*1 Flack v. Ball. placed it
handling and He removed the lid. his closed before against and that incident was the wall removing provided re- injury. and The manner injury. nothing placing to do with the lid had the evidence was hold that to are constrained We perempt- jury. The the case to insufficient submit given. ory have been instruction should judgment reversed; be that the should It follows so recommends. the commissioner opinion Brtjere, C., PER CURIAM:—The judgment adopted opinion the court. The accordingly city Louis is the circniit court of the St. Becker, con- JJ., Danes, reversed. P. Allen, J., cur. Respondent, BALL, C. PHILIP D. FLACH,
MARIE
Appellant. Opinion April 4, Appeals. Filed Louis Court of
St. PRACTICE: Demurrer to Evidence: Viewed Most Favorable 1. TRIAL passing upon the evi- demurrer to Plaintiff. In defendant’s light dence, in a most favorable the evidence must viewed be may admitting every plaintiff, inference that as true fact reasonably therefrom. adduced Running Contributory Negligence: by Automobiles 2. NEGLIGENCE: Negligent Stopped as Mat- Evidence: Pedestrian Street Car: alleged injuries damages personal ter of In action for Law. an automobile, being by by struck have caused alighting to the effect that there where intending car, an eastbound board northbound street from a standing car, intersecting other on the saw southbound to cross in front of northbound track and started pedestrians, used she was much cars and southbound automobile, automobile in violation of an struck high speed past rate of said stand- driven ordinance distance she knew she had ing and that APPEAL REPORTS Flach travel to cross in. after front of the southbound car was such receiving discharging passen- that car resumed motion after gers go twenty-seven it would have to about could feet before it *2 reach the take, presumed line of travel she intended to and also past that no southbound vehicles be driven the southbound would standing, street car while said remained that all ve- car but such remain, hicles the car at rear of street until such would car again motion, had resumed held that failure the her to look at crossing southbound car before the southbound car track not was contributory negligence aas matter of law. Impeachment: 3. WITNESSES: Prior Consistent Statements: Admis- sibility. only the Where record showed defendant’s witness impeach was cross-examined with view to contradict and such a witness, interrogating regarding him a written statement had he days detailing made a few after his version of the accident oc- the currence, appear it and does not in- written statement was evidence, troduced in or that matters in- therein contained were trial, testimony given consistent with the witness at impeachment support not it so as to defendant did show entitle to by proof testimony. him of statements consistent with his Subsequent 4. -: -: -: Evidence: Statements to Made Competency. though proof Contradiction Proved: Even there was testimony given of witness at variance his at declarations with trial, confirmatory declarations were not admissible which posterior contradictory proved made were to the declarations and subsequent supposed corruption to the time ,the interest of the witness existed. Assuming Undisputed 5. INSTRUCTIONS: Pacts: Not Reversible Error. alleged damages personal injuries In an action for for to have by being automobile, it been caused struck where undisputed street car and usual a tracks, stopping place intersecting north on the side of and dispute, fact was not an issue of fact in is- controverted being sue fact whether defendant started the automobile past resumed motion ran street car the same before started, it not reversible street give held was error to it assuming stopped. an instruction street car had Injured NEG-LIG-ENCE:Automobile: Pedestrian: Stat- Street: Vigilant Duty: Degree Timely of Care: ute: Driver’s Watch: Warn- 1911, pages 330, requiring ing. every person Laws of upon approaching pedestrian operating upon automobiles who is a any upon give part highway, sidewalk, not a a traveled bell, timely signal signaling, device his horn or other for TERM, 1922.
Flack v. injuries persons prevent highest degree care to to use the duty . streets, imposed a driver automobile on an part upon aof pedestrian a approached traveled who was a give vigilant public keep and look-out and a watch timely signal warning, such re- instruction based and an provided notwithstanding quirements proper ordinance crossings. only for Speed: Experts. The rate Automobiles: Rate EVIDENCE: ' running matter exclusive- is at which an automobile expert testimony, ly and as to Whether a witness able judge he had it matter view of was from the testimony weight jury it such credence as deemed it entitled to. County.—
Appeal St. Louis Circuit Court Judge. Wurcleman, Hon. G. A.
Affirmed. appellant.
Bryan,
&
Williams Gave
refusing
(1)
in
in-
The court
erred
of a
the
in
demurrer to
struction
the nature
evidence,
the
Flach
reason
Marie
was herself
(cid:127)
contributory negligence
guilty
of
of
a matter
law.
Lowry
Railroad,
Keele v.
