*1 ruling holding in so bar, inferring record the case at arbitrary. trial court trial be affirmed. granting order new should Dalton, GG., concur. Bradley It is so ordered. C., opinion foregoing
PER CURIAM: —The Osdol, Van judges All the concur. adopted opinion of the court.' Sparks 38939. 182 Appellant. David R. Auslander, v. Sol (2d) 167. S. W. July One, 3, 1944.
Division Denied, September Rehearing 5, 1944/ Nangle, George Gantner and William Leahy, John J. John appellant. O’Herin
Moser, Bearing Bearing Marsalek & respondent. and W. B. *3 BRADLEY, pеrsonal injury alleged C. Action for have to been by caused defendant’s negligence; judgment verdict and plaintiff for $20,000, and appealed. defendant Error is assigned: (1) On the refusal a the evi- demurrer to dence; (2) argument. 1; instruction No.
Plaintiff injured car, rear him, his driven struck the of defendant’s ear, which parked highway.' Plain- partly tiff received a brain injuries. injury other was such The brain that he was never ablе accident, anything to recall pertaining to the shortly or preceding, through period days a several thereafter. Alton, Illinois. On December Plaintiff resided p. (after
driving dark), from Alton to St. Louis. About 7:15 m. alone Missouri, driving highway and was south on had crossed over to County. highway place Louis At of accident the had 99, St. and an 8 foot dirt shoulder on each side. De- paved traffic lanes shortly aсcident, driving fendant, prior to the had also been place had accident, south and alone on change tires, car flat, parked He had no tools to so his front. (east) on the wést side of the with the left wheels pavement a foot and half on the and the remainder the car on rear, burning lights, the shoulder. Defendant said his front an accident, the time of but there was evidence from which raining might shortly contrary inference to be drawn. It had been accident, was wet and the shoulders before the and the muddy. were soft and according parked he, evidence,
After his stood defendant his car to immediately facing north, fender, and tried east of his left front cars; get aid. flag wanted to to service station for southbound up. having any Six or Not luck passed seven southbound сars standing (so might from he was he decided the inference drawn) change traveling west plaintiff’s car, As stands.' others) lane, approached north, (as he told from the lane; witness “stepped pavement” out on the west he said to one car) wasn’t up (plaintiff’s that he had mind “made one going get got by; got out so he stop out there get me.” couldn’t plaintiff if the
Plaintiff’s instruction No. 1 verdict for directed a driving place found: at the That south *4 side accident; (2) it dark and the shoulder on the west that was that (3) his car on slippery; parked was wet and that defendant had on the pavement part west side of the and highway, part the the on shoulder; place “defendant plaintiff approached that said as suddenly, warning to moved onto unexpectedly and without plaintiff’s automobile;” highway said of path and into the “that was a northbound automobile and at said time there burning south;” (6) and headlights, approaching place from the moving plaintiff’s auto- path “that defendant’s act in into of so the you and caused mobile, find, emergency plaintiff if so an for created it the change him to the and to drive on course of his automobile auto- with defendant’s highwаy west of said and to collide shoulder knew, mobile;” by or the exercise of ordi- (7) and “that defendant so into that to move nary part known, care on his would have an you find, would create path automobile, if so plaintiff’s the of be plaintiff cause emergency plaintiff probably and would negligent, find, defendant moving, you if so injured and that so directly caused part any, if his on negligencе, and that such general plea injured.” The answer was of denial negligence. contributory way (plaintiff) “I flag testified: tried to the same
Defendant hands), I (with his noticed that about feet 'I did the others feet) my leaving away (tire showed about 100 from car he was marks getting shoulder, coming my highway and towards the onto the hitting Well, stayed then I if I me help car. realized he can’t me; funning probably arid kill so I left there and across the started highway (defendant road toward the east side of the denied any place pavement except he on close to left fender was at the his ran). until he car started Just about time his left the I the plaintiff’s to run to the east side. When I saw car was about first headlights my on; 200 feet from I started time highway probably car to run across the between my and 125 feet nоrth of on the shoulder.” car, further I Defendant testified: “Just as reached about the center highway (20 edge pavement) of from of feet the west (plaintiff) my my car, was part hit back of car. When he hit pushed By time, just out in the center of road in back me. of (his own) center, as I another reaches center and car reaches this enough approached just get car out frоm the and I had time south, of way, get (east side) the other ear’s on the other side highway right when center my this northbound car hit car right Q. highway your side. And car located where with reference to the east lane at the time it was struck this other (the northbound) just (east A. car? It was about other on the side side) of half shoulder a little bit probably on the highway I was about center of when I headlights first saw the . car. . . When northbound northbound car (northbound) hit mine its hood came off and missed by hair; graze just me went back my head; could feel it me.” “Q.
