OPINION
R.J. Slater appeals the judgment entered after the jury’s verdict in favor of Richard and Elizabeth Zempel on their negligence claims arising out of a collision between Slater’s car and Richard Zempel’s motorcycle. We affirm.
I. BACKGROUND
This accident occurred on a clear, sunny day in October at the intersection of Route B and Seeburger Road in St. Charles County. The terrain in that area is flat, and the fields at that intersection were cleared on the day of the accident. Richard Zempel and his 11-year old son were traveling in the eastbound lane of Route B on a motorcycle, and Slater was traveling south on Seeburger Road in his car. Slater had a stop sign, but there were no traffic signals applicablе to Zempel. Slater testified that he was very familiar with
Slater testified that he stopped “long before” he got to the stop sign and looked to the left and the right many times. There was a lot of traffic, and after some of the traffic cleared, he advanced past the stop sign, but not onto the paved portion of Route B, and again looked left and right many times. Slater remained stopped just past the stop sign until the traffic cleared. He testified that he had a “sufficient view” of the eastbound lane, then he looked to the westbound lane again and, seeing that all was clear, proceeded at about five miles per hour through the intersection, continually glancing left and right as he crossed Route B. When he was leaving the intersection, there was a crash. He agreed that a portion of his car was still in Zem-pel’s lane at the time of the collision, but Slater said that he never saw the motorcycle and had no explanation for why he had not.
The first officer to respond to the accident testified that Zempel’s motorcycle was lying in the eastbound lane of Route B with extensive front-end damage and that there was a skid mark starting 84 feet, 10 inches from the intersection and ending at the motorcycle. Slater’s car was off the road against a telephone pole. Over Slater’s counsel’s objection, the officer discussed a diagram attached to his police report depicting the “area of impact;” it showed Slater’s car positioned in the middle of the intersection with half of the car in the westbound lane and half in the eastbound lane of Route B. Slater’s counsel also objected to questions in which the officer was asked to indicate where the impact occurred, and Zempel’s counsel withdrew those questions. But the officer did testify that he had determined the area of impact based on the motorcycle’s skid mark. On cross-examination, Slater’s counsel asked the officer further questions about his determination of the point of impact. The officer first explained that the motorcycle hit the car partly on the passenger-side door and partly on the front fender. The officer agreed with Slater’s counsel that, based on where the car was hit and the officer’s measurements, at least the front three and half feet of Slater’s car was through the intersection when the motorcycle first made contact with it. On re-direct, the officer further explained that, based on the length of Slater’s car, it was still blocking the entire eastbound lane of Route B at the point that Zempel’s motorcycle and the car collided.
The officer also testified that he detected a “slight” or “faint” odor of alcohol on Slater when talking with him after the accident. When he asked Slater if he had been drinking, Slater told him that he had a “couple of beers at his river house.” Slater denied drinking anything on the day of the accident and denied telling the officer that he had. The officer testified that Slater passed an eye gaze nystagmus test and a portable breath test. Ultimately, the officer determined that Slater’s blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. The officer also stated that alcohol affects different people different and has the ability to affect reaction time and perception.
I’ve been going on 15 years, and the alcohol — it just depends on the person. We can get a guy that’s standing out there drunker than a skunk and he can do that field sobriety perfect, but it just depends on — and if they’re an alcoholic, they can handle themselves better, so it all depends on the person.
The officer confirmed that because alcohol was not mentioned in the police report and Slater was not arrested, the other officer did not believe that alcohol contributed to the accident.
Due to closed-head injuries from the collision, Zemрel and his son had no recollection of how the accident occurred. This had been the first long motorcycle ride outside of their St. Louis City neighborhood that Zempel had ever taken with one of his sons. Zempel said that “whenever” he takes his sons for rides on the motorcycle, he has them read the speed limit sign to him and then he puts the needle of the speedometer on the speed limit. He said that it was his habit when riding with his sons to always obey the speed limit:
I never break the speed limit when driving a motorcycle and especially with my son — with any of my children on the back which I didn’t do very often anyway. I didn’t take the kids for rides. This was the only time we went for a long ride outside the neighborhood. Zempel’s son testified that he had ridden on a motorcycle with his father “maybe 20 or 30 times” and that he had never seen Zempel go over the speed limit while riding with him. He also described how his father asks him to read the speed limit signs and then he looks over his father’s shoulder to see the speedometer.
At the conclusion of the Zempels’ case and at the close of all evidence, Slater’s motions for directed verdict were denied. The jury was instructed to assess a percentage of fault to Slater if he either failed to yield the right-of-way or failed to keep a careful lookout. The court also instructed the jury to assess a percentage of fault to Zempel if he failed to keep a careful lookout or knew or should have known that there was a reasonable likelihood of collision in time to swerve, slow down or sound a warning, but failed to do so. The jury assessed 60% of the fault to Slater and 40% of the fault to Zempel and awarded the Zempels damages. Slater’s motion for judgment notwithstanding the verdict, along with other post-trial motions, was denied. He appeals, challenging various evidentiary rulings and the sufficiency of the evidence.