258 Mo.
Smith,
v.
S. W.
(2)
O’Donoghue,
v.
The
437; Ginter
giving plaintiff’s
erred in
instruction No.
au-
court
against
finding
thorizing
This
the defendant.
instruc-
clearly
tion thus
assumes
street car
in
when
Flach
over
of
Mrs.
crossed
front
was a most material
fact.
it. This
controverted
assumption
in
instruction
such a.material
That
requires
authority.
and controverted fact
is error
no
(3)
giving
The court
in
instruction No.
erred
against
directing
finding
This
defendant.
happened
time
in
1917. At that
Laws
accident
June,
regulating
in effect.
were still
vehicles,
motor
requiring
provision
These
contain no
laws
whatever
APPEAL REPORTS,
y.
Flack
signals
sounding
(Laws
under
conditions here
p. 326).
The
ordinance
St. Louis
‘‘
provided
in
time
effect at the
of the accident
driv-
approach-
ers motor vehicles
shall,
all
kinds,
ing*crossings
rounding
pub-
or in
curves or
corners
signals
lic
sound their
in
way
streets,
such a
as to
pedestrians
warning
to other
vehicles
of their
approach.”
“crossing,”
The term
or-
used
only
means and
dinance,
can
be construed to mean a
crossing.
Echmann v. Buchhirt, 128 Wis.
place
385. The
of the accident under all the evidence
crossing.
question
was not a street
The
of whether the
failure to sound a
under the
circumstances
negli-
this
case was
was not under all
gence
jury,
part
was one for the
and it was error on the
jury,
of the court to tell the
as a matter of
law, that
duty
signal.
(4)
was defendant’s
to sound a
The court
refusing
erred in
to allow
defendant
to show that his
shortly
given
witness Caldwell had,
after the accident,
testimony
testimony
to the same effect as Ms
on this
plaintiff,
after
trial,
at-
had
cross-examination,
tempted
impeach
by showing
this witness
he
prior
made certain
statements inconsistent
tes-
with his
Kelly
timony.
v. Insurance
192 Mo.
Co.,
24; State
v. Grant, 79
33;Mo.
State Whelehon,
Flack Y. Ball. George Fauntleroy, Mix, Abbott, Cullen & Ed- E. respondent. Hay& wards and Gurlee (1) negligence guilty not Plaintiff was as a mat- App. 195 Ford, ter law. Carradine v. Mo. Cool 684; App. O’Donogliue, 189 Mo. 718; v. Ginter v. Peterson, Bongner Ziegenhéim, App. 734; 179 v. 165 Mo. App. Hodges Mo. Chambers, 171 Moffatt 328; 563; v. v. Meenach v. 187 837; Crawford, 229 S. W. Link, W. S. 106 879; Sweet, 257; Arseneau v. Minn. Winckowski v. (2) Dodge, 149 N. 106. 303, 183 Mich. Plaintiff’s W. number 1 does assume not that the car instruction had place. stopping stopped at But the court if jury stopped, expressly that it had it told so had every only in the have done what case would witness disputed single by The fact wit- done. had no.t in It is admitted defendant’s statement and brief. ness. which whether the car had issue was The regular stopping place de- motipn resumed plainly The instruction his machine. started fendant alleged properly issue. the fact, Since tenders only not but was assumed, controverted, admitted trial, defendant admitted not have in this court it would brief instruction. Huckshold assume v. error Rys. Deschner 1072; 234 W. Louis, of St. S. Co. United v. Railway, Transit 211 310; Co., v. 200 Mo. Davidson Phelps 572; Mo. Orcutt v. Cen- Zinc 218 320; Co., v. Mo. Bldg. Mo. tury 393; Nachbar, Dee v. Co., Mo. 35; City, (3) Instruction num- Kansas 185 Mo. v. Small jury ordi- both under the statute and what, 4 told the ber law the common unaided statute nances and under auto- duty of the driver of an it was the ordinance, App. 1; John- McFern v. Mo. Gardner, do. mobile to App. 174; Mo. Oster'meier Co., v. Traction son Griffith, Implement Eisenman v. 129; 255 Mo. Co., page p. App. Laws 2; Laws sec. (9); Ricker, Arenson subdivision City Louis, 1912, of St. Sec. Revised Code *5 REPORTS, APPEAL 394 209 MISSOURI Flach v. Ball.
