Eller v. Crowell
| Decision Date | 12 February 1951 |
| Docket Number | No. 1,No. 41902,41902,1 |
| Citation | 238 S.W.2d 310,361 Mo. 1151 |
| Parties | ELLER v. CROWELL et al |
| Court | Missouri Supreme Court |
George F. Heege, Clayton, for appellant Crowell.
Everett Hullverson, St. Louis (Forrest Boecker, St. Louis, of counsel), for respondent.
Plaintiff (respondent) brought this action for damages for personal injuries sustained in a collision of an automobile operated by defendant (appellant), Charles Crowell, and in which respondent was a passenger, with an automobile operated by defendant, Clarence Dixon. The jury found the issues in favor of respondent as against appellant Crowell, and assessed the amount of his damages at $15,000, and further found in favor of defendant Dixon. Judgment was rendered accordingly.
Appellant assigns error: (1) in the refusal of the court to admit proffered testimony of witness Gamble; (2) in the refusal of the court to send appellant's exhibits two and three (photographs taken at the scene) to the jury room after its request for them; (3) in giving six instructions submitted by respondent and one submitted by defendant Dixon; and (4) that the verdict is grossly excessive.
The collision occurred on the 25th day of March, 1948, in the 8600 block on St. Charles Rock Road in St. Louis County. It is a paved four-lane highway extending east and west at that point. Each of the lanes is ten feet in width. A white line is painted along the center of the highway. The two lanes on the north of the center line are for westbound traffic and the two on the south are for eastbound traffic.
While we state, as we must, the facts from respondent's viewpoint, yet we also set forth such of the evidence adduced in behalf of appellant and defendant Dixon as is necessary to decide the several assignments of error.
Respondent, a painter and paper hanger by trade, had been engaged in that work at appellant's home. He and appellant were returning to appellant's home in appellant's automobile with a supply of wallpaper when the collision occurred. Appellant was operating his automobile westward and defendant Dixon was operating his automobile eastward. As appellant drove westward toward the point of collision, they came up behind a car going in the same direction, which appellant passed. This car was straddling the center line between the two north lanes of traffic and in passing it appellant encroached two or three feet beyond and south of the center line of the highway. As they passed this automobile, appellant was showing respondent how his brakes worked and they had been looking down at them. Respondent looked up and saw defendant Dixon's automobile approaching from the west at a distance of about seventy-five feet from them. It had encroached about one foot north of the center line. Respondent exclaimed, 'Look out!', but appellant neither swerved nor slowed his car nor gave any warning. The two cars came into head-on collision while both were astraddle the center line of the highway and seventy-five or a hundred feet from the point where appellant had passed the other car.
Appellant testified that just prior to the collision he had passed a car back near Walton Road and had then pulled back into the westbound lane of traffic and that there was then a truck proceeding westward in that lane three hundred feet ahead of him. He admitted that he never saw the Dixon car and could not say with certainty he had gotten entirely over into the outside lane for westbound traffic when the collision occurred. He further testified that just prior to the collision he was driving about twenty-five miles per hour and could have stopped his car within thirty or forty feet.
There was other testimony in behalf of appellant that after passing the westbound car, appellant's car had gotten completely over into the north lane of traffic when the brakes on defendant Dixon's car, then travelling eastward on the inside lane of traffic for eastbound cars, were heard to screech and his car suddenly made a complete circle to the left, going over into the north line of the traffic and the right side thereof came into collision with appellant's car. Defendant Dixon's car was badly damaged on the right side and the right front tire had blown out. Appellant infers from this testimony that as appellant's car, travelling westward in the north lane of traffic, and defendant Dixon's car, travelling eastward in the south lane of traffic, approached each other, the right tire of defendant Dixon's car blew out causing it to suddenly swerve in a circling movement into the north lane of traffic immediately in front of appellant's car.
Defendant Dixon's testimony was that just prior to the collision he was travelling eastward in the extreme south lane of traffic behind a truck also going eastward, and that as he pulled into the inside lane of traffic for eastbound cars and was in the act of passing the truck, appellant Crowell's car suddenly came over into the south lane of traffic some fifteen feet in front of him, and the collision occurred on the inner eastbound traffic lane.