II. DISCUSSION
A. Evidentiary Rulings
We will not disturb the trial court’s decision regarding the admission of evidence absent a clear abuse of discretion.
Fairbanks v. Weitzman,
1. Evidence of Slater’s Alcohol Consumption
Slater challenges the admission of the first officer’s testimony regarding the odor of alcohol and Slater’s cоnsumption of
Evidence of а party’s alcohol consumption is admissible “if otherwise relevant and material.”
Rodriguez v. Suzuki Motor Corp.,
Stewart involved a head-on car collision, and the case was submitted оn the drivers’ comparative fault. Id. at 636-37, 638. Evidence of the plaintiffs intoxication was admitted into evidence, but the trial court refused to allow evidence that the defendant drank four beers at a bar before the accident. Id. at 637. The officer at the scene of the accident testified that the defendant “ “was not under the influence of alcohol that in any way caused or created the accident.’ ” Id. at 638. Due to his injuries, the plaintiff had no recollection of the accident or the events before it. Id. at 637. This Court reversed the trial court’s finding with respect to evidence of the defendant’s alcohol consumption based on the “relevant and material” standard in Rodriguez:
Evidence of defendant’s consumption of alcohol prior to the accident bears on his ability to see, hear, perceive and observe his surroundings and would enable a jury to be more fully informed in order to determine the relative fault of the parties.
Id. at 640. This evidence was especially relevant because the defendant was the only witness who could testify about what occurred before and during the accident. Id.
As Slater points out, there is not similar evidence of the plaintiffs intoxication in this case. While that
may
influence a determination of the relevance of a defendant’s drinking for purposes of comparative fault, the Court in
Stewart
did not rely on that evidence. Rather, the argument on appeal in that case, and the Court’s opinion, focused on the probative value of alcohol consumption on the defendant’s ability to observe his surroundings at the time of the accident.
Id.
at 638-39. In any case,
Stewart
is still instructive for its other factual similarities and to contradict Slater’s suggestion that specific testimony about the effect of the alcohol on the defendant is required for this type of evidence to be admissible. In
Stewart
there was no such evidence, and, in fact, requiring evidence of the effect the alcohol had on the person would be similar to the requirement for admissibility that
Rodriguez
did away with: “[previously, in a negligence action, evidence of a driver’s alcohol consumption was admissible only if coupled with evidence of erratic driving or
some other circumstance from which it
At oral argument, Slater’s counsel insisted that this case was analogous to
Hosto v. Union Electric,
where this Court affirmed the trial court’s decision to exclude evidence of alcohol consumption.
This case is distinguishable from Hosto primarily because the evidence was offered for a different purpose than was the evidence at issue here. In Hosto, the defendant was trying to prove that the passenger and the pilot drank together to show her knowledge that the pilot was intoxicated for purposes of her comparative fault. Here, however, evidence of Slater’s alcohol consumption was offered in regards to his ability — as the only witness who could testify about the accident and as the driver of the car involved in the accident — to see, hear, perceive and observe his surroundings. Moreover, in Hosto, the evidence of the pilot and the passenger’s blood аlcohol content, without more, did not show that they had been drinking together all day or that the passenger knew that the pilot was intoxicated. Here, on the other hand, there was evidence that Slater had consumed alcohol; nothing in Hosto or any ease law required the Zempels to show that his blood alcohol content was over the legal limit for that evidence to be admissible.
Furthermore, contrary to Slater’s argument, the probative value of the officer’s testimony with respect to Slater’s credibility as a witness and to his fault in the accident was not outweighed by the possibility that the testimony would be prejudicial. And, in any case, the court and counsel took measures approved by the Supreme Court tо diminish any undue prejudice.
See Rodriguez,
Point I is denied.
2. Other Testimony Regarding Alcohol
Slater contends that the second officer’s comment that an alcoholic or someone “drunker than a skunk” might still pass a field sobriety test and reference to the change in the legal limit was irrеlevant, highly prejudicial and without foundation. Slater argues that the officer had no personal knowledge that he had been drinking because the officer was unsure about why he knew Slater had consumed one or two beers and had trouble recalling any details of this incident. He claims also that mentioning the new lower legal limit implied that Slater would have been over the limit under the new law. The prejudicial effect of this implication, Slater claims, was made worse by the officer’s testimony about the general effects of alcohol on other people. We disagree.
First, the equivocation and problems with recall in the officer’s testimony go to the weight of this testimony, not its admissibility.