(4) made The statements witness Caldwell properly They criminal were excluded. trial were made signed contradictory after the statements were and after representative he seen of the defendant. They very made under thé were same circumstances subject very and when same influences when instant in the trial case. made Under all the au- such- statements were All thorities, inadmissible. hold that render cases evidence of similar statements it must shown admissible the statements were making prior contradictory to the made state- under ments and circumstances when no moral influence misrepresent Kelley the facts. exists to color v. App. Sharp, 24; 192 Mo. Co., Insurance v. 183 State Mo. Maggard, Caddy, v. 250 737; 335; State Mo. v. State 15 Rep. D. McCord 83 State, S. 636; v. G-a. 8 Am. 521, Crim. Sweeney Sweeney, People, v. 121 Ga. Gates 293; v. Stolp People, v. 68 111. 433; 14 111. Blair, 541; Waller v. R, Chicago City 284, 70 681; 209 111. N. E. Co. Matthie- y. Stephens, 212 111. 72 N. E. son, 443; Rhutasel v. 68 Petty, (a) (5) Iowa v. Kan. 627; State 54. Harden engineer, Mummert, J. a mechanical whose work had determining to do with automobiles movements produced by observation of effects them, who had owned and run machine since saw the machine from the saw rear, struck and over the machine and to the hurled He street. testified opinion -from did, that he what form an saw, as qualified, manifestly car. He well opinion. qualified, to an v. Watson, State 216 Mo. App. v. Transit Aston St. Louis Mo. 420; Co., 226; Hough App. Ottofy Co., Automobile Mo. 58; v. v. 473; Trust Lorenzen Co., Railroad, (N. S.) Miller v. 34 L. Jenness, R. A. 182; Dugan (N. S.) 34 L. A. Arthurs, R. Harnau v. (b) Haight, testimony, Mich. But Mummert’s only not, whether admissible was harmless. The is- jury submitted to was whether au- sue per running excess of ten tomobile miles hour. Flack v. *6 brought by plain- suit C. This
BRUERE, injuries damages personal sustained recover to tiff by alleged negligently be- have caused by to her, automobile, ing by while she struck city of walking in the St. avenue, Hamilton across intersection with the Hodiamont street its near Louis, car tracks. charged negligence operating petition in said
The of in violation the ordinances of the automobile (a) Operating in this: said automobile at Louis St. hour, (10) per (b) of ten in excess a rate of miles give any horn or bell, otherwise, Failure to approaching crossing persons over or the inter- warn crossing approach avenue, or Hamilton section (c) stop failure such auto- automobile remain rear a southbound Hamilton mobile and standing which was at the time car, street to. avenue passengers on north let off on and side of take tracks. street car Hodiamont charged petition further the defendant
The keep vig- a lookout to exercise care to failure due persons approaching said street watch for ilant stop and failure thereof, intersection the aforesaid change or slacken its its the automobile course by due care the exercise of could have saw, after crossing dangerous plaintiff in the street seen, proximity to said automobile. coupled plea general denial with a
The answer was contributory negligence part on the follows:
(1) Hamilton avenue, Failure, approaching vehicles. look and listen (2) Running in Hamilton front of her was so obstructed that street car when view avenue approaching, any not see whether vehicle was she could portion of said of Hamilton west avenue into any vehicle could and when drivers running approaching; immediately in see her APPEAL REPORTS,
Flacli front of defendant’s automobile and so close thereto stop impossible that it was said automobile before striking her. reply put up
The issue new matter set answer. jury
At a trial a awarded verdict for four judgment thousand from a dollars; on that verdict de- appeals. fendant
The facts disclosed are: Hamil- ton avenue and the Hodiamont tracks intersect each angles. right other at The Hodiamont street line private right-of-way runs east and west on a Hamil- public running ton avenue is a north and south.. *7 Two street car tracks on Hamilton were maintained av- right-of-way enue on and also of the Hodiamont line. The eastern on Hamilton track, for avenue, was- used northbound and the western track for southbound cars. The on track, southern the Hodiamont line, was used eastbound and the track for northern westbound cars. stopped, The northbound take on let off cars and vto passengers, on the south side and the southbound cars on the north side of the Hodiamont tracks, eastbound on cars the west side and the on westbound cars east side Hamilton avenue tracks. Hamilton av- point thirty-six enue, accident, is feet wide right-of-way curb curb and Hodiamont thirty feet wide. The width of the tracks is five feet ten The inches. between on Ham- distance the tracks eight ilton avenue and Hodiamont line is four feet inches respectively;' two six feet inches and and the distance from the west rail of track, Hamilton avenue, to the west is ten feet inches; curb and five from the south rail of the distance the eastbound track, right- line, on the Hodiamont to the south line of the said of-way is about six feet six inches.
