Friedman v. United Railways Co. , 293 Mo. 235 ( 1922 )

Plaintiff sued for fifteen thousand dollars damages. Upon a trial the jury returned a verdict for defendant, and she appeals. The basis of the action is a collision, occurring about eight o'clock, p.m. on the 4th day of September, 1918, at Kingshighway and Wise Avenue in the city of St. Louis, between a street car of respondent, and an automobile owned and driven by appellant's husband and in which she was riding. The negligence charged was the violation of the Vigilant Watch Ordinance and the Speed Ordinance of the city of St. Louis. Sundry injuries were alleged. The answer of respondent ascribed appellant's injury, if any, to her own carelessness and negligence, and was tantamount to a general denial.

For appellant, the testimony showed that she and her husband had been driving through Forest Park in her husband's Ford coupe and had entered Kingshighway, a north-and-south street, driving toward the south; that as they approached Wise Avenue, a street running east and west, they turned in toward the sidewalk on the west side of Kingshighway preparatory to turning back to the north. At this point Kingshighway is about sixtyfive feet wide. Respondent's street car tracks are laid thereon in such way that there is a space of forty feet between the west curb of Kingshighway and the west rail of said track, so that vehicular traffic goes both north and south on Kingshighway on the west side of the street-car tracks, the east side of said tracks being used also for north-bound traffic.

Appellant's husband had made the turn and his automobile was running in a northeasterly direction at the time of the collision. The street car was coming from the north. Appellant said: "We came down Kingshighway, my husband stopped and then turned. While he was turning eastwardly and northwardly, he was not driving very fast. He was looking. I was looking also. . . . I remember when my husband had just about turned he had this terrible collision. . . . We were going northeast at the time and he was starting to cross the street car tracks to get on the east side of the street. I did not see the street car coming down there before the accident, only saw it momentarily just as we were struck."

On cross-examination she said: "When I was five feet of the track I looked north and could see a block up the street-car tracks, and didn't see a street car until the moment of the collision. I was looking for one all the time. I never tell my husband, he always stops. I placed myself entirely in his hands and was depending upon him to avoid a street car. But I always look around. I looked also. I depended more upon my husband to discover the street car than I did upon myself."

Appellant's testimony further showed that the street car was being operated in violation of the Speed Ordinance and that she suffered rather severe injuries.

Respondent's testimony tended to show that after appellant's husband had turned his automobile toward the north, while the street car was passing, he suddenly turned to the right, bringing it in collision with the street car, and otherwise there was substantial testimony on the part of respondent contradicting that adduced by appellant.

The court gave seven instructions requested by appellant. Respondent offered no instructions and made no requests. The court refused to give appellant's requested instruction numbered C. Appellant's instruction covered the allegations of the petition, and submitted the question of appellant's own negligence as a contributing factor to her injuries.

She complains that the verdict of the jury was against the law and evidence and that the trial court committed manifold errors during the trial, all of which, with additional pertinent facts, will be discussed in the course of the opinion.

I. There was substantial testimony tending to show appellant's negligence. She said her husband was driving slowly and that when within five feet of the track she looked toward theContributory north where she could see a block up the street-carNegligence. tracks but saw no street car and that immediately the collision occurred.

Her witnesses said that the street car was running from twenty to twenty-five miles per hour. There was no reason why the approaching street car could not have been seen by appellant, as well as by her husband, as she said they were both looking for a street car. It was her duty thus to look (Burton v. Pryor, 198 S.W. (Mo. App.) 1117, Leapard v. Rys. Co., 214 S.W. (Mo. App.) 268, and cases cited), and failure to perform this duty, or to perform it badly, was negligence. The automobile being only five feet from the car track, moving in a northeasterly direction for the purpose of crossing over, and the view being unobstructed, the street car was clearly visible to appellant while it covered the intervening distance of a block before the collision. Whether such testimony was unreasonable or not (Alexander v. Railway,233 S.W. 44; Evans v. Railroad, 233 S.W. 397) appellant treated it as raising a question of fact for the jury, as she submitted in practically all of her seven instructions the question of her own negligence.

