Closser v. Becker
| Decision Date | 13 January 1958 |
| Docket Number | No. 45828,No. 1,45828,1 |
| Citation | 308 S.W.2d 728 |
| Parties | Harry L. CLOSSER, Respondent, v. Byron W. BECKER, Appellant |
| Court | Missouri Supreme Court |
W. Raleigh Gough and Claude M. McFarland, Kansas City, for appellant.
Frank L. Cohn, R. Robert Cohn, Kansas City, for respondent.
Plaintiff recovered judgment in the sum of $25,000 for personal injuries sustained when struck by defendant's truck near the intersection of 27th and Bales Streets in Kansas City, Missouri. The cause was submitted to the jury upon the sole ground of humanitarian negligence. Defendant has appealed. The principal contention is that no submissible case was made. Error is also assigned in the admission of evidence and allegedly prejudicial misconduct of a juror.
The casualty occurred between 9:20 and 9:30 on the morning of June 2, 1952, a clear, dry day. Plaintiff, then about 64 years of age and in good health, was a truck driver for the Albert Tamm Lumber Company. About 9:00 a. m., he left his employer's yards driving a truck loaded with lumber. The lumber was held in place by four upright stakes on each side of the flat truck bed and by a chain, the ends of which were attached to hooks on each side of the bed. Atop the load, which reached the approximate height of the stakes, was a roll of builder's paper, not fastened to the truck in any manner. Plaintiff drove southward on Indiana Avenue to 27th Street, an east-west street, where he made a left turn to the east. As he made the turn, the roll of paper fell from the truck. He stopped the truck, picked up the paper, tossed it up on the load and then drove the truck eastward on 27th for about two-thirds of a block to a point near Bales Street, the first street east of Indiana. He there parked the truck adjacent to the south curb of 27th at a point between driveways leading into an automobile service station on the south side of 27th. The outside dual right rear wheel of the truck was against the curb and the right front wheel was north of the curb to the extent of the width of the outside rear dual wheel.
In that block, 27th Street is 40 feet, 2 inches wide between the curbings. Plaintiff's truck was 23 feet long, 6 feet, 5 1/2 inches wide. After parking, plaintiff stepped from the truck and was immediately north of it in 27th Street when defendant drove his truck, loaded with milk, eastward on 27th, passing along the north side of plaintiff's truck, at which time plaintiff was struck by defendant's truck and was severely injured. Defendant's truck was 21 or 22 feet long. The cab was about 8 or 9 feet long and 6 feet in width. Back of the cab was a solidly enclosed metal box bed, 12 feet long and apparently 5 or 6 feet high. The width of the box bed was 80 inches. Rear fenders extended outward from the bed an additional 2 1/2 inches on each side, giving it an over-all width of 85 inches at its rear fenders.
Plaintiff testified: As soon as he parked the lumber truck, he got out on the left side of it, at which moment there was no traffic coming from the west. He took a rope from the 'bump board' at the rear of the cab, placed a loop priorly tied in one end thereof into a hook affixed to the bed near the front standard, stepped back two or three steps and, while holding the loop in place, threw the rope over the top of the load of lumber, preparatory to going to the south or right side of the truck and there fastening the rope to a hook in the bed on that side, for the purpose of thereby securing in place the roll of building paper. At that moment he saw traffic coming eastward across Indiana Avenue. He stepped up against the side of the truck, facing his load of lumber, with his chest against the truck and his right arm extended upward along the left front standard, which was two or three feet back fo the cab. His body, he thought, was about one foot thick. He did not look toward the oncoming traffic, but remained in the position he had taken. He heard either two or three eastbound cars pass to the rear of him. The 'next thing that happened * * * I was laying in the street.' He had no memory of being hit, 'guessed' he was 'knocked unconscious', but could hear people talking. Eventually, he was taken to St. Mary's Hospital but had no memory of that fact. Neither did he remember taking to any police officers at the hospital. His first memory was of talking to his wife, except that he remembered 'hurting all over' as he lay upon the street and that he was bleeding. Plaintiff later testified, however, that he talked, or may have talked, with police officers at the hospital but said he did not tell them, or at least did not remember telling them, that he was pulling on the rope and fell into defendant's passing truck.