The evidence further Hamilton av- disclosed that enue, its intersection with the Hodiamont street car point, tracks, was a much transfer' used y. Flacli
pedestrians, customary that it passengers, alighting intending from northbound Hamilton cars and to board eastbound Hodiamont cars, south cross line, the Hodiamont tracks and north of the south Hamilton avenue. prior passenger
Just to the accident awas on a northbound Hamilton avenue car. She intended to board an'eastbound Hodiamont car at the intersection of Hamilton and the Hodiamont tracks. When the north- stopped car Hamilton reached bound said intersection it on the south side of the Hodiamont tracks, and as plaintiff alighted platform from the front thereof, she standing observed a southbound Hamilton car on the north side the Hodiamont tracks and an eastbound standing Hodiamont car on the west side of the Ham- ilton avenue tracks. She further observed that these purpose cars had taking let- ting passengers off and that Hamilton avenue between standing these three cars was free of vehicles. Thus noticing (and the situation intending before her to take car) passed eastbound Hodiamont immedi- ately around the front end northbound hurridly walked west, and about four feet south of the Hodiamont tracks, front of the southbound point reached somewhere between the west rail *8 of the southbound track and the west curb of Hamilton seriously injured avenue when she was struck being defendant’s automobile, which was driven south- wardly. prove
There was evidence to that the automobile; operated being at time of the the was accident, in excess proceeding, according of the ordinance and was high thirty- witnesses, to some a rate of as as per five miles tending hour. There was also evidence past to show that said ran automobile the southbound standing stop- Hamilton car while it was ping place, purpose taking for the letting on and off passengers; any given no that kind was APPEAL REPORTS,
Flach. chauffeur it crossed before as the Hodiamont All the was the southbound tracks. that car stopped north Hodiamont had side tracks, the. passengers; purpose taking letting off for the to car or not the issue as that was whether the automo- past standing driven bile was it while it remained aforesaid. close of
At the case the defendant offered, whole give, court to an instruction in na- and the refused of demurrer to evidence. ture Defendant contends given, this instruction should have plaintiff guilty that the reason was herself of contribu- negligence tory as a matter of law. plaintiff
At the trial testified that at the she time track in front of started cross the the northbound car she and southbound standing noticed the car southbound supposed coast was because clear, required vehicles to remain she knew the ordinance which rear of a street take at the passengers, standing remain off and to until on or let motion; car resumed that she did not street know car but that southbound started she cer- when the got not start before to the southbound did she tain it not look to north and that did or to the track; she across but looked west in after she started south Hodiamont street eastbound ear. direction assuming defendant contend Counsel standing, car be true that saw southbound pass yet ex- it, no should this did not and knew vehicles looking if and when the cuse her from see southbound duty imposed started; her, car crossing car in the track, exercise southbound again ordinary safety, look and care for her own wap and whether she where the see having safety, that its failed still cross track could negligence guilty as a matter of so, law. do she light Viewing most evidence, must, we every admitting fact as true favorable to *9 y. Ball. Flack n andinference reasonably may there- that be deduced plaintiff a matter of law, that hold, we cannot from, negligence. contributory guilty of was evidence to the be noted that there effect It will standing car remained that the southbound the time plaintiff and. that the automobile, the was struck city ordinance, of the was driven automobile, past violation will, high standing speed. rate of It the car at she that started to cross be further noted in front of the and southbound northbound track, standing the southbound car about six feet saw car, tracks. Hodiamont She knew that the dist- north had to travel cross track ance she southbound fifteen feet and car was about that southbound had twenty-seven motion, after it resumed travel, about it reach line travel she feet before could intended presumed no she also southbound vehicles take; passed southbound while would be driven street car standing, car remained but that all such said vehicles remain at the rear of said street until would car viewing situation had resumed motion. Thus car again her look cannot failure southbound southbound negligence contributory as matter of law. track, plaintiff’s According en- she was safely dangered car. She had crossed the southbound ample to cross and would have had time car tracks perfect safety, defendant had if observed the street twenty-five city only had about ordinances, as she (if standing at the while the automobile to travel feet proceed car) start and of the had to rear southbound seventy her Under reach line of travel. feet to about right presume had circumstances driving or- observe the an automobile would one by remaining at the rear dinance motion. such car resumed car until negligence question of We hold jury. [Carradine Ford, one *10 400 209 APPEAL REPORTS, Ball.
