In plaintiff’s action for damages in the amount of $150,000 for personal injuries resulting from an automobile collision, the verdict of the jury was for defendant, and plaintiff has appealed.
A detailed statement of the evidence is not essential. On the evening of February 26, 1968, defendant, age seventeen, was operating her automobile in Jackson County, Missouri, northerly on Salisbury Road. As she approached the intersection with U. S. Highway 24 she stopped her automobile. Highway 24 was a four-lane undivided highway with two lanes for eastbound and two lanes for westbound traffic. After waiting for an eastbound automobile to pass, defendant drove onto Highway 24 and made a left turn into the inner westbound lane. Plaintiff was operating her automobile west on Highway 24 in the inner lane when, according to her, defendant “shot” out in front of her and turned left. Plaintiff swerved her automobile to the left in an effort to avoid striking defendant’s automobile, and entered the inner eastbound lane. After traveling approximately 108 feet parallel to defendant’s automobile, plaintiff collided head-on with an eastbound automobile. There was no contact between plaintiff’s and defendant’s automobiles.
Plaintiff’s first point is that the' trial court erred in excluding certain evidence offered by plaintiff. Certain additional facts are necessary.
*943 Defendant thought her automobile may have been involved in the collision, and she drove onto and parked in a nearby vacant lot. A police officer attempted to talk to her, but she was “very upset and she was crying.” The officer told her to wait in her automobile and he would talk to her later. After he had cleared the highway he again talked to defendant, and according to the officer, “Miss Chilson did state that she had pulled out and she felt that she had caused the accident.” William Aider-son, a high school student, knew defendant and also her stepsister, Debbie Blann, who was a passenger in defendant’s automobile and he went to their automobile while it was parked in the lot and talked to them. According to Alderson, “one of them” talked to him in the presence of the other about the accident, but he could not recall which one it was. At the time of trial Debbie Blann was deceased. William Ald-erson, called as a witness for plaintiff, testified that he was at defendant’s car “just for a few minutes.” He was then asked: “* * * I will ask you what it was that either Pamela Chilson or Debbie in Pa-mel’s presence said to you about this accident?” An objection that the answer would be hearsay was sustained. Plaintiff then stated that the testimony “as to what was said by either the defendant or the sister in the defendant’s presence without a denial or contradiction by the defendant” was offered as an admission by the defendant against her interest if the statement was made by her, and if it was made by Debbie it was offered “as a tacit admission [by defendant] by her silence and failure to deny or contradict the statement made.” Plaintiff then made an offer of proof that if permitted, witness Alderson would testify that either defendant, or her stepsister Debbie Blann in defendant’s presence, said that Pamela Chilson had pulled out in front of plaintiff’s automobile and had caused the accident. This offer of proof was refused.
Plaintiff argues that if it was defendant who made the statement to Alderson the statement was an admission against interest, and if Debbie Blann made the statement it was made in the presence of defendant whose silence constituted a “tacit admission” against interest.
We conclude that in the circumstances of this case no prejudicial error resulted from the ruling of the trial court for a combination of reasons. First, it is not established who made the statement and it cannot be assumed that defendant made it. An admission by the defendant is entitled to considerable weight, Munday v. Austin,
Second, although Missouri has recognized the rule that “under given circumstances an admission may be implied from silence,” State ex rel. Tiffany v. Ellison,
' Third, the police officer had already testified that defendant had stated to him almost the precise statement set forth in the offer of proof, and defendant did not deny the testimony of the police officer. Therefore, the offered testimony of William Alderson would have at most been cumulative evidence of an admission by defendant, and its rejection could not have been prejudicial. Unrein v. Oklahoma Hide Co.,
Plaintiff next asserts that the court erred in admitting “incompetent, irrelevant and immaterial” testimony of Sergeant Robert McKinney on the ground that the witness, as an expert, was permitted “to average speeds from beginning speed of no miles per hour to a stated speed of 15 miles per hour,” obtain an average speed and from it compute the time it took for defendant’s automobile to travel 134 feet, and then to arrive at the distance traveled by plaintiff during that period of time. A statement of certain additional facts will be helpful.
