Fowler v. Robinson

• Decision Date: 23 February 1971
• Docket Number: No. 33660,33660
• Parties: Clarence Fowler and Pearl Fowler, Plaintiffs, Clarence FOWLER, Plaintiff-Respondent, v. Famous ROBINSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 5

465 S.W.2d 5

Clarence Fowler and Pearl Fowler, Plaintiffs, Clarence FOWLER, Plaintiff-Respondent, v. Famous ROBINSON, Defendant-Appellant.

No. 33660.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 23, 1971.

Morris, Wuestling & James, Richard C. Wuestling, III, St. Louis, for defendant-appellant.

Marvin S. Wood, Clayton, for plaintiff-respondent.

WEIER, Commissioner.

Clarence Fowler, a pedestrian, sued Famous Robinson, a motorist, for personal injuries. From a verdict and judgment favoring plaintiff and awarding him $10,000.00, defendant has appealed. Defendant on appeal relies on two points: 1) plaintiff failed to make a submissible humanitarian case; and, 2) the court erred in restricting defendant's final argument regarding the actions of a third party, Gary Plass, being the real cause of the accident.

As to the first point, defendant contends the trial court erred in failing to sustain his motion for directed verdict filed at the close of all the evidence because the evidence failed to establish a basis for recovery upon any theory of liability. Plaintiff counters by asserting that his humanitarian submission on failure to stop or slacken speed was sustained by the evidence. We therefore address ourselves to the evidence to determine from that portion most favorable to the winning party, the plaintiff, whether the jury might have been able to arrive at their verdict without speculation or conjecture. Higgins v. Paul Hardeman, Inc., Mo.App., 457 S.W.2d 943, 944(1).

Clarence Fowler was employed by the City of St. Louis as a toll collector on MacArthur Bridge. At about 1:45 on the morning of October 5, 1967, he was stationed on a raised platform known as a toll island, some 9 inches high, 3 feet 7 inches wide and 37 feet 6 inches long, linearly parallel to the north and south curbs of the vehicular deck of the bridge and so positioned that it was 9 feet 1 inch from the south curb and 16 feet 10 inches from the north curb. Tolls were collected from vehicles by Fowler when they passed this island.

Traffic was light this early morning. The weather was chilly and dry. An automobile approached the toll island from the west, or Missouri side, at a speed estimated by Fowler to be 60 to 80 miles per hour. As it got closer to him it seemed to sway and to veer toward a shelter structure on the south side of the bridge. Seeking a place of safety, Fowler looked to the east, or Illinois side, saw the west-bound automobile driven by the defendant Robinson, and ran straight across toward the north side of the bridge. According to Fowler, he was struck by Robinson's automobile when he was one foot from the north curb.

Since Fowler's account of distance gave rise to the principal issue on appeal, we review the testimony on distance in some detail. First in narrating what he did prior to the collision, Fowler said he observed the car coming from the west at a high speed. It started to sway and appeared to cut toward the shelter. This was where he generally ran to avoid a car 'if there's going to be an accident.' When he saw the car approaching from the west, he then looked at the Illinois side and 'seen this man (referring to Robinson) one hundred and fifty feet away and that he had plenty of time to get across the bridge.' Counsel for defendant interrupted, and objected to the narrative form of the question, which was sustained by the court. A few questions later, on direct examination, after going over the previous narration as to seeing a car coming from the east, a leading question was asked, 'And you said it was one hundred and fifty feet away?' Fowler answered, 'Yes, sir.' Question, 'And then you started to run towards the north curb, did you?' Answer, 'Yes, sir.' In going over the same matter on cross-examination, defendant's counsel asked Fowler that he saw when he looked east. His reply was, 'I seen this car about one hundred and fifty feet away, and started to go across to the south (sic) side of the sidewalk from the mound.' Repeating, by leading question, 'So that last time you saw him he was a hundred and fifty feet away?' Answer, 'Yes, sir.'

Before plaintiff's case was closed, portions of the deposition of defendant Robinson were read into the evidence, without objection. One portion commenced with the question, 'Yes; when you first saw Mr. Fowler, do you know where your car was with reference to the east end of the island?' Answer, 'Maybe fifteen foot.' Then followed, 'Now, with reference to the island, can you tell me where the impact took place between year car and Fowler?' Answer, 'About center, I guess.'