Cf. State v. Holmes,
Second, the officer’s mention of the change in the legal limit and his testimony about the effects of alcohol on other people was also admissible. In his argument to the contrary, Slater relies on
Yingling v. Hartwig,
A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether [the plaintiff] continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony.
Id.
But there is no abuse of discretion in admitting testimony regarding generalities if the witness also compares or applies those general principles to the specifics of the particular case.
See, e.g., Disbrow v. Boehmer,
According to the reasoning in the above cases, the officer’s testimony in this case about the effects of alcohol on people generally was admissible because he also testified — albeit indirectly — about the effects of alcohol on Slater in this case. Namely, the officer testified that failure to include alcohol on the police report indicated that alcohol had not contributed to this accident. Slater claims that any benefit from this testimony was weakened substantially by the inflammatory and misleading implications that Slater had skillfully fooled the officers despite his drunkenness. But the officers had already testified that Slater’s blood alcоhol content was not above the legal limit based on the portable breath test. There was nothing in either of the officers’ testimony to suggest that Slater could have fooled the portable breath test. At best, one could conclude that he was drunker than he appeared, but still not drunk enough according to the portable breath test to have been arrested or to have caused one to conclude that alcohol contributed to accident. Slater suffered no prejudice from that inference. Moreover, without more, merely mentioning the change in the law does not create an unfairly prejudicial inference that Slater would have been over the new lower limit; even if thаt could be inferred, again it was not prejudicial in light of the evidence that alcohol did not contribute to the accident. Finally, the curative measures discussed above served to lessen any prejudice attending these comments. See section II. A.1, swpra. '
Point II is denied.
3. Habit Evidence
Slater argues that the trial court erred by admitting evidence that Zempel had a habit of obeying the speed limit. He argues that the ride Zempel and his son took on the day of the accident was unlike any previous rides they had taken and, therefore, there was no foundation for admitting evidence of his habits on those other rides. Slater also contends that this evidence did not constitute a true habit because Zempel’s compliance with the speed limit was not automаtic and was dependent on too many conditions, namely, being on a motorcycle with his son. Finally, Slater argues that Zempel’s and his son’s testimony was self-serving and was in the present tense, which does not demonstrate that the habit existed before the time of the accident. We find no merit in any of these arguments and no clear abuse of the trial court’s decision regarding the admission of this evidence.
See Fairbanks,
From the rare occasions on which Missouri courts have addressed the admissibility of habit evidence, the following principles emerge. Habit evidence “ ‘is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit or routine practice.’ ”
Hawkins v. Whittenberg,
Here, the evidence that Zempel
always
obeyed the speed limit when riding with his sons is proper habit evidence and was admissible. The testimony demonstrates that it was Zempel’s regular practice every time he had one of his sons on the motorcycle to obey the speed limit, which practice he maintains by having his son read the speed limit sign and then putting the needle of the speedometer on that limit. In this way, the conduct could be construed as having become semi-automatic. The fact that the ride on the day of the accident was the longest ride Zempel had ever taken with his son does not render the habit evidence inadmissible' because the habit was to obey the speed limit
whenever
his son was on the motorcycle with him; there was nothing in the testimony to suggest that Zempel’s conduct differed depending on the length of the ride. Therefore, the circumstances under which Zempel testified he always obеyed the speed limit were sufficiently similar to the circumstances on the day of the accident. Although their testimony was- largely in the present tense, it was clear that both Zempel and his son were referring, at least in part, to the shorter rides taken before the day of the accident. Moreover, although this was the first long ride, Zem-pel’s son had been on 20 or 30 motorcycle rides with his father and every time Zem-pel obeyed the speed limit. This is an adequate sampling of Zempel’s conduct from which to conclude that this was his regular practice and distinguishes this case from those cited by Slater.
See Reyes v. Missouri Pacific Railroad Co.,
Point III is denied.
4. Point of Impact Evidence
Slater argues that the officer’s testimony as to the point of impact and the diagram depicting the point of impact were inadmissible because expert opinion testimony is not permitted as to point of impact in a collision case.
First, the questions Zempel’s counsel asked regarding the officer’s determination of the point of impact were withdrawn after Slater’s counsel objected; thereafter, the officer merely testified as to how he arrived at that determination based on his perceptions of the skid marks on the road, which is not testimоny that Slater challenges on appeal. Rather, the
The diagram depicting the point of impact was also admissible. Although it shows Slater’s car in the middle of Route B at the point of impact — with the back end of the car in the westbound lane and the front end in the eastbound lane — the officer’s testimony during cross-examination clearly indicated that (1) no part of Slater’s car was in the westbound lane at the point of impact, (2) the impact occurred when Slater’s car was much closer to the south edge of the road, and, in fact, (3) part of Slater’s car had already passed through the intersection by that time. The conflict between the diagrаm and the officer’s testimony does not, as Slater contends, render admission of the diagram erroneous. Complaints about inconsistencies in the evidence go to weight, not to admissibility.
