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Zempel v. Slater12/6/2005
consistent with Slater's version of the accident. Slater's counsel even relied on the officer's testimony that the point of impact was near the south side of the road to argue that, with Slater's car that far across the intersection, Zempel had time to see him and avoid hitting him. Therefore, the officer's testimony was not unfairly prejudicial to Slater, and there was no clear abuse of discretion in admitting it. See Fairbanks, 13 S.W.3d at 318.
The diagram depicting the point of impact was also admissible. Although it shows Slater's car in the middle of Route B at the point of impact--with the back end of the car in the westbound lane and the front end in the eastbound lane--the officer's testimony during cross-examination clearly indicated that (1) no part of Slater's car was in the westbound lane at the point of impact, (2) the impact occurred when Slater's car was much closer to the south edge of the road, and, in fact, (3) part of Slater's car had already passed through the intersection by that time. The conflict between the diagram and the officer's testimony does not, as Slater contends, render admission of the diagram erroneous. Complaints about inconsistencies in the evidence go to weight, not to admissibility. Brandt v. Pelican, 856 S.W.2d 658, 663 (Mo. banc 1993). And, again, Slater's counsel relied on the contradictory--and favorable--testimony of the officer to lessen any prejudice attending the diagram. It was not a clear abuse of the trial court's discretion to admit the diagram. See Fairbanks, 13 S.W.3d at 318.
Point VII is denied.
B. Sufficiency of the Evidence
Slater challenges the submission of the verdict-directing instruction regarding his failure to yield the right-of-way or failure to keep a careful lookout; he also challenges the denial of his motions for directed verdict and for judgment notwithstanding the verdict. The propriety of these rulings all ultimately depend on whether there was substantial evidence that Slater failed to yield the right-of-way and failed to keep a careful lookout. See generally Romeo v. Jones, 144 S.W.3d 324, 330 (Mo. App. E.D. 2004) (each alternative in disjunctive instruction must be supported by substantial evidence); Erdman v. Condaire, Inc., 97 S.W.3d 85, 88 (Mo. App. E.D. 2002) (directed verdict and judgment notwithstanding the verdict both depend on whether plaintiff presented substantial evidence for every fact essential to liability). These are questions of law, and we view the evidence and all reasonable inferences therefrom favorably to the Zempels in this case and disregard the unfavorable inferences. See Romeo, 144 S.W.3d at 330; Hudson v. Whiteside, 34 S.W.3d 420, 427 (Mo. App. W.D. 2000); Erdman, 97 S.W.3d at 88.
Every motorist operating a vehicle must "exercise the highest duty of care to maintain a careful lookout ahead and laterally upon entering an intersection." Blackshiers v. Harris, 980 S.W.2d 189, 190 (Mo. App. E.D. 1998). This duty requires drivers to make careful observations to determine whether there is any cross traffic in or so near the intersection as to constitute an immediate danger. Hudson, 34 S.W.2d at 427. To make a submissible case that the defendant failed to yield the right-of-way at a stop sign, the plaintiff must establish that his vehicle was so close to the intersection that it was an immediate hazard. Id. at 429. The evidence can include, among other things, the plaintiff's speed, the location of the collision and the distance one could see in the plaintiff's direction from the stop sign; when coupled with evidence of the stop sign's location, the collision and damages, the plaintiff makes a submissible case. Id. To make a submissible case of failure to keep a
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