Eisenbarth v. Powell Bros. Truck Lines, Inc.

• Decision Date: 07 March 1939
• Docket Number: No. 24651.,24651.
• Citation: 125 S.W.2d 899
• Parties: MINERVA C. EISENBARTH, APPELLANT, v. POWELL BROTHERS TRUCK LINES, INCORPORATED, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

125 S.W.2d 899

MINERVA C. EISENBARTH, APPELLANT, v. POWELL BROTHERS TRUCK LINES, INCORPORATED, A CORPORATION, RESPONDENT.

No. 24651.

St. Louis Court of Appeals. Missouri.

Opinion filed March 7, 1939,

Motion for rehearing overruled March 21, 1939.

Petition for writ of certiorari granted May 2, 1939.

Writ of certiorari quashed by Supreme Court, February 21, 1940.

Appeal from the Circuit Court of City of St. Louis. — Hon. Wm. B. Flynn, Judge.

REVERSED AND REMANDED.

Thomas J. Cole for respondent.

(1) Assignments of error not based on allegations contained in the motion for new trial should not be considered by this court. Castorina v. Herman, 340 Mo. 1026, 104 S.W. (2d) 297; Young v. Wheelock, 333 Mo. 992, 64 S.W. (2d) 950; Spotts v. Spotts, 331 Mo. 917, 55 S.W. (2d) 977; Lamport v. Assurance Corp., 272 Mo. 19, 197 S.W. 95; Blanchard v. Doran, 236 Mo. 416, 139 S.W. 395. (2) The court did not err in giving and reading to the jury Instruction No. 5. This is the standard, approved instruction on the credibility of witnesses. Carl v. Ellis, 110 S.W. (2d) 805; McCarthy v. Metropolitan Life Ins. Co., 90 S.W. (2d) 158, 164; Kaiser v. Jaccard, 52 S.W. (2d) 18; Oliver v. City of Vandalia, 28 S.W. (2d) 1044, 1046. (3) The court did not err in giving and reading to the jury Instruction No. 6. This instruction on the burden of proof is in approved form. Rath v. Knight, 55 S.W. (2d) 682, 683-684; Stolovey v. Fleming, 8 S.W. (2d) 832, 833. (4) The court did not err in giving and reading to the jury Instruction No. 7. Koebel v. Tieman Coal & Material Co., 85 S.W. (2d) 519; Wolfson v. Cohen, 55 S.W. (2d) 677, l.c. 680-681. (5). The trial court passed on the instructions on the motion for new trial and there is nothing about them to cause this court to hold as a matter of law that they were unwarranted or that they were prejudicial to plaintiff or prevented a fair trial. Rath v. Knight, 55 S.W. (2d) 682, 684; Wolfson v. Cohen (Mo.), 55 S.W. (2d) 677, 681. (6) The trial court did not err in the admission or rejection of testimony. (a) An objection to questions asked witness on which no ruling was made or exception saved preserved nothing for appellate review. Silsby v. Hinchey, 107 S.W. (2d) 812, 816; Curtis v. Truitt, 7 S.W. (2d) 383. (b) Objections specifying no reason therefor present nothing for appellate review. Weston v. American Nat. Assurs. Co. (Mo. App.), 32 S.W. (2d) 789, 791; Goodspeed v. Grand Nat. Bank, 46 S.W. (2d) 913, 914.

B. Sherman Landau for appellant.

Collins v. Leahy (Mo. App.), 102 S.W. (2d) 801, 813; Bellovich v. Griese (Mo.), 100 S.W. (2d) 261; Page v. Unterreiner (Mo. App.), 106 S.W. (2d) 528; Hendrick v. Kauffman (Mo. App.), 66 S.W. (2d) 985; Beer v. Martel, 332 Mo. 53, 55 S.W. (2d) 482; State ex rel. S.S. Kresge Co. v. Shain et al. (Mo.), 101 S.W. (2d) 14, 19; Collins v. Leahy (Mo. App.), 102 S.W. (2d) 801, 813; Bellovich v. Griese (Mo.), 100 S.W. (2d) 261; Page v. Unterreiner (Mo. App.), 106 S.W. (2d) 528; Hendrick v. Kauffman (Mo. App.), 66 S.W. (2d) 985; Norris v. St. Louis I.M. & S. Ry. Co., 239 Mo. 695, 144 S.W. 783; Haynes v. Town of Trenton, 108 Mo. 123, 18 S.W. 1003; Massengale v. Rice, 94 Mo. App. 430, 68 S.W. 233; Brinton v. Thomas, 138 Mo. App. 64, 119 S.W. 1016; Barr v. Quincy, O. & K.C.R. Co., 138 Mo. App. 471, 120 S.W. 111; State v. Mosier (Mo.), 102 S.W. (2d) 620, 626; Moore v. King, 178 S.W. 124; Mahner v. Linck, 70 Mo. App. 380; Chapman v. Missouri Pac. R. Co., 215 Mo. App. 481, 247 S.W. 1016; State v. Busch (Mo.), 119 S.W. (2d) 265, 269; Oliver v. City of Vandalia (Mo. App.), 28 S.W. (2d) 1044; In re Condemnation v. Boruff, 295 Mo. 28, 243 S.W. 167; Gailus v. Pauly Jail Bldg. Co. (Mo. App.), 282 S.W. 125; Schmidt v. St. Louis Railroad Co., 149 Mo. 269, 50 S.W. 921; Conley v. Kansas City Rys. Co. (Mo. App.), 259 S.W. 153; Radabaugh v. Williford (Mo.), 116 S.W. (2d) 118, 120; Manar v. Taetz (Mo. App.), 109 S.W. (2d) 721, 723; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W. (2d) 471; Clark v. Bridge Co., 324 Mo. 544, 24 S.W. (2d) 143, 153; Raymen v. Galvin (Mo.), 229 S.W. 747, 749; Chaar v. McLoon, 304 Mo. 238, 249, 263 S.W. 174; Bennett v. National Union Fire Ins. Co., 230 Mo. App. 939, 80 S.W. (2d) 914; Mitchell v. Dyer (Mo.), 57 S.W. (2d) 1082, 1083; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58, 63; Miller v. Williams (Mo.), 76 S.W. (2d) 355, 357; Unterlachner v. Wells (Mo.), 278 S.W. 79, 83; Nelson v. Evans, 338 Mo. 991, 93 S.W. (2d) 691, 694; Kennedy v. Phillips, 319 Mo. 573, 5 S.W. (2d) 33, 40; Thompson v. K.C.P.S. Co. (Mo. App.), 114 S.W. (2d) 145, 146; Ryan v. Burrow, 326 Mo. 896, 33 S.W. (2d) 928; Stolovey v. Fleming, 320 Mo. 946, 8 S.W. (2d) 832; Clark v. Reising (Mo.), 107 S.W. (2d) 33, 36; Derrington v. Southern Ry. Co., 328 Mo. 283, 40 S.W. (2d) 1069; Johnson v. St. Louis & Sub. Ry. Co., 173 Mo. 307, 318, 73 S.W. 173; Wolfson v. Cohen (Mo.), 55 S.W. (2d) 677; Mitchell v. Dyer (Mo.), 57 S.W. (2d) 1082, 1083; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58, 63; Miller v. Williams (Mo.), 76 S.W. (2d) 355, 357; Unterlachner v. Wells (Mo.), 278 S.W. 79, 83; Nelson v. Evans, 338 Mo. 991, 93 S.W. (2d) 691, 694; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W. (2d) 84; Schmidt v. Pitluck (Mo. App.), 26 S.W. (2d) 859; Anderson v. Asphalt Distributing Co. (Mo.), 55 S.W. (2d) 688, 86 A.L.R. 1033; Berthold v. Danz (Mo. App.), 27 S.W. (2d) 448; Sec. 967, R.S. Mo., 1929; 2 Mo. Stat. Ann., 1240; Bergfeld v. Dunham (Mo. App.), 201 S.W. 640.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between her Chevrolet motor car in which she was riding and defendant's motor truck and trailer driven by defendant's chauffeur.

