.

The record indicates that defendant was not present at trial and, pursuant to Rule 57.07, plaintiff read to the jury the following selected portions of plaintiffs counsel’s examination of defendant from defendant’s deposition:

Q: What is your address now?
A: My address is 4249 Michigan.
[[Image here]]
Q: Okay, do you remember this particular accident?
A: No, Sir.
[[Image here]]
Q: As far as - all right, are you saying you don’t remember this accident at all, don’t remember anything about it?
A: Practically nothing.
[[Image here]]
Q: Okay, why was the police officer taking something down? Why were you talking to him?
A: Because when I heard a thump, I was already on Alberta.
[[Image here]]
Q: Do you think that the motorcycle driver was going too fast? Is that what you’re telling me?
A: I can’t tell you that.
[[Image here]]
Q: All right. Do you know whether or not before you made this left turn onto Alberta from Gustine, do you know whether or not you came to a complete stop?
A: I always do so I can look.
Q: All right.
A: Then I go right away.
Q: All right.
A: The faster I get away from there the better off I am.
[[Image here]]
Q: Do you remember telling the police officer that you were trying to make a left turn on Alberta when you accidentally struck the motorcycle? Do you remember telling the police officer that?
A: I never told the police officer that.
Q: All right. As far as you know - this is regarding an optometrist.
Q: As far as you know, he says you are fine and you don’t need any glasses?
A: No, I need glasses to read.

After plaintiff finished reading portions of the deposition, the trial court offered defendant’s counsel the opportunity to read portions of the deposition for “completeness purposes only,” but he declined to do so at that time.

Officer Sharp of the St. Louis Police Department, who responded to the accident, testified that he arrived at the scene approximately seven minutes after the accident. He interviewed plaintiff and defendant and recorded their statements in his report. Officer Sharp testified that his report stated that defendant said “he was driving south on Gustine, attempting to make a left turn onto Alberta. While making his left turn, he accidentally struck [plaintiffs motorcycle]. [Defendant] stated that he was at a complete stop before making his left turn and did not see any traffic coming.” Officer Sharp further testified that his report indicated plaintiff said “all he could remember was that he was driving north on Gustine when, out of nowhere, he was struck.”

Plaintiff also presented the deposition testimony of Walter Lemann, M.D. and the videotaped deposition testimony of James E. Benecke, M.D. Both Dr. Lemann and Dr. Benecke testified that as a result of the accident, plaintiff sustained a damage to the left ear, which resulted in permanent hearing loss, loss of equilibrium, and vertigo. Further, they agreed that further surgery to correct the loss of equilibrium is an option for plaintiff.

Regarding his injuries, plaintiff testified that he suffered impaired ability to work, past and future medical expenses and pain and suffering. The record reveals that the [140]*140uncontroverted testimony was that plaintiff suffered present medical damages amounting to $6,075.40, future medical damages estimated to be between $12,-000.00 and $15,000.00, and lost wages of $11,559.62 for a total of $29,625.02 to $32,-635.02.

During defendant’s case, counsel was allowed, over plaintiffs objection, to read to the jury for completeness purposes the following selected portion of plaintiffs counsel’s examination of defendant from defendant’s deposition:

Q: Would you state your name for the record, sir?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roy Lee Fox v. State
Court of Appeals of Texas, 2008

Cite This Page — Counsel Stack

Bluebook (online)
8 S.W.3d 137, 1999 Mo. App. LEXIS 2220, 1999 WL 1034441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-ries-moctapp-1999.