On cross examination testified: When did you run highway? Sparks’ Mr. A. Just as seen soon leaving you car highway Q. Now, and going on the shoulder. say you you? Q. Now, ran out on the A. Yes. highway, don’t Quintal car) was the car did that? northbound {the Oh, maybe (italics ours). A. (south) a hundred back me Q. A hundred you? my feet back A. Bаck car when starts leaving Q. Quintal off getting The on the shoulder. Sparks A. Q. Quintal’s ear? car. was Mr. automobile Where *5 you when highway? Quintal ran car out on the A. I didn’t see the until I was in highway. Q. the center of was it then? Where A. Then it came; up. came up there is a it little knoll Q. How maybe twenty far feet. away? Oh, is that little knoll A. Q. Twenty feet? how Thirty feet, exactly A. I know maybe; don’t
182 many that, like that.” something feet. It is Defendаnt also said recollection, best of car was in second lane the northbound headlights. east,- quite from center, not 'to the and that its were burning. highway, The both north and south’from the of-ac n cident, straight distance, was for some and'there was no evidence high enough prevent seeing headlights knoll was one car. northbound “Q.
On As further cross examination defendant testified: you you ran acrоss the weren’t least ten to fourteen highway, your No, Q. feet north of automobile? A. no. Where were you your A. I front reference to automobile? was in the Q. right . my car, across, the car. How ? A. I left front run Q. By at the fender. In front? fender started front A. the front right Q. run across. As the car across started , right front fender A. would be towards east ? The front fender ? talking Q. Which car you are about? A. what Your car. As it left - highway? Q. pushed highway. As it was When across-the A. it Q. was going Quintal hit? As it was hit and across where the traveling. car right A. The fender would be toward south. Q. right Toward you south. A. Now, fender ? n Q. right Yes. You were fender? A. Yes. The car hit right in Q. back of actually me. Weren’t ten to from fifteen n feet on the (north) Q. other side A. No. of the car? And ran ” your out from behind automobile ? A. No.
Defendant, it seem, placed would himself-to the south car оf his moving it and were so, east across the If it is not quite clear how the hood of the car, northbound off, came the moment of impact car, with defendant’s came so close him. Dewey Quintal, car, driver of the northbound wit- ness, years. had known defendant for some two or three resided He in Alton, and was returning Quintal’s from St. Louis. wife and Quintal others were in his car. testified: “I driving north in the 50 per hour; east lаne at or miles I saw a car (defendant’s) coming me, across in front of from west towards east; it was north about front me. -I saw time;-he defendant at about feet north of his car and was'running from east; west (from he was in the third lane west) I when first saw him. my front automobile collided with the side of change car. my defendant’s tried to the course of automobile, but didn’t have time. When I ran into defendant’s car ’’ he was about feet north of it. Quintal,
Mrs. a witness for “I saw testified: this car (defendant’s) eoming; coming right it was at our it wasn’t com- straight; ing I think southeast; it was to me like seemed it was almost in the center highway; of the four lane defendant at saw time; running he was and was and was
183 lights any on it. I was ear didn’t have north of his 14 feet Q. And, how seat, side, then, of our car. now back left it when first saw of the west side far over the your Well, A. car) coming there from left? (defendant’s it middle of the four-lane. my judgment, in the say, to the best of would any right plain it was to See didn’t have coming for me and it It four lane headlights the center of the on. This car was in heading for ear.” (east) lane, and was our on the outer We were witness, testified Osthoff, deputy plaintiff’s constable and Emil accident; that defendant told to the scene of the he went thаt with'two wheels on the having flat; parked “he there about he said ’’ showed; plain- that is, side, tracks also concrete, left and the that shoulder, pavement left car, according the tracks tiff’s impact. point 100 north of the defendant, testified Tracy, deputy witness for James sheriff and accident; Ms evidence as where he went to scene of the that Osthoff; as that of plaintiff’s car was about same pavement 100 visibility was “a further” than feet. he also said that little argues judgment supported by is not that Defendant solely speculation says (1) He that is based evidence. substantial only by supplied facts can be conjecture; and that essential inference; basing (3) that there no substantial evidence inference on negligence relied tending to show a between the causal connection plaintiff’s injuries; tends to upon and and that evidence inferences, some support equally several factual either of inconsistent proof negligence. of which result failure judgment contention, then the If defendant is correct in either (speculation & cannot stand. Weaver v. Mobile Ohio R. Co. 1105,