The collision occurred on August 9, 1935, about two o'clock in the morning on U.S. Highway 66, about two and one-half miles west of Stanton. At the time of the collision the Chevrolet car was traveling west and the truck was traveling east.

The trial, with a jury, resulted in a verdict for the defendant and judgment was given accordingly. Plaintiff appeals.

Plaintiff and Marie Walsh operated a filling station, with tourist cabins and a restaurant, on U.S. Highway 66, near Bourbon. They closed their place of business about eleven P.M. and took a drive toward St. Louis without intending to go anywhere in particular. Miss Walsh drove the car and plaintiff rode in the front seat beside her. They stopped at a restaurant in Stanton, about fifteen miles from Bourbon, where they had sandwiches and a bottle of beer. They left the restaurant about two o'clock and drove back west towards Bourbon on U.S. Highway 66. Miss Walsh drove the car and plaintiff rode in the front seat beside her.

Plaintiff testified that it was foggy that night; that Miss Walsh was driving about twenty miles per hour; that they were traveling west on the north side of the road; that she saw some lights ahead on the north side of the road; that the lights went off with a flash, and with that Miss Walsh started to slow down, and she saw the truck turning toward its right-hand side of the road; that she couldn't distinguish it because it was too foggy; that it turned toward the right side of the road and then there was a crash; that when she first saw the lights they were on the north side of the road about thirty-five feet away; that then the lights went off and remained off until the collision occurred; that the truck crossed in front of her car to her left, and then she felt an impact; that she did not know what happened immediately after the accident; that when she regained consciousness she was on the highway and Miss Walsh was lying there alongside of her; that someone called an ambulance and put her in the front seat and Miss Walsh in the back seat; that Miss Walsh was dead; that the collision occurred on her right-hand side of the road; that she saw those headlights on her right-hand side of the road; that her car at no time got over on the wrong side of the road.

Plaintiff was taken to the office of Dr. P. Royse for treatment. The doctor testified that she was in agonizing pain; that she showed a laceration on the back of her head; that she complained of pain on movement of the head and pain all up and down the spine; that she had a contusion to the low cervical vertebra where it joins the thoracic vertebra at the back of the neck; that her neck was swollen quite noticeably by nine or ten o'clock that morning.

Tom P. Shaffer testified, on behalf of defendant, that he went to the scene of the accident about three o'clock in the morning; that there is a slight curve to the southwest in the highway; that traveling east there is a slight upgrade; that the truck was about two-thirds off the pavement on its right-hand side headed east; that the main impact had been at the rear wheels of the truck; that it turned them just back a little bit; that the Chevrolet was headed at an angle of about forty-five degrees; that there was broken glass pretty close to the truck; that the girls were out of the car when he got there and one of them was dead; that plaintiff was very hysterical; that he asked her if she didn't know what had happened and she said "No, I was asleep with my head on the girl's lap, and the next thing I knew I was being picked up;" that when he got to the scene of the accident he had them roll the Chevrolet back on the north shoulder of the highway so that traffic could get through.

Plaintiff testified that she was not asleep when the accident occurred, and did not tell Mr. Shaffer that she was asleep.

Wayne G. Henderson testified, for defendant, that he arrived at the scene of the accident about seven o'clock in the morning; that the truck was headed east; that the right wheels were on the shoulder and the front end of the truck was out just a little from the general direction of the outfit and the rear left wheel of the truck had been forced back about eighteen inches and the trailer had two or three dents...