Burr v. Singh, 42458

Decision Date12 November 1951
Docket NumberNo. 1,No. 42458,42458,1
PartiesBURR et al. v. SINGH et al
CourtMissouri Supreme Court

E. E. Thompson, Sam Mandell and Popham, Thompson, Popham, Mandell & Trusty, all of Kansas City, for appellant Singh.

Clay C. Rogers and Rogers, Field & Gentry, all of Kansas City, for appellant Harry Frantz.

O'Keefe, Root & McKelvy, Atchison, Kan., Watson, Ess, Whittaker, Marshall & Enggas and Douglas Stripp, all of Kansas City, for respondents.

VAN OSDOL, Commissioner.

Plaintiffs, Zeta Burr and Patricia Burr, have joined in this action for $70,000 damages. Plaintiff Zeta seeks recovery for the death of her husband Paul, and for the loss of services and medical expense occasioned by the injury of her infant daughter, the coplaintiff Patricia; and plaintiff Patricia seeks recovery for her own personal injuries--all alleged to have been due to the negligence of one or both of defendants resulting in a head-on collision of the Chevrolet Coach, Model 1940, in which Paul and Patricia were riding and which was being driven southeastwardly by defendant Harry Frantz, and the Chevrolet Convertible, Model 1948, driven by defendant Kanwar Zorowar Singh northwestwardly on the paved U. S. Highway No. 71, three or four miles southeast of Platte City, at about nine o'clock the evening of June 5, 1949.

The jury returned a verdict for defendants. However, the trial court granted a a new trial on the ground the verdict was 'against the weight of the evidence, is for the wrong parties, and that to permit it to stand would amount to a miscarriage of justice.' Defendants have appealed.

Plaintiffs' case was submitted to the jury as against both defendants by plaintiffs' principal Instruction No. 1 hypothesizing that either or both of defendants were negligent in failing to exercise the highest degree of care to keep his respective vehicle as close to the right-hand side of the highway as practicable, and that the collision was directly caused or directly contributed to thereby. The instruction authorized the jury to return a verdict for plaintiffs and against the defendant or defendants found to have negligently 'caused or contributed to cause' the collision.

Plaintiffs relied upon the testimony of the two defendants, each of whose testimony was in direct conflict with that of the other. By his testimony, each defendant put the fault upon the other, that is, each defendant testified he was on his own (right-hand) side of the highway, and the other defendant suddenly swerved his automobile to the left and into collision with the vehicle of the witness.

Defendants-appellants assign error of the trial court in granting plaintiffs a new trial. Defendants-appellants contend plaintiffs failed to make out a submissible case. It is urged that plaintiffs, who had both the burden of proof and the burden of the evidence, presented two inconsistent factual theories, and thus failed to remove their case from the realm of speculation and conjecture as to which of defendants, if either, was liable; and, defendants-appellants assert, it is unmistakably clear from the evidence that both of the defendants were not negligent. Having thus stated, in effect, there was no substantial evidence (to weigh) tending to prove either or both of defendants was or were responsible, defendants-appellants say the trial court abused its discretion in granting a new trial on the ground the verdict was against the weight of the evidence.

Plaintiffs-respondents contend they made out a submissible case. They insist there was direct evidence--substantial and sufficient to sustain a verdict against either or both defendants, and the trial court did not abuse its discretion in granting a new trial on the specified ground. And plaintiffs-respondents further contend, in the alternative, that a new trial should have been granted because of conflicts in instructions given.

Defendants-appellants are correct in saying that plaintiffs had the burden of the evidence, that is, the burden of introducing substantial evidence tending (prima facie) to prove the essential elements of their case as submitted; and defendants-appellants are also correct in saying that plaintiffs also had the burden of proof, that is, the burden of convincing the trier of the fact, the jury. However, it would seem that, if there was substantial evidence introduced tending to establish consistent factual theories that one or the other and that both of defendants were negligent as specifically submitted, and that the negligence directly caused or concurred in directly causing the casualty, the plaintiffs made out a prima facie case as against both defendants and the determination of the ultimate question of the liability of the one or of the other or of both defendants was for the jury in the exercise of the jury's function of weighing the evidence.

As we have said, defendant Singh testified, in effect, that defendant Frantz suddenly swerved his automobile to his left and into contact with the Singh vehicle. The defendant Frantz testified, in effect, that defendant Singh suddenly swerved his automobile to his left and into contact with the Frantz vehicle. Each of defendants testified he was on his own right-hand side of the pavement. Defendant Singh testified that, having observed the Frantz car approaching, he applied his brakes and veered off to the right, 'got my both (right) wheels on the right shoulder * * *. He (Frantz) suddenly, as he came down the dip, he flipped, and that is all I remember.' Defendant Frantz testified that, having observed the Singh car approaching, he turned to his right with 'the front (right) wheel on the shoulder. * * * His (Singh's) car suddenly swerved across into my lane, and collided in a flash * * *.' No other witness testified as an eyewitness of the collision. The left front of the Singh car struck the left front of the Frantz car. The left front corner of the Singh car struck 'midway across the front of' the Frantz car, 'that or more.'

There was evidence tending to show that the automobile of defendant Singh was completely turned around by the force of the collision, and came to rest headed in a southeasterly direction. The automobile of defendant Frantz came to rest headed in a southwesterly direction. (Here we are considering the highway as running due north and south.) The vehicles came to rest with the left rear of the Frantz car and the right rear of the Singh car about equidistant ('eighteen inches to two feet') from the center of the pavement. The Frantz vehicle was resting at an angle of about fifteen degrees and the Singh vehicle at an angle of fifteen or twenty degrees with reference to the center line of the pavement, the two vehicles forming 'a sort of 'V." When the collision occurred it was 'slightly drizzling'; it had been 'raining quite hard.' No witness testified of having observed automobile skid marks on the surface of the highway. Debris was scattered between the automobiles, 'in such a generalized manner that you couldn't say that there was more in one place than another.'

At the outset we may say the testimony of defendants and the fact of the collision seem to justify at least the tentative conclusion there was substantial evidence tending to show that one or the other and both defendants were negligent as submitted. The testimony of defendants (each that the other suddenly swerved his automobile to the left) was not conflicting or destructive of or 'at war with' but was consistent with the theory of plaintiffs' case that one or the other or both were responsible. The theory that defendant Singh's or defendant Frantz's negligence as submitted (in failing to keep his vehicle as near to the right-hand side of the highway as practicable) was a cause of the casualty was not inconsistent with the theory that the submitted negligence of both defendants concurred in causing the casualty. And plaintiffs were not bound by the testimony of either of defendants that he was on his own right-hand side of the highway, inasmuch as such testimony of each defendant was in conflict with the testimony of another witness for plaintiffs--the other defendant.

It has been held a plaintiff is not bound by the testimony of his own witnesses in so far as such testimony is contradicted by a plaintiff's other evidence. A jury may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case. McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Jones v. Chicago, R. I. & P. R. Co., 341 Mo. 640, 108 S.W.2d 94; Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548; Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 290 S.W. 135.

It is true that a plaintiff may not go to the jury on conflicting theories of fact--one version for one defendant, and an opposite theory for another, thereby recovering against both. Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481. In the Hemminghaus case there was evidence that three vehicles had collided. The plaintiff...

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