conjecture), 223, (2d) 1110, 120 W. and casés Mo. S. cited; Ry. (inference on City Hamilton v. Kansas Southern Co. 622; Hаmilton v. St. Louis-San inference), 714, 250 Mo. 157 S. W. 123, connection), 318 Mo. Ry. (no of causal Francisco Co. evidence support 787; (that tends to Lappin S. W. v. Prebe et al. evidence inferences, etc.), factual equally either of several inconsistent cited. (2d) 511, 131 S. W. and cases there Mo. c. south; driving plaintiff was may be taken as conceded that It that it was shoulder on the west side was wet dark and оf the his car on west side slippery, parked that defendant n demurrer, taken as it will be purposes pavement and partly on parked established that the car was 5th, 6th and 7th partly 4th, on the shoulder. The trouble lies hypotheses plaintiff’s submitted in instruction No. 1. lane, plaintiff approached Defendant west traffic away, about 200 feet
and that he first ear it was saw left the and the as to thе evidence, De- from 100 150 feet. upon shoulder, went varies entirely “got according evidence, that said, to the so he fendant get by support Surely me.” this would couldn’t (plaintiff) path approaching moved “into car.” inference speed rate of at which plaintiff no evidence as to the There speed, but driving he reduced the result of the or as to whether *7 suggest speed. Also, upon defendant’s car would considerable impact foggy is, objects, visibility, that it was of the evidence was feet, 100 understand, limited which was the dis- as to about we point plaintiff from the tance, tracks, estimated the tire where' point impact the with upon went the shoulder to of defendant’s car. portion of Also, will be noted from the italicized defendant’s evi- dence, highway, that when he on the that he said ran out supra, me,” car was “about feet back of the same distance northbound he, upon in him when went plaintiff, front of shoulder, according And to the estimate based on the tire tracks. it will be noted that 'defendant said that the northbound car was in lane from east. the second
“A demurrer admits the truth the evidence to the evidence of directed, admits all to which thе demurrer is and also inferences of fairly jury might evidence; fact which a draw from that and such only can demurrer be sustained when the facts in and the evidence fair strongly against to be drawn from such facts are so inferences the party at whom the demurrer is as to leave no room for directed al., reasonable minds to differ.” Goslin v. Kurn Mo. et (2d) 79, situation, W. S. and cases there cited. The fаvorably most plaintiff, up stated for adds to this: wet, foggy, visibility objects feet; plaintiff It is of is about 100 speed from the in approaching north considerable the west lane; unlighted away when he was about 100 feet from defendant’s car, parked on west side with left wheels about a and a half foot pavement, up flagging; on the in the west lane defendant shows car, headlights burning, the same a is abоut 100 time northbound feet south of the of accident and in second lane from the east, approaching per hour; and is at 45 50 miles or situation, upon went struck rear the west shoulder and of de- car, resulting injuries complained fendant’s of.
It is true that after defendant had said that the northbound car 100 feet ran south of when he out he also said that he did until not see the northbound car “was highway.” center of the party single prove a testimony
“Where relies on the of a witness to given a issue, contradictory and the of such witness is testimony conflicting, tending prove issue, one version thereof tending other disprove it, explanation contradiction, no tending and no other fact or circumstance in the case to show which version true, made, is case and the should evidence no guess which statement witness speculate or permitted to not be if, case, a in such the con- hand, the other accepted. On should reasonably contradictory statements of the witness are flicting and' circumstances in are other facts and the case if there explained, or true, and from a story of the witness is which tending to show' and circumstances in evidence all the facts fair consideration witness reasonably which statement of the determine jury could credibility of witness and the accepted true, then the as should be testimony questions jury.” are weight to his given to be cir- think facts and supra. We that there are Kurn al., Goslin et v. said as to where make what defendant here which cumstances question for the he ran out car was when northbound who have misunderstood his counsel hardly could jury. Defendant (de- (northbound) was when he Quintal car as to where the inquired simple question, highway. plain, this fendant) ran To me.” Then back answered, maybe about 100 feet “Oh, did defendant said two, appears, supra, or question after center car until he was in the not see the northbound *8 Quintal got and plaintiff the names of likely defendant It not that is with acquaintеd answered, he was first because confused when he acquainted plaintiff. with Quintal and was not plaintiff’s fit cannot be to that all facts here made It is true that when glove. For if be said example, case a like north- accident, the point north of the of feet point, plaintiff’s then about 100 feet south of bound ear was then for it defendant’s car in time the 100 and car must travel strike north- impаct of the be knocked 25 feet the time of the to some con- distances here car. But all these ear with defendant’s bound than or less estimates, may have been more they cerned are estimates. that all inferences evidence,
