Bowman v. Ryan

• Decision Date: 21 February 1961
• Docket Number: No. 30566,30566
• Citation: 343 S.W.2d 613
• Parties: Oliver John BOWMAN, Plaintiff-Respondent, v. William Joseph RYAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 613

343 S.W.2d 613

Oliver John BOWMAN, Plaintiff-Respondent, v. William Joseph RYAN, Defendant-Appellant.

No. 30566.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1961.

Thomas Wehrle, Walter Wehrle, Clayton, for appellant.

Joseph Langworthy, Pacific, for respondent.

BRADY, Commissioner.

This is an action to recover damages to and loss of use of an automobile, owned and driven by the respondent, involved in a collision with a truck driven by the appellant. The jury returned a verdict for the respondent in the amount of $1,150, judgment was entered accordingly, and the appellant filed his timely after trial motion and has perfected his appeal. The collision occurred on December 4, 1958, and the case was tried on December 30, 1959. We heard arguments on the merits during our November docket, and took respondent's motion to dismiss for failure to comply with the rules with the case. We have carefully considered that motion, and have determined that it should be overruled.

The collision in evidence took place about three miles east of Pacific, Missouri, on Highway 66, a three-lane highway running generally eastwardly and westwardly and being straight and flat at that place where a private driveway runs northwardly from the highway into the farm of one, Pleggemann. Each lane is ten feet wide. The collision occurred at about 7:30 P.M. on a cloudy overcast day with visibility of about 500 feet. The highway was not slick although a little damp. There is no point preserved for our action dealing with the amount of recovery or testimony as to the damages, and we will therefore delete that portion of the testimony from our summation of the facts.

The respondent's evidence was that he was going westwardly on the highway driving in the right-hand or outside lane of traffic, at a speed of about 60 to 65 miles per hour; that he had five passengers with him; that he first saw the appellant in the truck when it was in the center lane of traffic, while a trailer-truck was approaching on his far left; that when he got to within '* * * a couple of hundred feet of him, approximately * * *' the appellant made a left-hand turn, '* * * right in front of me * * *'; that when he saw the appellant make a left turn he applied his brakes and his automobile slowed down and slid a little, striking the truck; that the right side of his automobile, starting from the right front fender back through the doors struck the appellant's right rear which at that time was in the middle lane, the rest of the truck being in the right-hand lane; that immediately following the collision he had a discussion with the appellant and 'He said he would fix up my car, pay my transportation back and forth to work.' This answer was immediately objected to by the appellant on the grounds that 'That is prejedicial and incompetent' and a mistrial was requested. The objection and motion were overruled. On cross-examination the respondent testified that there was no obstruction to block his view of this truck; that he saw it as he approached to where the truck turned left in front of him.

The state trooper who investigated the accident testified without objection as to the statement made by the appellant to him, at the scene of the accident, that 'I was going down the road and was turning left and I had my blinkers on and was looking at the mirror at the traffic in the rear and when I looked up, there they were.' He also testified that the debris was mostly in the right-hand lane and on the shoulder; that he saw no skid marks; that the respondent told him he was going about 65 miles per hour and the appellant made no statement as to speed; that he examined the vehicles at the scene and they seemed in good operating condition; that he got to the scene about ten minutes after the accident; that he found no debris in the center lane; and that where the debris was would not necessarily indicate the point of impact.

Seigler was riding in the front seat of respondent's automobile and testified that the appellant's truck turned to make a left-hand turn in front of respondent; that the respondent moved his automobile over to the center lane, applied the brakes and slowed down; that at the time of impact the back end of the truck was just barely in the center lane; that respondent slowed down from the speed he was going--65 mph--before the impact.

Busch was also riding in the front seat of respondent's automobile and testified that upon the appellant making the left-hand turn in front of them, respondent swerved to his left and applied the brakes; that the truck was in both the center and westbound lanes and that there was a trailer-truck in the eastbound lane; that appellant made no signal he saw.