FlaeJi Y. Bongner Ziegenhein, App. 285; 701, 187S. W. Ry. 147 S. Strauchon v. Met. St. 1112; W. 232 Co., 135 Mo. S. 189 14; Peterson, W. Cool v. Moffatt Link, S. W. Ginter ’Donoghue, (not report
v . O officially 179 S. W. ed) (not officially Crawford, Meenach v. ; 187 W. S. reported.)] the trial
At J. testified, one L. Caldwell on behalf of the defendant, he was the motorman of south- bound Hamilton car started this car as coming around the front of the end north- bound Hamilton On cross-examination, car.' counsel for plaintiff, impeach view contradict and this interrogated regarding, witness, him written statement days detailing he had made after few the accident his version of the occurrence. Defendant then offered to prove that this witness had testified date after the written statement, in the court correc- of criminal to the tion, Up same effect as he testified the trial. objection bn made, the court refused to allow testimony. urges defendant to introduce said Defendant that this action of the court error. appear
It does not ns that record before the written statement introduced evidence, the matters therein contained were inconsistent with the testimony given of the witness at the trial. The witness, having impeached testimony therefore, not properly offered was excluded. testimony
Moreover, in the witness court given subsequently of criminal correction was to the date of the written statement and at a time when the motive imputed granting to him existed. Therefore, that the plaintiff proved declarations of the witness variance testimony given confirmatory with at the trial, they declarations not admissible were because were made posterior contradictory proved by to the declarations subsequent supposed to the time when the corruption interest or of witness existed. y.
Flack Griffey, c. 491, l. 11, U. S. In Howard Conrad v. says: question Supreme passing this Court evidence is that such been held “In court it has this subsequent made if statements were admissible, . . . proved side. on the other to the contradictions proper regards principle, ad test one So far as they missibility must be made is, of such statements influence no moral when at least under circumstances misrepresent . . . But them. color or existed to they subsequent other statements are made *11 prob possible, not if here, it is character, a different very them is for the inducement able, that make counteracting purpose This im first uttered. those credibility, pairs if made before when, force their subsequent they might to sustain the tend others, corresponding In with them. ... this they having prior in time, not been made do case, then, competent.” appear principle precedent not Griffey, (U.S.) Ed. 41 37; Conrad v. 14 L. [See, also, Stolp Legere N. Blair, 541; State, L. S. v. 68 III. v. 906; (1 Queener 111 Tenn. 77 v. 368, 1059; Morrow, Cold.) Caddy, 87 N. State v. W. Tenn.—State Hackley, Potty, 21 Kans. Robb v. v. Wend. 50.] Company, Kelly v. Insurance State by Maggard, the other cited cases uphold defendant, counsel do him in his conten- in tion. it held cases that these where a While was proof impeached, by in- witness is of acts and statements testimony prior given at the trial, consistent with his correspondent with the witnesses his .statements purpose testimony are admissible of rehabilita- question in the facts these cases did not tion, raise presented nothing in the instant and we find- in case, that is in conflict these rule laid down cases Supreme Griffey, supra. Court in Conrad v. confirmatory It clear to us that seems to allow de- given sought to be such were clarations, in evidence tendency in the instant have direct would case, cor- A.—26 M. REPORTS, APPEAL Flack, y. Ball. pointed justice.
rupt This well administration Supreme hy in the Court of Tennessee case of out says: supra, the court where Queener Morrow, purpose statements, allow consistent “But giving support of the witness, to the credit made contradictory representations which it is after the put impeach sought in him, would power every unprincipled witness to bolster credit his just consequence escape perhaps of his own tergiversation.” falsehood and against point rule defendant.