“It with of the only, is when the support insufficient to jury reasonably therefrom, are may make a direct finding court is authorized to a for the that lеft for A should therefore be verdict for defendant. case a follows as jury the conclusion proper instructions, under unless any may be view that recovery matter had on of law that no can be v. Frese to establish.” taken the facts which evidence tends of not 654. It was (2d) 652, c. (Mo. Wells et al. 40 S. W. l. Sup.), accident of possibility “exclude the necessary plaintiff’s that evidence to it is sufficiеnt liable, a but or of which is not cause for injury that make a evidence submissible case if is substantial there et al. v. liable.” Cech from a is resulted cause for which defendant c. (2d) 509, l. 601, 20 S. W. Co., Mallinckrodt 323 Mo. Chemical 5th, 4th, think that the ease, we present Under the evidence jury. Frese for the questions 6th hypotheses, and 7th supra, Wells, supra; Messing Judge Dolph v. & Drug v. Co., Mo. (2d) 408, 417; 18 S. W. Cech et v. al. Mallinckrodt Chemical suprа. Co., complaint plaintiff’s instruction is that is not
supported question ruled, the evidence. That supra. says Defendant permitting that court erred plaintiff’s in argument to an counsel make “which a plea constituted damages;” punitive telling in “place them plaintiff’s position they selves in that determine the amount damages;” (3) complaint would as respecting want is made what argument plaintiff’s counsel said that about defendant’s evidence liquor the odor was noticed after breath the accident. complaint no verdict, There is on the amount hence grounds place complaint argument. is no for the first two following In the closing occurred: “Mr. argument, Dearing: you keenly; power I tell I feel I this case wish had the you today. men inflame I am I know God knows Dave-Sparks why and Í know his condition. And should I with you effort have to come before twelve fellow men and present go bring (hospital record) I didn’t case? out and record some go someone said there was a out and where bring smell alcohol. didn’t deputy trying a say sheriff here and that man was to start a ignition (defendant’s an with then automobile off. And coun sel) says, saying ‘I (plaintiff) comes here and am not that intoxicated; -may something may it; had with that have to do something say bring lawyer to with not have had do it’-—I a shouldn’t thing justice, particularly kind of a into court got object argument highly helpless man-^-Mr. O’Herin: I lawyer. respect to the improper duties of The Court: Overrule objection. exception.” Mr. Note an O’Herin: argument might prejudicial. An be It improper still not *9 jury’s find prejudicial would not be unless it had sоme effect ing damages stated, found. And as for or on the amount of verdict, complaint supra, no is made on the amount of the hence argument prejudicially not be affected the amount could said say damages. record, Under this it would not be reasonable argument materially arriving a verdict that the affected the large respecting plaintiff. trial is allowed discretiоn court The 202, al., 337 Mo. argument, Ross et Kelso v. W. A. Construction Co. think that discretion (2d) 541, 85 S. W. we do not was abused. might argument, be objection the inference
From made to the about the duties solely what was complaint drawn that the might jury. How- lawyer argument affect the and not how the irrespective this. ever, ruled the have we Dalton affirmed, it is judgment should so ordered. CO., concur. Osdol, and Van foregoing oрinion by Bradley, C., adopted
PER CURIAM: —The opinion judges All concur. as the court. F. Relation and to the Use of William Missouri,
State City Collector of the Revenue within and for the Baumann, v. Irene Missouri, St. Louis in the State of Marburger, Oreon Buckingham Trustee, Scott, Company, Investment Emma E. Bessey Higgins, Horsley, William Emilie Hubbard, K. Ross. Moore, B. Runz, Carrie M. Amelia Meta Stoelt Stoelting, C. Missionary Clifford, ing, Society, United Christian Emma Kelly, Sanders, Adelia Frank Oreon Pickett, Mrs. C. A. L. Yocum, Appellants. E. Lolah F. and M.C. Steed Scott, (2d) 38941. 182 S. W. 163. One, July
Division
Rehearing September Denied, 5, 1944. Peper
Martin, <& Peper and Christian Martin B. for appellants.