Snelling v. Cernech

755 S.W.2d 259, 1988 Mo. App. LEXIS 680, 1988 WL 47547
CourtMissouri Court of Appeals
DecidedMay 17, 1988
DocketNo. WD 39705
StatusPublished
Cited by2 cases

This text of 755 S.W.2d 259 (Snelling v. Cernech) 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
Snelling v. Cernech, 755 S.W.2d 259, 1988 Mo. App. LEXIS 680, 1988 WL 47547 (Mo. Ct. App. 1988).

Opinion

MANFORD, Presiding Judge.

Appellants (plaintiffs) appeal from the judgment of the trial court, entered upon a jury verdict, in favor of appellants on their claims for personal injuries against respondent (defendant). Appellants also appeal from the judgment of the trial court, entered upon the jury verdict, in favor of respondent against appellant Snelling on respondent’s counterclaim for apportionment of fault for the injuries sustained by appellant Lempe.

Appellants raise five points on appeal which, in summary, charge that the trial court erred (1) in admitting evidence of appellant Lempe’s prior drug use, because such evidence was not admissible for purposes of impeachment and was highly prejudicial; (2) in refusing to allow evidence of respondent’s consumption of alcohol prior to the accident because such evidence was admissible to show respondent’s impaired physical condition at the time of the accident; (3) in admitting evidence of appellant Lempe’s alcohol consumption habits, because there was no evidence that appellant Lempe was physically impaired due to alcohol consumption at the time of the accident, and such evidence was highly prejudicial; (4) in failing to direct a verdict in favor of appellant Snelling on respondent’s counterclaim and thereafter instructing on comparative fault because there was no evidence that appellant Snelling could have avoided the accident; and (5) in submitting instructions on comparative fault relating to appellant Lempe’s claim against respondent because the instructions were improper modifications of M.A.I., and they were ambiguous and prejudicial.

The pertinent facts are as follows:

The collision occurred at the intersection of 47th Street and Norfleet in Independence, Missouri. Norfleet runs north-south and has a posted speed limit of 25 m.p.h. There is a stop sign on Norfleet controlling traffic crossing 47th Street. Forty-seventh Street runs east-west and has a posted [261]*261speed limit of 35 m.p.h. There are no traffic controls on 47th Street for traffic crossing Norfleet. There is a privacy fence on the northwest corner of the intersection which limits the view of south-bound vehicles on Norfleet to east-bound vehicles on 47th Street and vice versa.

The accident occurred in the early-morning hours of October 12, 1985. On the evening of October 11, 1985, Snelling went to Lempe’s home to watch a baseball game on television. During the game, Lempe drank two beers and ate some Doritos. Snelling did not consume any alcohol that evening. Snelling fell asleep while watching the ball game and when he awoke, a little before 1:00 a.m., Snelling and Lempe decided to go to the International House of Pancakes, located at Noland Road and 40 Highway in Independence, to get something to eat.

Snelling drove his Datsun and Lempe was riding in the front passenger’s seat. Snelling testified that it was raining hard, but that his windshield wipers were on and his vision was not obscured. Snelling testified that as they proceeded east-bound on 47th Street, he was not exceeding the speed limit of 35 m.p.h., and that he was paying attention to his driving.

Lempe testified that he never saw respondent’s car before the collision and that when they reached the intersection, there was “like a flash streak and it was just an impact.” Lempe was knocked unconscious in the collision.

Snelling testified that he never saw respondent’s car before the collision. He described the accident as “an immediate flash of lights” as he was going through the intersection. Snelling stated that “there was no time for decision whatsoever”, and that his immediate reaction was to put out his hand in an attempt to hold Lempe back. He testified that he never had an opportunity to apply his brakes. Snelling’s automobile was totalled in the accident.

Respondent, Cemech, was the driver of the automobile which collided with appellants. Cemech testified that at the time of the collision, he was sixteen years old and had gotten his driver’s license just four months prior. He testified that on the evening of October 11, 1985, he went to a party at a friend's house and was planning on spending the night there because his friend’s parents would not be home.

Cernech testified that he’d had a snack earlier in the day and at approximately 12:30 a.m. on October 12th, he and some friends went to get a pizza. Cemech was driving a car owned by his parents and as they were returning to the party, Cemech turned off of .40 Highway and proceeded south on Norfleet. Cemech stated that it was raining hard and his car windows were partially fogged.

As he entered Norfleet, he was traveling approximately 40 to 45 m.p.h. (Cernech admitted that after the collision, he told a police officer he was going 45 to 50 m.p.h. The posted speed limit on Norfleet is 25 m.p.h., which is posted at two locations on Norfleet between 40 Highway and 47th Street.) Cemech “coasted” down Norfleet toward the intersection at 47th Street. He testified that although he had been through the intersection once before (on the way to get pizza), he “vaguely” remembered a stop sign. Cemech stated that he did not see the stop sign until just before the intersection, however, he admitted that as he was approaching the intersection, he stated to his passengers, “I don’t see a stop sign.” Cemech saw headlights 50 to 60 feet to his right coming toward him on 47th Street. At that time, he determined it was too late to brake so he decided to attempt to accelerate through the intersection. Cemech’s vehicle was in the middle of the intersection when it was struck by Snelling’s vehicle. Cemech’s vehicle sustained damage to the right-rear quarterpanel, just behind the door. Cemech was not injured and his passengers sustained minor injuries.

Appellants’ attorney sought to cross-examine Cemech concerning his use and possession of alcohol on the evening before the accident, but the court would not allow it, having previously ruled on the matter by granting respondent’s Motion in Limine. Appellants made the following offer of proof, which was denied by the court: That Cemech had admitted consuming one beer [262]*262at approximately 10:00 p.m. at an all-night party without parental supervision; that Cernech and a companion had obtained a case of beer from a field for use at the party; that Cernech had a history of consuming beer and wine at home with parental consent; that there was a case of wine coolers at the party; that Cernech had not eaten during the evening; and that a police officer at the accident scene smelled beer on Cernech’s breath. (Police officials did not administer a sobriety test.)

At the time of the accident, Snelling was 21 years old. Prior to the accident, he was in good health and was employed by Belger Construction earning $15.32 per hour. Snelling’s job involved the building of box culverts and he was often required to go inside the box culverts, necessitating movement while in a “catcher’s squat.”

Following the collision, Snelling exited his vehicle and approached Cernech. Snell-ing testified that Cernech admitted that he had not seen the stop sign. Snelling went to a nearby house to call the police. Snell-ing noted that his injuries included pain in his back, right shoulder, and right knee. Although an ambulance arrived, Snelling did not avail himself of medical attention until later that day.

At approximately 3:00 p.m. on October 12th, Snelling went to Park Lane Hospital, complaining of his injuries. Medical personnel X-rayed Snelling’s back, right shoulder, and right knee.

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

Related

Ingram v. Missouri Highways & Transportation Commission
243 S.W.3d 504 (Missouri Court of Appeals, 2008)
Lay v. P & G Health Care, Inc.
37 S.W.3d 310 (Missouri Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
755 S.W.2d 259, 1988 Mo. App. LEXIS 680, 1988 WL 47547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snelling-v-cernech-moctapp-1988.