Mrs. Grace Puckett, called as witness in behalf of plaintiff, testified: At the time and place above mentioned she had driven her Chevrolet automobile westward on 27th Street to Bales and was near the east side of the intersection, with the left wheels of her car upon the center of the street. Her left hand was extended from her car, as a signal of her purpose to make a left turn southward on Bales, as soon as traffic permitted. At that moment she saw defendant's 'Sunshine milk truck' eastbound on 27th Street about midway between Indiana and Bales. The approach of defendant's truck caused her to delay her left turn to await his passage. Defendant was looking directly toward her. She watched defendant and did not at first observe plaintiff or his parked lumber truck. Defendant's truck was at all times south of the center of 27th Street and it came 'straight on' without changing its course. She saw plaintiff 'just as he got hit.' He was standing near the cab of his truck with his back to defendant's truck. Defendant's truck continued its straight course eastward, entirely south of the center of 27th Street. As defendant drove by the south side of her car, she told him that he had killed a man. Defendant did not answer, she thought, but he stopped his truck immediately.
The witness further testified:
* * *
* * *
* * *
* * *
'Mr. Gough: I move to strike the answer of the witness, 'six feet', as showing on its face that it is a mere guess. * * *'
* * *
* * *
* * *
* * *
'A. I couldn't reach--(illustrating).
'Q. Now, Mrs. Puckett, what is it you are describing then, the distance between the two trucks? A. Well, the trucks was close together and that's all I can tell you. I can't tell you how far it was.
'Mr. Gough: I again move to strike out the answer of the witness, 'close' being a relative term, this being a mere conclusion on the part of the witness.
'The Court: Overruled.'
On cross-examination, the witness testified: The back fender of defendant's truck struck plaintiff. She saw the plaintiff just as he got hit and she 'thought' he was getting out of his truck. She saw no movement of plaintiff toward defendant's truck before it struck him. At the time plaintiff was hit he wasn't doing anything.
As a part of his case in chief, plaintiff introduced in evidence portions of a deposition priorly given by defendant. In that deposition defendant admitted that he was two-thirds of a block from plaintiff when he first saw him; that plaintiff was then standing a foot or two from his truck and had hold of a rope; 'he was kind of at an angle pulling down, kind of facing southwest'; that plaintiff never faced defendant and defendant continued to watch him; that he never saw plaintiff move from that position and plaintiff never looked toward defendant; that when he was 100 feet west of plaintiff he (defendant) was traveling about 18 miles per hour and could have stopped his truck within 30 to 35 feet.
The trial court admitted into evidence records relating to plaintiff's admission to St. Mary's Hospital, his condition when admitted, progress, diagnosis and treatment while confined there. Defendant objected to a portion thereof appearing under the heading 'Emergency Record', which recited, 'Car accident this A. M., unable to get detailed history in A. M.' The objection was overruled and further portions of the record were admitted without objection. It showed (as read to the jury by plaintiff's counsel):
Dr. William Duncan testified in behalf of plaintiff: He is a physician specializing in traumatic and general surgery....
To continue reading
Request your trial
-
Ewen v. Spence
...not inconsistent herewith. Accordingly, the case is reversed and remanded. STONE, P.J., and HOGAN, J., concur. 1 Closser v. Becker, Mo., 308 S.W.2d 728, 736; Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131(3); Garrison v. Ryno, Mo., 328 S.W.2d 557(1); Phillips v. Stockman, ......
- Agnello v. Walker
- Jew v. Home Depot Usa Inc.
-
Apperson v. Bi-State Development Agency, BI-STATE
...is so clear and indisputable as to leave no room in the reasonable mind for the entertainment of any conclusion. Closser v. Becker, 308 S.W.2d 728 (Mo.1958). We do not find plaintiff's testimony indisputable. Additionally, Bi-State alleges the verdict and judgment was based on juror bias, p......