The rule is well established that where there is substantial testimony on both sides of a debatable question, it is for the jury and the trial court, and not for the Supreme Court, to weigh such evidence. [Thomasson v. Hunt, 185 S.W. (Mo.) 165; Daniel v. Pryor, 227 S.W. (Mo.) 102; Moore v. Railroad, 268 Mo. 31, 186 S.W. 1035; Haines v. Railroad, 193 Mo. App. 453, 185 S.W. 1187; DeWolff v. Morino, 187 S.W. (Mo. App.) 630; Robertson v. Kochtitzky, 217 S.W. (Mo. App.) 543.]

Moreover, respondent's witness, Woody, said that as the automobile completed its turn and was on the moment of passing to the left of the approaching street car, it suddenly turned to the right and ran into the street car, thus raising the question as to whether or not the negligence of appellant's husband was the proximate cause of the collision and consequent injuries to her.

A verdict supported by evidence will not be disturbed by this court (State ex rel. National Bank v. Sturgis, 276 Mo. 559; Ellis v. Railroad, 234 Mo. 657), and particularly is this true where the trial court has overruled a motion for a new trial, based in part upon the alleged insufficiency of the evidence. [Alexander v. Railroad, 282 Mo. 236, 221 S.W. 712.] In actions at law, it has even been held by this court that the weight of undisputed parol evidence is for the triers of fact and their findings are conclusive. [Union Trust Co. v. Hill, 283 Mo. 278, 223 S.W. 434.]

II. Immediately after the accident, appellant was taken to the hospital in the automobile of witness Woody. Appellant was not unconscious, but hysterical, and in her excitement she said "Oh, daddy, you have killed me," to which her husband replied, "It was your fault, sweetheart, you grabbed the wheel." Whereupon, appellant said, "I know it was, I don't blame you, sweetheart." Appellant strenuously objected to this testimony, upon the twofold grounds that appellant was irresponsible,Admissions. and her husband being incompetent as a witness, the statements made by him were incompetent, These statements were in the nature of admissions against interest and were competent (22 C.J. 231, 297; Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614, 142 Mo. App. 519, 127 S.W. 124; Chambers v. Chambers, 227 Mo. 262, l.c. 285, 127 S.W. 86; Tuite v. Woodmen Circle, 193 Mo. App. 619, 187 S.W. 137; Wilson v. Albert, 89 Mo. 537; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722; Sparr v. Wellman, 11 Mo. 230; Heller v. Ferguson,189 Mo. App. 484, 176 S.W. 1126; Gillespie v. Insurance Co.,168 Mo. App. 320, 153 S.W. 1079); and it was the duty of respondent to show the whole conversation, including the statements of appellant's husband. [22 C.J. 411; Kritzer v. Smith, 21 Mo. 296.] Whether this waived the incompetency of appellant's husband as a witness we need not decide, as appellant's counsel withdrew him as a witness after the court had ruled in favor of his competency, and the hysterical state of mind of appellant would only bear on the weight credibility of such statements.

III. The complaint that the court excluded competent testimony offered by appellant is untenable. Appellant attempted to show that her husband was a careful driver, had never had a previous accident, and had been driving carefully on theOther Occasions. day of the collision. The court was most liberal in her favor, as he permitted appellant to testify, over the objection of respondent, that her husband was a fair driver and that he was driving slowly immediately before the accident (referring to the drive through the park). The court properly excluded any testimony as to whether or not he had had previous accidents, as such testimony would open the door to perplexing side issues. [22 C.J. 746; Funsch v. Stevenson, 223 S.W. (Mo.) 593; Black v. Railway, 162 Mo. App. 90, 144 S.W. 131; Hipsley v. Railway, 88 Mo. 348; Horr v. Railway,156 Mo. App. 651, 137 S.W. 1010.]

