Appelhans v. Goldman

Decision Date11 September 1961
Docket NumberNo. 2,No. 48492,48492,2
PartiesDarlene Appelhans, Respondent, v. Bart E. GOLDMAN, Appellant
CourtMissouri Supreme Court

A. L. Shortridge, Joplin, Emerson Foulke, Joplin, for appellant.

Edward V. Sweeney, Monett, Esterly & Casteel, Carthage, for respondent.

BOHLING, Commissioner.

Mrs. Darlene Appelhans recovered a judgment of $20,000 against Bart E. Goldman for personal injuries arising out of an automobile collision. Plaintiff's case was submitted only on defendant's ability to stop and avoid the collision under the humanitarian doctrine. On this appeal, defendant contends the court erred in admitting certain evidence; that plaintiff failed to make a case under the submitted negligence, and that the damages awarded are excessive.

The collision occurred at the intersection of Center (north-south) and Olive (eastwest) Streets in Carthage, Missouri, on the morning of November 20, 1958, a fair, dry day. Olive Street is 39 feet 7 inches wide has a rough-type blacktop surface, and is slightly upgrade for eastbound traffic approaching Center Street. Center Street is 43 feet 7 inches wide, has a gravel surface, and a heavier upgrade for northbound traffic approaching Olive Street. A house is located at the southwest corner of the intersection, and the sidewalk from the house to the south curb of Olive is 30 feet 6 inches west of the west curb of Center Street.

Plaintiff worked as a practical nurse on the night shift at the Jane Chinn Hospital in Webb City. She lived about 6 miles from Carthage. Her son Richard Appelhans, Jr., attended the Carthage High School. After she finished work it was her custom to meet Richard at the road to their home, drive with him to his school in Carthage, and return home with their 1950 two-door Ford automobile, which had a standard gear shift and was in good condition. Richard was 16 years old and was licensed to drive automobiles. When plaintiff met Richard on the morning of November 20, 1958, he took the driver's seat and plaintiff moved over on the front seat. Richard drove to Carthage and, after stopping for traffic, made a left turn off Oak Street to proceed northwardly on Center Street. Olive is the first street north of Oak. Richard, northbound on the east half of Center Street, shifted from low to second gear, and reached a speed of about 20 miles per hour, but slowed to 10, not over 12, m. p. h. for the intersection of Center and Olive. He looked in both directions after he passed the house on the southwest corner of the intersection but did not see any car on Olive. Plaintiff also looked to the west but her son, who was the taller (5 feet 9 inches against plaintiff's 5 feet 1 1/2 inches) blocked her view to some extent. She too saw no approaching eastbound car.

Defendant testified he was going deer hunting, and was eastbound, right at the center line, on the south half of Olive Street in his 1952 Ford automobile.

The length of each automobile was 16 or 17 feet.

The house at the southwest corner of the intersection was the only obstruction to the vision as the operators of the cars neared the intersection. Plaintiff adduced testimony to the effect that the whole of an automobile 80 feet south of the south curb of Olive Street could have been seen by defendant, an eastbound motorist on Olive Street, when 50 feet west of the west curb of Center Street; that both front headlights of said automobile could have been seen by defendant when 68 feet west of the west curb of Center Street. There was testimony from which the jury could find that after plaintiff's car cleared the house at the southwest corner of the intersection it could have been seen by an eastbound motorist on Olive Street 300 feet west of Center Street. Defendant testified his automobile was about north of the sidewalk of the house on the southwest corner of the intersection (that is, 30 1/2 feet west of the west curb of Center Street) when he first saw plaintiff's automobile, which he placed 80 feet south of Olive Street.

Plaintiff first saw defendant's car when the front of her car was approximately 8 or 9 feet south of the center of Olive Street, and defendant's car was then a little better than 50 feet west of the west curb of Center Street. About 12 feet of plaintiff's car was then in the intersection. Plaintiff testified that at that time she had no idea a collision would occur. Plaintiff next heard the noise from defendant's application of his brakes, and said noise caused Richard to look and first see defendant's car. The left front end of defendant's car struck the rear bumper and left rear fender of plaintiff's car after plaintiff's car had cleared the south half of Olive Street and was in the northeast quadrant of the intersection with its rear end a foot north of the center of Olive Street. Plaintiff's car was traveling a foot or more east of the center line of Center Street.