Brandt v. Pelican,
Point VII is denied.
B. Sufficiency of the Evidence
Slater challenges the submission of the verdict-directing instruction regarding his failure to yield the right-of-way or failure to keep a careful lookout; he also challenges the denial of his motions for directed verdict and for judgment notwithstanding the verdict. The propriety of these rulings all ultimately depend on whether there was substantial evidence that Slater failed to yield the right-of-way and failed to keep a careful lookout.
See generally Romeo v. Jones,
Every motorist operating a vehicle must “exercise the highest duty of care to maintain a careful lookout ahead and laterally upon entering an intersection.”
Blackshiers v. Harris,
In
Hudson,
the plaintiffs’ car was in the flow of traffic when they saw the defendant’s car stopped at a stop sign at an intersection 20 feet away.
Id.
at 421. The plaintiffs did not have a stop sign.
Id.
Once into intersection, the plaintiffs saw that the defendant’s car was just a few feet in front of their car, and the cars collided.
Id.
at 422. The defendant never saw the plaintiffs’ car, although his view from the stop sign was unobstructed for 1,125 feet in the direction from which the plaintiffs were traveling.
Id.
The case was submitted on alternative theories that the defendant had failed to yield the right-of-way or failed to keep a careful lookout.
Id.
The court found that the effective precautionary measure would have been for
the
defendant to have remained stopped and to have refrained from pulling out into the intersection in front of the plaintiffs’ car.
Id.
at 428-29. There was sufficient evidence that the defendant could have seen the plaintiffs’ cаr in time to avoid the collision and that the defendant created the danger of a collision by failing to see the plaintiffs’ car before pulling out in front of it.
Id.
at 429. The plaintiffs, therefore, made a submissible case for failure to keep a careful lookout.
Id.
Moreover, the plaintiffs’ distance from the stop sign and their speed, the defendant’s unobstructed view and the fact of the collision was sufficient evidence from which the jury could decide whether the plaintiffs’
Similarly, here, the evidence demonstrates that the effective precautionary measure would have been for Slater to have remained stopped instead of creating a hazard by pulling out into the intersection. There was substantial evidence from the photographs and Slater’s own testimony that his view down Route B in the direction from which Zempel was traveling was unobstructed. Slater’s argument on appeal relies on the “contrary” evidence that his view was impaired by sun and traffic on the day of the accident. To the extent that evidence raises an inference unfavorable to the plaintiffs’ case, we disregard it on appeal. See id. at 427. Moreover, regardless of what else affected his view, in describing the distance between cars in the flow of that traffic, Slater implied that he could see at least 300 feet down Route B:
... Now [the westbound vehicles] were not in a parade necessarily, but that traffic was generally moving towards the sun. There was other traffic coming from the west to the east. It was automobile traffic. You would see 1, 2 or 300 feet back you would see another one, so the traffic was flowing from the west to the east and also from the east to the west as I remained stopped there. Furthermore, Slater agreed that he could see “some distance” down, and stated that he had a “sufficient view” of, the eastbound lane of Route B.
There was also sufficient evidence from which the jury could determine how far away the motorcycle was from the intersection when Slater entered it: there was evidence that Zempel was traveling the speed limit in conformity with his habit and that the speed limit was 55 miles per hour on that part of Route B; that, at 55 miles per hour, a vehicle travels 82.5 feet per second; that Slater was traveling 5 miles per hour across Route B, which was 22 feet, 9 inches wide; that, at 5 miles per hour, a vehicle travels 7.5 feet per second; that a driver’s reaction time is 3/4 of a second; and that Zempel’s motorcycle left a skid mark starting 84 feet, 10 inches from the intersection. In fact, in the context of Zempel’s comparative fault for the accident, Slater’s counsel argued that this evidence showed that Zempel’s motorcycle was between 268 and 330 feet from the intersectiоn when Slater entered it and, therefore, Zempel could have seen Slater in time to avoid the collision. Likewise, this was substantial evidence from which a jury could conclude that Slater failed to keep a careful lookout because he could have or should have seen Zempel. Moreover, this was substantial evidence from which a jury could conclude that the motorcycle presented an immediate hazard and Slater failed to yield the right-of-way. Therefore, it was proper to give the verdict-directing instruction on both theories and to deny the motions for directed verdict and for judgment notwithstanding the verdict.
Points IV, V and VI are denied.
III. CONCLUSION
The judgment is affirmed.
Notes
. As other courts have pointed out, Missouri has not adopted the federal rules.
See, e.g., State v. Hemby,
. The court in
Hawkins
pointed out that the precedential value of
Hodges
is questionable because the
Hodges
court expressed doubt as to its correctness and concluded that, even if improperly admitted, the habit evidence was not prejudicial.
Hawkins,
.
See also McWilliams v. Wright,