The court, in behalf of respondent, submitted the case as against appellant on the question of his failure to keep a lookout, failure to keep as near the right hand side of the highway as practicable, operation of his car on the wrong side of the highway, and under the humanitarian doctrine. At the request of each of the defendants, instructions were given exonerating him if the collision was solely caused by specified negligence of the other.
Appellant alleges error in the exclusion of proffered testimony of witness Paul Gamble. Following the collision on March 25, 1948, defendant Dixon's car was towed to the garage of St. Louis County Auto Parts. Witness Gamble, an automobile inspector and appraiser, testified that on the 8th day of April, 1948, he examined the car at that place. He was then asked to describe its condition. An objection was sustained on the ground it was not shown to be in the same condition as it was immediately following the collision. Appellant then made an offer of proof, which the court, upon objection, refused. The proffer was: 'I offer to show by this witness that this automobile was damaged entirely on the right hand side and not on the front, and that all of the tires on the automobile were intact except the right front tire, which was down; and I offer further to show by this witness, as an expert, that in the event the right front tire blew out or became deflated, that the car would swing around to the right, that the right side would swing to the right, which would cause it to go over on the other side of the highway where the defendant Crowell's car was.'
Appellant should have been permitted to show that the front of Dixon's car was not damaged and that all of the damage was on the right side. This would have corroborated his theory that following a tire blowout Dixon's car had suddenly curved sharply to the left and into the north lane of traffic and there collided with appellant's car. Had the proffer stopped there, there could be no question of the soundness of appellant's contention, but the remainder thereof is clearly objectionable. No showing whatever had been made either that automobiles are likely to take a particular course when a certain tire blows out or that the witness, an automobile inspector and appraiser, had any knowledge or experience qualifying him to give expert testimony on that score. Where testimony is properly excluded, the court's ruling must be sustained even though based upon another ground. Gates v. Dr. Nichols' Sanatorium, 331 Mo. 754, 55 S.W.2d 424, 428. Furthermore, when 'an offer of evidence is mixed up with matters clearly incompetent, the trial court is not required to sort out the competent from the incompetent, but it can reject the whole offer.' Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918, 923; Harrison v. St. Louis-San Francisco Ry. Co., 339 Mo. 821, 99 S.W.2d 841, 845.
Appellant contends the court erred in refusing to send to the jury room certain photographs (appellant's exhibits 2 and 3) taken at the scene of the collision when the jury made a request for them. These exhibits were passed to the jury and examined by the jurors when admitted into evidence. After the jury retired to consider its verdict, it sent a message to the court that it would like the privilege of examining them. The judge thereupon conferred with counsel for the parties. Counsel for respondent objected on the ground it would give undue prominence to that part of the evidence. After considerable colloquy, the court refused the request.
At common law the practice was against allowing the jury to take exhibits to the jury room. It is now the rule, however, that the court may in its discretion allow them to be taken. 53 Am.Jur., Trial, Secs. 924, 927. 'While the cases in this state hold that the trial court may, in its discretion, permit the jury to take to the juryroom books, papers, documents, or other articles, admitted in evidence, no case has been brought to our attention wherein reversible error has been predicated upon the refusal of the court to grant such permission.' Dougherty Real Estate Co. v. Gast, Mo.App., 95 S.W.2d 877, 880. See also Holtz v. Daniel Hamm Drayage Co., 357 Mo. 538, 209 S.W.2d 883, 886. The oral evidence covered in detail all of the subject matter shown in the photographs and the jurors had seen them when they were passed to them for examination. Under these circumstances, we cannot hold as a matter of law that the court abused its discretion.
Appellant's next assignment is that Instruction No. 4, submitting certain issues under the humanitarian doctrine, was erroneous in that it omitted as one of its elements that appellant 'should not have been required to swerve the course of his car unless it could have been done with safety to others on the highway.' The cases of Spoeneman v. Uhri, ...
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