Plaintiff offered in evidence certain admissions against interest by defendant. Defendant was driving at a speed of 25 m. p. h.; his skid marks started 2 or 3 feet west of the west curb line of Center Street and his left skid mark was right at the center of Olive Street; his brakes were good on all four wheels, and his reaction time 'was above average,' 'was excellent.'

The officer who investigated the collision at the scene testified defendant told him 'he just didn't see the car in time to stop.'

Defendant makes the point that plaintiff's Exhibit 4 and testimony based thereon by plaintiff's witness Jerry Anderson as to stopping distance were hearsay and their admission was prejudicial error. Plaintiff says, among other contentions, that defendant interposed no timely and proper objection to or motion to strike said evidence on the ground of its being hearsay and may not now convict the court of error in its admission.

Witness Anderson had taught 'drivers education' in the Carthage Senior High School for three years. He identified plaintiff's Exhibit 4 as a chart prepared by the Traffic Engineering and Safety Department of the American Automobile Association showing the distance in feet for 'Reaction Time' (3/4 of a second being used), 'Breaking,' and 'Total Stopping Distance' (minimum) for automobiles traveling at various speeds; and testified, without detailing it, that the distances shown on Exhibit 4 were generally accepted and used in traffic work and in teaching 'drivers education,' and were approximately the same as the distances shown on other like charts.

Defendant, after preliminary questions, objected to Exhibit 4 on grounds that were general in nature (Bowman v. Ryan, Mo.App., 343 S.W.2d 613, 620) and not on the ground said exhibit was objectionable as hearsay. The objection was overruled and Exhibit 4 was admitted in evidence. After a number of questions and at defendant's request, the court agreed that the record show 'a continuing objection to any testimony with regard to this chart as not being properly identified and not having any bearing on this case.' Following serveral questions and answers explanatory of the chart and the witness's answer that he was stating what the chart presented and not his personal knowledge, defendant interposed the objection: 'Object to further testimony as hearsay, your Honor. The Court: Overruled.' Throughout the rest of the direct examination of this witness no further objection was made to Exhibit 4 or to the witness's testimony which included facts within his personal knowledge. There was no objection to his testimony that the total stopping distance for a car traveling 30 m. p. h. was 78.4 feet and for a car traveling 25 m. p. h. was 60.2 feet. We find no motion by defendant to strike said exhibit or any of the witness's testimony.

Breshears v. Myers, Mo., 266 S.W.2d 638, 640, although holding the admission of the evidence not reversible error, states: 'The admission in evidence of a statement from a chart in a book prepared by the State Highway Department as to stopping distance at 60 miles per hour (read by the patrolman) was improper as hearsay and defendant concedes this.' See Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 84[14-16]; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 489[12, 13]; Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo., 337 S.W.2d 897, 905[6, 7]; Meriwether v. Quincy, O. & K. C. R. Co., 128 Mo.App. 647, 107 S.W. 434, 439; 32 C.J.S. Evidence Sec. 718, p. 627; 20 Am.Jur. Sec. 964, p. 812. Practical experience has been considered to prima facie qualify a witness as to the distance within which an automobile may be stopped. Young v. Bacon, Mo.App., 183 S.W. 1079, 1082; Brockman v. Robinson, Mo.App., 48 S.W.2d 128; Annotation, 135 A.L.R. loc. cit. 1413; 9C Blashfield, Automobile Law, Perm.Ed., Sec. 6237, p. 414. That courts in the discussion of issues refer to texts and prior decisions bearing on the issue does not make such references independent evidence for consideration by a jury.

Objections to the admission of evidence should be timely. Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; State ex rel. State Highway Comm. v. Cone, Mo., 338 S.W.2d 22. And:

'It is well settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it. * * * Relevant evidence received without objection may properly be considered, although it would have been excluded on proper objection. * * * Even hearsay evidence admitted without objection has been considered. * * * A rule of evidence not invoked is waived.' Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539[3-5], citing cases.

With respect to testimony based on the National Automobile Dealers Association book showing the average retail price of used automobiles, it was said: 'Defendant now contends that this was based upon hearsay and constituted no legal evidence of value. It appears from an examination of the...

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