In defendant's case, on direct examination, Robinson again testified that he was about 15 or 20 feet from the island when he first saw Fowler.

Other factors of time, speed and distance were established by the testimony of plaintiff and defendant. Robinson's highest speed on the bridge was 20 to 25 miles per hour. He was still travelling at that speed when he saw Fowler right at the island in the street running. Robinson admitted on deposition read into evidence that he was still going about the same speed when he struck Fowler. Fowler saw only the car and the lights. He frankly admitted he had no estimate of its speed. Further, he never saw the car again after he looked the one time.

As to his running course, Fowler testified he started from the center of the island and ran straight across to the north side about twice as fast as he could walk. Robinson said when he first saw Fowler he was running as fast as he could from a point near the center of the island toward the north more at an angle away from the path of the car. After he struck Fowler, his car travelled 10 to 15 feet before it stopped.

We are not favored with the testimony of any eye witness other than the parties. Gary Plass, the driver of the car coming from the west, was killed when his car struck the concrete abutment at the west end of the island.

Plaintiff requested the court to take judicial notice of the propositions that a factor of 1.46 times speed will produce the correct number of feet travelled per second and that the average walking speed of a pedestrian is 2.9 to 4.4 feet per second.

Defendant's contention on appeal is that this evidence failed to establish any basis for a recovery against defendant on any theory and particularly on plaintiff's theory. The main thrust of his argument is that plaintiff established by positive and unequivocal evidence that defendant's oncoming vehicle was 150 feet away when Fowler started his run of 16 feet 10 inches from the island to the north curb. And further that, based on a running speed of 5.8 feet per second, Fowler would have had time not only to run across the lane to the north curb, but also to have turned and waved at Robinson when he went by. Obviously, if we accept this separation distance of 150 feet as a dimensional absolute, Fowler could never have been in a position of immediate danger and thus would not have satisfied the requirement of supplying that element in his humanitarian submission.

Defendant's contention places us in one of the most troublesome areas in the law of evidence. It is the extent to which a party is concluded by his own testimony adverse to his contention in the litigation. 32A C.J.S. Evidence § 1040(3), p. 776.

Certainly, it is clear that a party may preclude himself from disputing an issue by giving clear and unequivocal testimony in the trial of a case on this issue which has the effect of a judicial admission and thereby may deprive himself of the benefit of favorable testimony from others. Hecker v. Schwartz, Mo., 426 S.W.2d 22, 25. As stated in Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743, 747, and adopted with approval in Hecker, supra:

'But a party's testimony on the stand as a witness may be of such a nature as to have the effect of a judicial admission which not only relieves the opponent from adducing evidence, but precludes the party himself from disputing it, either by his own testimony or by other witnesses. Wigmore, Evidence, Sec. 2495a (3rd Ed.). Thus, if a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. In the absense of such an explanation, the party may not have the benefit of any testimony which is contrary to his own testimony, whether given by himself, Steele v. Kansas City Southern R. Co., 265 Mo. 97, 175 S.W. 177, by his adversary's witnesses, Elkin v. St. Louis Public Service Co., 335 Mo. 951, 958, 74 S.W.2d 600, or by his own witnesses. Mollman v. St. Louis Public Service Co., Mo.App., 192 S.W.2d 618, 621, and cases cited. Where, however, the testimony of a party is not a positive statement of fact within his own knowledge, but is a mere estimate or opinion, it does not have the effect of a judicial admission. This is especially so as to the circumstances of an accident or similar event, because in such a case the party's testimony is subject to inexactness of observation and memory. See Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144, 80 A.L.R. 619, a leading case. Thus a party is not conclusively bound by his mere estimate of time, speed or distance, or the position of an automobile or train at the time of an accident. His testimony in regard to such matters does not preclude him from relying upon the more favorable testimony of other witnesses in the case, unless the testimony of the other witnesses is inconsistent with his theory of the case or contrary to physical facts. * * *.'

See also: Vaccaro v. Moss, Mo.App., 410 S.W.2d 329, 331(3,...