358 S.W.2d 828 | Mo. | 1962
The parents of 2-year-old Ricky Rollins-sought $25,000 as damages for his alleged wrongful death. Shortly after noon on October 20, 1958, Ricky was killed as the result of being run over by a truck owned and operated by John Postlewait, defendant below. A jury returned a defendant’s verdict. Plaintiffs have appealed, contending that the verdict was contrary to and in conflict with the physical facts and was not supported by substantial evidence; that the trial court erred in giving instruction 6;
Defendant, a farmer, parked his southbound pickup truck on the east side of two-way Forest Avenue in Kansas City approximately in front of a house numbered 1319. The truck’s left front wheel was angled in toward or against the curb and the left rear wheel was one to two feet from the curb. Defendant was engaged in selling eggs. In maneuvering his truck preparatory to driving away from his parked location, one or both the left wheels passed over Ricky’s body.
There were two versions of the facts. One tended to support the evidentiary theory submitted by plaintiffs to the effect that when defendant returned to his truck immediately before moving it, Ricky “was sitting on the east curb of Forest Avenue beside defendant’s truck and that defendant backed said truck upon and over” him although defendant should have seen Ricky sitting there in a position of danger and could have avoided running over him by warning him or by stopping the truck but negligently failed to do so.
The other version of the facts tended to support defendant’s evidentiary theory to the effect that when defendant returned to his truck from the west side of the street there were no children in the area around the truck, including the adjacent curb and parkway and sidewalk; that after defendant started the truck’s motor, he looked out the driver’s window and along the side of the truck and there were no persons visible; that he subsequently looked back over his right shoulder and through the rear glass of the cab which showed the street except that part immediately to the rear which was hidden by the truck itself, and he saw no person. Defendant said that he then turned the front wheels slightly to the right preparatory to backing in order to clear a northbound automobile which had been parked in front of his truck, and that, because his foot was then on the clutch pedal, the truck rolled forward four or five inches; he then let out the clutch pedal and backed six to eight feet at a speed of three or four miles an hour when he felt a vibration and at the same time heard a woman yell that he had run over a baby; he tried to stop the truck immediately but, nevertheless, backed another six feet; he turned off the motor but inasmuch as he still had his foot on the clutch pedal the truck again rolled forward for about two feet until it was stopped. Defendant said the top of the tail gate on his truck, which was up at the time, was 3½ or 4 feet above the ground and Ricky was not that tall.
The essential facts of defendant’s version were corroborated by two witnesses. One was the driver of the car which had been parked in front of the truck, who observed the area immediately before the accident and saw no child or children thereabout until he heard the woman scream and thereafter saw the boy under the truck. The other was a woman sitting on a porch across the street from the truck who was an eyewitness to the casualty. She said that just as the truck started to move, she saw Ricky standing at the rear of the truck on the left side and almost against the tail gate; that the truck backed, knocked the boy to the street and, by the time it stopped, the left rear wheel had passed over the boy and the left front wheel was upon him until the truck rolled forward; and that when the truck finally stopped the body was under the truck’s cab.
Plaintiffs contend in their point 2 that the verdict was contrary to and in conflict with the physical facts and was not supported by substantial evidence, and in point-4 that the verdict and judgment are against the weight of the evidence. We shall consider those contentions together.
As best we understand plaintiffs’ supporting arguments, they seem to contend that inasmuch as the truck was parked on the wrong side of the street headed south in violation of certain ordinances introduced in evidence, and inasmuch as (so
Plaintiffs’ verdict-directing instruction 1 hypothesized that when defendant returned to the truck “there were three children playing in plain view on curb and parkway near said truck” and that at the time “defendant got in his truck and began backing it” Ricky “was sitting on the east curb * * * in front of or near 1319 Forest Avenue beside defendant’s truck and that defendant backed said truck upon and over” him, and that defendant saw or in the exercise of commensurate care should have seen Ricky “sitting on said curb and in a position of danger of being struck by said truck” in time to have avoided striking him by warning Ricky or by stopping the truck, and that if defendant negligently failed so to do and as a result of such negligence plaintiffs’ child was killed, etc. (It is true that the fore part of instruction 1 hypothesized the fact that defendant parked his southbound truck on the east or wrong side of the street in violation of specified ordinances but the instruction thereafter ignored the ordinance violations in hypothesizing proximate negligence.)
Defendant’s instruction 6 was: “The court instructs the jury that if you find and believe from the evidence that the deceased infant was not sitting on the east curb of Forest Avenue at the time defendant backed his truck upon and over him, then your verdict must be for the defendant Mr. Postlewait, regardless of any other fact or circumstance shown in evidence.”
Plaintiffs contend the trial court erred in giving that instruction for several stated
Plaintiffs chose by instruction 1 to require the jury to find as prerequisite to a plaintiffs’ verdict that while Ricky was sitting on the east curb of Forest the defendant backed his truck upon and over him. Instruction 6 told the jury that if it found Ricky was not sitting on the east curb at the time defendant backed his truck upon and over him, its verdict would be for the defendant. It is well established that defendant was entitled to such a true converse instruction which exactly conversed an essential element of plaintiffs’ instruction. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 234 [8, 9].
Plaintiffs say they were deprived of a fair and impartial trial because of the alleged failure of veniremen to answer fully on voir dire. As we understand, plaintiffs argue that because they are Negroes, the eleven members of the jury (who we assume were white) who decided for the white defendant, must have been prejudiced against the plaintiffs because of their race, else the jury would have found for plaintiffs. There is no semblance of a basis for any such contention in the record. Plaintiffs’ counsel asked on voir dire whether any panel member was prejudiced because of the fact that Negroes claimed damages against a white defendant. By his silence each panel member indicated he had no such prejudice. As noted, defendant’s verdict was supported by substantial evidence. There was no fact or circumstance giving rise to a possible inference that because of a defendant’s verdict racial prejudice must have existed.
Plaintiffs’ counsel inquired on voir dire whether panel members were acquainted with the various lawyers in defendant’s counsel’s law firm and a juror (later foreman) indicated that he did not know any of those lawyers. Plaintiffs attached an affidavit to their new trial motion to the effect that the foreman did not truthfully answer the question propounded in that he concealed pertinent facts concerning his social relationship with a lawyer in that firm, and that the lawyer and the jury foreman had appeared on the same Shrine program and had attended rehearsals therefor. In a counteraffidavit the juror in question asserted that he did not know the lawyer; that he had been informed that the lawyer was a member of a certain Shrine and was to appear on a certain program; that he had had no connection with the lawyer on the program or at the rehearsals therefor, and had never seen the lawyer to know him; and that the fact that he was on the same program as was the lawyer (along with many others) did not affect the juror’s decision in the case. At a hearing on motion for new trial, plaintiffs’ counsel adduced a copy of the Shrine program which contained the names, among many others, of the lawyer and the juror. No other evidence was adduced.
There is nothing in the record to support plaintiffs’ assertion that the juror concealed pertinent facts and, furthermore and in any event, the trial court reasonably could have found from the affidavits before it that, irrespective of all else, the juror did not intentionally conceal any information on voir dire and thus the trial court did not abuse its discretion in overruling plaintiffs’ motion for new trial on the stated ground. Hornberger v. St. Louis Public Service Co., Mo., 353 S.W.2d 635, 642.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.