Parr, also respondent's passenger, testified that appellant was in the center lane and started to make his left-hand turn when they were about 300 feet from him; that respondent was then going not over 60 mph and put on his brakes, slowing to between 55-60 mph at the time of impact; that respondent '* * * swayed to his left * * *'; that there was a trailer-truck in the left-hand lane.

Eddinger was in the rear seat behind the driver and upon feeling the brakes being applied looked up and saw the truck going across in front of the making a left-hand turn; that at this time they were about 100 feet from the truck and going about 55-60 mph; that at impact they were traveling at maybe 45 mph.

Benedict was the other passenger, and was seated on the right-hand rear and testified that appellant pulled out in front of them, whereupon respondent '* * * pulled over, applied his brakes * * *'; he estimated speed at 60-65 mph and that while he could feel the brakes being applied and the car slowing down, he didn't know what speed they were traveling at impact; that at the time of impact respondent was in the middle lane.

Respondent then rested, and appellant's motion for a directed verdict was submitted, argued out of the jury's presence, and overruled. The appellant then offered certain portions of respondent's depositions as admissions against interest and read those portions. The appellant testified that on the occasion in evidence he was on his way to Pleggemann's farm; that 'Well, I was going east and he was going west and I was going to make a left turn to go into Otto Pleggemann's and I had my directional lights working and I was in the center lane. I looked at my rear-view mirror and there was no one coming and I made the left turn. I didn't see anyone in front of me'; that he looked ahead and could see 400-500 feet, but saw no one; that at impact 3 or 4 feet of the back part of the truck was in the westbound lane, the rest being in Pleggemann's drive; that he was traveling 12-15 mph when he made that turn; that he didn't remember just what he did tell the trooper at the scene; that the only damage to his truck was to a stake which he replaced himself.

Appellant again offered a motion for a directed verdict which was overruled and the case was submitted to the jury which returned a verdict in the amount of $1,150 in favor of respondent.

The appellant states five points in his brief, but actually they amount to only three: first, that the trial court erred in overruling appellant's motions for a directed verdict because respondent failed to make a submissible case, was guilty of contributory negligence, and was not the real party in interest; second, that the trial court erred in overruling appellant's objection to the admission of allegedly prejudicial and incompetent testimony and also prejudicially erred in denying his request for a mistrial because of a statement of opposing counsel; third, that the trial court erred in giving Instruction No. 1.

Insofar as the appellant's contention that the trial court prejudicially erred in overruling its motion for a directed verdict because the respondent was not the real party in interest is concerned, that point must be disregarded. In his brief, under his consideration of this point the appellant states: 'During the trial of the case, the deposition of plaintiff [Oliver John Bowman] was received in evidence by the Court as an admission against interest. (Tr. 103, 104).' This is not borne out by the record. Reference to the cited pages of the transcript discloses that the trial court did not admit the deposition but, since the appellant stated that 'If Your Honor please, as admissions against interest, * * *' he offered the deposition, the trial court confined its ruling to the offer made and stated, after objection by respondent's counsel, 'All right. For the purpose of showing admissions against interest, those portions, if they are such, may be read.' None of the parts of the deposition dealing with the company's allegedly being the real party in interest, set out in the appellant's brief, was ever read nor was that point in the motion for new trial. Accordingly, the point is not before us. Section 512.160, subd. 1 RSMo 1949, V.A.M.S.; Blevins v. Thompson, Mo., 255 S.W.2d 787.

We pass therefore to a consideration of appellant's remaining contentions with respect to the trial court's alleged error in failing to sustain his motion for a directed verdict. The appellant contends that there is only one assignment of negligence in the instruction submitted to the jury and that there was no evidence to support that instruction. He contends that assignment was

'* * * or that defendant Ryan failed to drive his truck in a careful and prudent manner and failed to exercise the highest degree of care in keeping a proper lookout in the direction in which he was operating the truck, that such failure to keep a proper lookout was negligence, and that such negligence resulted in the collision that occurred, * * *'.

Appellant contends there was no evidence to support this submission. In determining the question of the sufficiency of the evidence to warrant the giving of an instruction, we are to view the evidence in the light...