Cole v. Evans
| Decision Date | 31 January 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 546 S.W.2d 748 |
| Parties | Brenda M. COLE, Respondent, v. John EVANS, Appellant. 28051. |
| Court | Missouri Court of Appeals |
A. J. Falcone, James H. Thompson, Jr., Kansas City, for appellant.
Arthur J. Kase, Rubins, Kase & Rubins, Inc., Kansas City, for respondent.
Before WASSERSTROM, P.J., and SOMERVILLE and TURNAGE, JJ.
This is a personal injury action arising from an automobile collision. A jury found in favor of the plaintiff and awarded her damages in the amount of $8,125.00. Defendant has appealed.
No claim is made by defendant on appeal that plaintiff failed to make a submissible case or that the amount of damages awarded was excessive. For this reason the facts will be tersely synopsized. Plaintiff parked her automobile, facing south, parallel to the west curb of Fremont Street, in Kansas City, Missouri, and went to her place of employment. Fremont Street runs north and south. Plaintiff returned to and entered her automobile, looked to the rear, saw no vehicles coming, and started pulling away from the curb. While in the process of straightening her car so as to proceed south on Fremont Street, she was sideswiped by a southbound automobile driven by defendant. Defendant's automobile laid down skidmarks 124 feet in length leading up to the point of impact and extending 66 feet beyond the point of impact to where it came to a final stop. Plaintiff was rendered unconscious by the impact and was removed from the scene by ambulance. Medical testimony disclosed that plaintiff sustained a severe concussion with post-concussional headaches, dizziness, and an acute cervical sprain, which would persist in future discomfort and disability.
Plaintiff pleaded and submitted her case to the jury on primary negligence, i.e., that the defendant drove and operated his automobile at an excessive rate of speed. Defendant pleaded and had submitted to the jury his affirmative defense of contributory negligence, i.e., that plaintiff failed to keep a careful lookout or knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped.
All of the evidence presented to the jury came from the plaintiff and various witnesses whom she called--defendant did not take the stand or call any witnesses on his behalf.
Defendant urges on appeal that the judgment below should be reversed and the case remanded for a new trial because: (1) 'It Was Prejudicial Error By The Circuit Court in Permitting the Opinion Testimony as to the Speed of Appellant by Officer McGill Over Appellant's Objection Because Respondent Failed to Make a Proper Foundation for the Opinion Expressed by Officer McGill and that the Hypothetical Question Propounded Failed to Include Facts Material to The Evidence in this case.' and (2) 'The Circuit Court Committed Plain Error in Submitting Instruction Number 7 to the Jury Because the Instruction was Not in Conformity with M.A.I. and Further that the Instruction Prejudicially Inferred that the Burden of Proof was on the Appellant Throughout the Case.'
Regarding defendant's first point, the transcript discloses that the defendant timely objected during trial to a hypothetical question, put to Officer McGill regarding the speed of defendant's automobile, on the ground that it omitted relevant facts disclosed by the evidence. Defendant failed, however, to include in his objection or otherwise point out to the trial court the relevant facts which he claimed were omitted. Defendant's failure to do so rendered his objection insufficient and the trial court did not err in overruling it. Scheipers v. Missouri Pac. R. Co., 298 S.W. 51, 54 (Mo. 1927); Brooks v. Travelers Insurance Company, 515 S.W.2d 821, 824 (Mo.App.1974); Glowczwski v. Foster, 359 S.W.2d 406, 411 (Mo.App.1962); and Denney v. Spot Martin, Inc., 328 S.W.2d 399, 402 (Mo.App.1959).
Regarding defendant's second and final point, he made no objection to the presently challenged instruction (burden of proof) during trial or in his motion for a new trial. Therefore, defendant failed to preserve for appellate review any issue concerning the challenged instruction. Rule 70.02, Rule 78.07; Rule 84.13(a); Bower v. Hog Builders, Inc., 461 S.W.2d 784, 797 (Mo.1970); Erny v. Revlon, Incorporated, 459 S.W.2d 261, 267 (Mo.1970); Boten v. Brecklein, 452 S.W.2d...
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...Public Service Co., 425 S.W.2d 166 (Mo. 1968). As a result there is nothing preserved for review by this court. See Cole v. Evans, 546 S.W.2d 748 (Mo.App.1977); Belter v. Crouch Brothers, Inc., 554 S.W.2d 562 (Mo.App.1977) and Rules 70.03, 78.07 and For the reasons set forth above, point on......
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