Stelmach v. Saul
| Decision Date | 05 July 1932 |
| Docket Number | 21861 |
| Citation | 51 S.W.2d 886 |
| Parties | STELMACH v. SAUL. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.
“ Not to be officially published.”
Action by Bruno Stelmach against Elmer Saul, doing business as the Holly Hills Creamery Company. From the judgment granting defendant a new trial, plaintiff appeals.
Affirmed and remanded.
See also, 50 S.W.2d 721.
Hay & Flanagan, of St. Louis, for appellant.
Ely & Ely, of St. Louis, for respondent.
Plaintiff had judgment against the defendant in his action for personal injuries alleged to have been sustained as the result of a collision between an automobile in which plaintiff was riding and an automobile truck belonging to the defendant. The trial court sustained defendant’s motion for a new trial upon the grounds that the court had erred in admitting incompetent, irrelevant, immaterial, and improper testimony on behalf of plaintiff, over the objection and exception of the defendant. Plaintiff appeals.
It appears that on August 31, 1929, plaintiff was riding in a Ford automobile owned and driven by his brother, when, at the intersection of Wilmington and Coronado avenues in St. Louis, the automobile in which plaintiff was riding, and an automobile truck driven by the defendant’s agent, collided, and plaintiff suffered injuries therefrom.
Plaintiff’s evidence tends to show that his brother George was driving the Ford westwardly along Wilmington avenue at about twenty miles per hour; that as the automobile approached Coronado avenue he decreased the speed of the automobile and sounded his horn; that when the automobile had gotten halfway across the intersection of said streets, plaintiff’s brother saw defendant’s automobile truck coming toward him from the south at a speed of about forty miles per hour. Plaintiff, however, did not see defendant’s truck until it struck the Ford on the left side near the rear thereof. As a result of said collision, plaintiff was thrown out of the automobile to the sidewalk and injured.
Defendant’s evidence tends to show that defendant’s truck came north on Coronado avenue at a speed of about twenty-five miles per hour, and that as it approached Wilmington avenue it slowed down to twenty-two miles per hour; that when the truck reached the intersection, and when the front wheels thereof had reached the south line of Wilmington avenue, the Ford in which plaintiff was riding was twenty-five or thirty feet east of the intersection and was approaching the intersection at a speed of about twenty-five to twenty-eight miles per hour; that when the driver of the defendant’s truck saw the Ford bearing down on the truck he turned and tried to avoid it, but was unable to do so, with the result that the Ford struck the right side of the truck to the rear of the door, causing it to upset.
Plaintiff below, appellant here, urges that the court erred in sustaining defendant’s motion for a new trial upon the grounds that it had erred in admitting incompetent, irrelevant, immaterial, and improper testimony on behalf of plaintiff over the objection and exception of defendant.
We are constrained to the view that upon the record before us the trial court cannot be held to have abused its discretion in granting defendant a new trial.
It appears that plaintiff adduced Edward J. Suess as a witness, who was not an eyewitness to the collision between the truck and the Ford automobile. He was permitted to testify, over the objection of the defendant, that prior to the accident the defendant’s truck passed him going about thirty-five miles an hour. The witness further testified that after seeing the truck he had stopped to make a call, stopping some fifteen to twenty minutes, after which he saw the truck for the second time, and ***"
The record discloses that when the witness was interrogated as to how the truck was moving when he saw it shortly before the accident, and upon the witness stating that he saw the truck within two blocks of the accident, objection was made to his testifying as to the speed at that distance from the point of the collision. Thereupon counsel for plaintiff stated that they would "connect up this testimony." Counsel for defendant then objected to the introduction of such testimony "until it is connected up," which objection was overruled. Thereupon the testimony outlined above was admitted over the objection of counsel for defendant, but when, after the testimony had been admitted upon the assurance of counsel for plaintiff that it would "be connected up," and the testimony disclosed that some fifteen to twenty minutes had elapsed after the witness had seen the truck until the time of the collision, upon motion of defendant’s counsel the testimony with reference to the speed of the truck was stricken from the record.
Appellant argues that the striking out of evidence erroneously admitted cured any error in its admission, and that since defendant...
To continue reading
Request your trial