Sergeant McKinney was called and qualified as an expert witness by plaintiff; not defendant. He was a supervisor with the Accident Investigation Unit of the Kansas City Police Department. He testified concerning stopping distances, reaction time, the effect of skidding the wheels, the distance required to swerve an automobile, and such matters. On cross-examination, after examining the witness as to the matters he testified to on direct examination, counsel for defendant asked “if a person is driving from a stop and gets up to fifteen miles an hour, there is really no way to average their speed, is there?” The witness answered, “No, we can just actually take an average.” When asked what that would be in the factual situation presented, plaintiff objected because “it is not based upon any hypothesis as to facts which are or will be in evidence in the case, and does not contain and is not based upon any question as to whether the car started off very slowly and then made its gain at the end of the time that it was rising to fifteen miles an hour, or whether it started off and immediately gained that speed.” The effect of this objection was that there was an insufficient hypothesis of facts to determine average speed. It was overruled, and the witness testified that “in figuring acceleration and time * * * we generally split it down the middle,” and that at seven and one half miles an hour a person travels approximately eleven feet a second. The witness was then asked to assume that an automobile starts “from a stop sign and gets up to the maximum speed of fifteen miles per hour,” that it crosses two lanes of *945 pavement and gets into a third lane and then travels 108 feet, and in view of these assumptions he was asked, “how many seconds would elapse from the time it started until the time it arrived at this point 108 feet down the highway?” Plaintiff objected because, first, “the question omits any reference to the total distance * * * whether it is a combination of the two distances, two lanes plus a hundred feet, * * or whether the distance is to be computed at an angle,” and second, “it omits any reference to whether the acceleration was immediate and then maintained at a steady rate for part of this distance, or whether from starting at a dead stop the car gradually and at the same rate of increase accelerated, so that it had just reached fifteen miles an hour at the end of the distance.” This objection was to the effect that there was an insufficient hypothesis of facts. The trial court overruled it with the comment that “you can develop that on cross-examination” [sic]. Following this it was developed that the total distance was approximately 134 feet, and the witness testified that by “rounding it off” the time to travel that distance would be approximately 12.2 seconds, and that a “westbound car * * * going at thirty-five miles an hour in 12.2 seconds” would travel 627 feet.
It is thus apparent that the basis of the point in plaintiff’s brief is not the substance of the objections made at the trial. However, neither the objections nor the contention in the brief demonstrates prejudicial error. The witness had been qualified as an expert, and defendant was entitled to cross-examine him to determine his knowledge and to have him express his expert opinions on material matters. It is true that he purported to calculate time from distance and average speed, which cannot accurately be done, but there was no objection on that ground. Plaintiff’s objections went only to the form or sufficiency of the questions asked him, and in its discretion the court could properly direct the witness to answer and permit plaintiff on re-direct examination to bring out the additional matters believed to be necessary or advisable. Even though the formula used by the witness may be questionable, there was no objection to that, and the evidence certainly was not irrelevant and immaterial. We find no prejudicial error.
Plaintiff’s remaining contention is that defendant’s requested Instruction 6 submitting contributory negligence was erroneous because it “suggests facts contrary to the evidence.” The instruction follows MAI 28.01, but as authorized in the “Notes on Use” following MAI 17.04, the submission set forth in MAI 17.04 was incorporated into MAI 28.01. The part of the instruction challenged is in the portion taken verbatim from MAI 17.04, and is as follows: plaintiff “knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of a collision in time thereafter to have stopped, or slackened her speed and swerved to the right but plaintiff failed to do so, *
In argument plaintiff asks: collision with whom ? She also argues that she “could not have stopped her automobile and avoided the accident.” It is not necessary that plaintiff had to anticipate the occurrence exactly as it happened. Foley v. Hudson, Mo.,
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.