Cargill v. Armocido

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; HOLMAN, P.J., SEILER; BARDGETT
• Citation: Cargill v. Armocido, 476 S.W.2d 506 (Mo. 1972)
• Decision Date: 22 February 1972
• Docket Number: No. 1,No. 55862,55862,1
• Parties: Robert CARGILL, Sr., et al., Appellants, v. Bertha M. ARMOCIDD, Respondent

Page 506

476 S.W.2d 506

Robert CARGILL, Sr., et al., Appellants, v. Bertha M. ARMOCIDD, Respondent.

No. 55862.

Supreme Court of Missouri, Division No. 1.

Feb. 22, 1972.

Albert J. Yonke, Kansas City, for appellants.

Heilbron & Powell, Sylvester Powell, Jr., Kansas City, for respondent.

LAURANCE M. HYDE, Special Commissioner.

Action for $25,000 for wrongful death. Jury verdict for defendant and plaintiffs appeal from the judgment entered. We affirm.

The deceased, Robert Cargill, Jr., father of the minor plaintiffs, died from injuries sustained in a collision between the motorcycle he was riding and an automobile driven by defendant. The collision occurred on the evening of December 14, 1966. Instruction No. 5, authorizing a verdict for defendant, submitted as deceased's contributory negligence that he 'operated his motorcycle on the highway without a headlight burning.' Plaintiffs say: 'The sole question on this appeal is whether the trial court erred in admitting the testimony of defense witnesses Linda Young and Charles Smith concerning the absence of lights on deceased's motorcycle at the 54 Cafe.'

The testimony of these two witnesses, who were employees at the 54 Cafe, was that they saw Cargill in the parking lot of the Cafe with the lights of his cycle off, saw him drive away from the parking lot and turn south on Subway Boulevard, the street on the west side of the Cafe, without his lights on; and that Linda said to Charles 'he had better turn his lights on.' They both said it was dark at that time. The collision occurred a block and a half south at the intersection of Allison Street and Subway. There was one street, Hickory, between the Cafe and Allison Street, the Cafe being in the middle of the block north of Hickory. According to the police officer who came to the place of the collision the distance from the Cafe exit to Allison Street was 540 feet. Cargill's father, who estimated the distance by stepping, said it was 696 feet (232 steps). Plaintiffs' claim is that the testimony of Linda and Charles was only proof of a prior act, too remote and unconnected to permit an inference of no lights on the cycle at the moment of collision.

Our view is that plaintiffs' claim is without merit for two reasons: first, plaintiffs made no such objection to the testimony of Linda Young when her testimony was received; and second, we consider that this testimony as to no lights on Cargill's cycle was sufficiently connected with the collision by the testimony of defendant and other evidence. During Linda's testimony the only objection made was to what she said to Charles Smith when Cargill turned on to Subway Boulevard on leaving the Cafe lot. Court was adjourned after her testimony and when court convened on the next morning, plaintiffs moved to strike her testimony. Objection should have been made when questions concerning this matter were asked to preserve any such issue on appeal. See Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742, 747; Appelhans v. Goldman, Mo.Sup., 349 S.W.2d 204, 207 and cases cited. It appears that plaintiffs' counsel had made some statement to the court about this evidence before the trial commenced, as to which no ruling or record was made, but that was no excuse for failure to object when this testimony was offered.

In any event, defendant testified that she was driving her car north for 12 miles with her lights on and that cars she met had lights on; and that as she came north on Subway toward its intersection with Allison she intended to turn left, west, there to go to a house on the north side of Allison. Defendant said she slowed from 20 miles per hour to five miles per hour and turned on her left turn signal half a block south of Allison. She said 'I looked carefully behind me and in front of me' and there were no lights behind or coming toward her. There was no rain or snow that evening. Defendant said as she started to turn her car into Allison it was struck by Cargill's cycle and thrown sideways. Defendant did not see the cycle before it struck her car and did not know what hit her. Defendant said 'I did not see him * * * and he had no lights.' She further said: 'I was looking for cars, or any lights coming ahead of me. But there was no lights.'

Plaintiffs argue that inconsistent statements of Linda Young and Charles Smith about the time Cargill left the Cafe indicate Cargill might not have gone directly from the...