Respondent objected to such testimony, on the ground that it was immaterial, as it had no bearing upon the question of appellant's care or lack of care in this case. Appellant cites no authorities. Respondent urges upon our attention Goble v. Kansas City, 148 Mo. 470, wherein this court ruled that it was improper to admit testimony of other accidents in the suit against the city, involving a defect in the sidewalk. That case was expressly overruled in the case of Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180, where it was held that evidence of other accidents arising from a defect in a sidewalk was admissible. However, these cases have no application here. Plaintiff testified that at the time of the accident, she was looking for the approach of a street car and was therefore vigilant for her own protection.

IV. We are precluded from a consideration of appellant's assignment of error to the court's refusal to give her instruction numbered C. She did not so complain in her motion for a new trial, so that question is not before us forMotion for review. [Crecelius v. Railroad, 274 Mo. 671, 205 S.W.New Trial. 181; Reddy v. Ins. Co., 221 S.W. (Mo. App.) 397; Viles v. Viles, 190 S.W. (Mo. App.) 41.]

V. At the conclusion of the evidence, and after the jury were instructed, appellant's counsel asked for twenty minutes on each side for argument. Respondent's counsel proposed to submit the case without argument. Appellant's counsel requested ten minutes for his opening argument and ten minutes for to Jury.Argument closing. Twelve minutes were used by him in the opening, and at the close thereof counsel for respondent declined to make any argument, whereupon appellant's counsel demanded the right to make a closing argument, and this was denied him. Complaint is made here that the trial court abused its discretion in thus closing the argument. We cannot so say. The issues in the case were not complex or involved. Appellant's counsel had twelve minutes, wherein to present his inferences from the facts and apply the law. Respondent had requested no instructions. Appellant's instructions only were given to the jury (barring the court's formal instructions). This made the issues most simple. Moreover, the purpose of a concluding argument is to answer the argument by counsel who holds the negative in a given case, and if, perchance, defendant's counsel declines to argue and waives argument, plaintiff for the affirmative has nothing to answer. Within the sound judicial discretion of the court, permission for a concluding argument under such circumstances may be refused. [38 Cyc. 1474.] And likewise the court may limit the time of arguments. [Reagan v. Transit Co., 180 Mo. 117.]

VI. Appellant complains against the conduct of the trial court in exhibiting impatience, as she alleges, which she says was prejudicial to her case, in the minds of the jury. No exceptions were saved to the alleged improper conduct of the court, and in consequence there is nothing before us forNo Exceptions. review. [Section 1512, R.S. 1919; Baade v. Cramer, 213 S.W. (Mo.) 121; Gardner v. Railway,167 Mo. App. 605, 152 S.W. 98.] The case of McCarty v. Transit Co., 192 Mo. 396, urged by appellant, has no application to the facts here, and neither did the decision in that case seek to overturn an express statutory requirement, but simply enumerated those things that would pass before the trial judge, warranting action by him, and which facts were of such nature as to be incapable of preservation for our review. That case was nothing more or less than an assignment of reasons for sustaining the judicial discretion of the trial judge. Under this paragraph it may be noted that appellant complains that whereas the court did not exclude her husband as a witness, he offered to admit his testimony under such circumstances as to prejudice her case. The record shows that the court reluctantly offered to admit the testimony of plaintiff's husband but admonished counsel that he was taking a chance, whereupon counsel withdrew appellant's husband as a witness. Appellant insisted that her husband's disability had been waived and the court yielded to the importunity of her counsel. His friendly act in admmonishing her counsel does not form the basis of a legitimate complaint, and particularly as he did not object or except at the time.

VII. Finally, appellant complains that the court erred in declaring the law of the case during the trial. This contention must be ruled against her. During the trial her counsel, in offering certain testimony, expressed his opinionDeclaring Law in an argument to the court, as to what heDuring Trial. believed the law was, as follows: "That, unless a passenger on a car has reason to believe that the driver is negligent in driving the car, then there is no duty on that passenger to do anything with regard to the guidance of that car or its control."

To which the court replied, "I don't believe that is the law."

The court was not only correct in his opinion, but his ruling necessarily followed as a sequence to the argument of appellant's counsel.

We find no error in this record, and we accordingly affirm the judgment. It is so ordered. Railey, C., concurs; White, C., not sitting.