We this assignment of next error Defendant’s is that giving part, in No. court erred instruction which, jury: told you find and believe from
“If, therefore, the evi- . . . as the the act of in front of Hamilton avenue the-southbound Hamilton avenue which had at the usual and stopping place -the north side the suburban car through agent . . tracks . the defendant, his driving servant automobile, started defendant’s ma- chine before the ear resumed motion and past high dangerous ran the same said car aat *12 speed, your . rate . . then verdict must be for ” plaintiff. the part The italics are ours and indicate that of the objection instruction which bound Hamilton made. is That the south- stopped, car avenue at the usual and stopping place, not an issue was of fact in dis- putes. stopped, the All witnesses that it testified so and theory the defendant brief that his admits “the the defendant to the that was effect the proceeding southwardly following automoblie was southbound street and the stop, street car came to a defendant’s automobile also stopped.” It was, therefore, not reversible error to as- sume in the instruction existence of a fact over which controversy. no there The controverted issue of was fact
Flaeh v. the automobile defendant started was'whether past and ran same motion car resumed street said issue to the submitted The instruction car. the said Company, c. 356-7, 211 Mo. l. jury. Transit v. [Davidson Company, Phelps 218 Mo. l. c. 580- Zinc 583; 109 W. S. Company, 203 v. Transit S. W. Sotebier Company, Taylor Iron Mo. 702, 102 581.] 34 W. l. c. S. challenges the correctness of instruction
Defendant jury. given to instruction Said reads: 4,No. duty that it driver of the
“You are instructed upon place or’highway a street a of an automobile and place pedestrians approaching a at which are accustomed upon highway likely be such or or are vigilant highway, keep such street or and a signal persons, give a watch and lookout and to approach warning of such machine. there- If, you find believe and fore, injured,
plaintiff, was struck and at the time she place upon pedestrians avenue at which Hamilton cross the said Hamilton avenue, are accustomed to at the time the exercise of reasonable care and was safety, diligence own that the for her defendant charge agent car in driv- servant in said and his upon ing said south Hamilton avenue the said machine keep approaching place same, failed said pedestrians vigilant about watch at and place aforesaid and failed to Hamilton at the avenue warning approach ma- of such of the you negligence if so act, find, that such chine, and agent part and servant, on the defendant and up- thereof run result direct injured, your verdict should be then on and ’ ’ plaintiff. city ordinance of St.
Section 1338 Louis introduced in evidence reads as follows: *13 Approaching
“Signals Motor When Vehicles Crossings, Etc.—Drivers motor vehicles all kinds APPEAL REPORTS,
Flacli v. Ball. approaching crossing rounding a or in shall, a signals public or corner on a curve sound their street, way warning give in to a a to other vehicles and approach.” pedestrians of their “crossing” contends Defendant the word reguar crossing; used in a this ordinance means place crossing, accident not a as that term is used the ordinance, and that there was, there- duty ap- no on driver to fore, sound a proaching place accident. objection considering
In to the instruction we need not determine what a within constitutes meaning ordinance. At time of the accident there inwas effect a requiring, every person ap- upon statute of this State upon pedestrian, proaching part a iswho the traveled any upon highway give timely of signal a sidewalk, a signaling.
with his horn or other bell, device for page [Laws 327.] of 1911, statutory
There was also another law in force at upon any person time, which made it incumbent upon operating public an automobile or across roads, highways places streets, or for much used travel highest degree very person use of care careful pre- would use, under or like similar circumstances, injury persons traveling vent death on or over or public places across such roads, streets much used page [Laws 330.] travel. of 1911, duty There was, therefore, the defendant as he approached plaintiff, pedestrian who awas and who part public keep vig the traveled of a street, to timely signal ilant watch and lookout her and warning. App. [Aronson l. Ricker, c. Company, S. 172 W. Johnson v. Traction 176 1193.] l. c. W. S. Appellant urges per- further that the court erred mitting objection a witness, over the of the defendant, testify as to the at which the automobile was *14 TEEM, 1922.
MAECH Sprinkle Fleming Est.
going This time of the accident. witness testified speed twenty of an the machine was miles hour. testify qualified this witness was not It is contended speed of car because did have such he not judge speed him to therefrom the as to enable a view moving. one it Witness was hundred at which was fifty it feet he saw back automobile when strike plaintiff. he had driven He automobiles testified many years had occasion and often to observe them speed. judge of The of their rate and could running an is a matter exclus- which automobile is testimony. expert ively for to whether witness As judge it able the view he weigh jury; for it to matter for the it was was a testimony it credit as deemed it such entitled proper. [State ruling of the court We think to. Mo. Aston v. St. Watson, S. W. App. Company, 105 Mo. Louis Transit S. W. Company, Ottofy v. Trust 428.] Finding no reversible error record the Com- judgment that the affirmed. missioner recommends opinion C., PEE CUEIAM.—The Bbueke, opinion adopted judgment The court. county according- the circuit court St. Louis is ly Danes, con- Allen, affirmed. P. J., JJ., Becker cur. Appellant, H. SPRINKLE, v. ESTATE OF
THOMAS Respondent. ALFRED FLEMING, W. Appeals. Opinion April 4, Court
St. Louis Filed Splitting: JUDGMENTS: of Action: Same Parties Causes Judgment Action Barred. Claim: First on Merits: Second Where present parties privies, same or tkeir tke two tke same actions