Graham v. Conner
| Decision Date | 30 January 1967 |
| Docket Number | No. 8541,8541 |
| Parties | Willie David GRAHAM, a minor, by Sam Bodine, Guardian, Plaintiff-Respondent, v. Willis CONNER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Powell, Jones & Ringer, Marvin E. Jones, Dexter, for defendant-appellant.
C. H. Parsons, Jr., Dexter, Briney, Welborn & Spain, Joe Welborn, Bloomfield, for plaintiff-respondent.
For injuries allegedly sustained in a 'no eyewitness' accident in the City of Dexter, Missouri, on the afternoon of Saturday, October 31, 1964, plaintiff, then four years of age, obtained a jury verdict for $10,000 against defendant. From the judgment entered thereupon, as subsequently reduced by remittitur to $7,000, defendant appeals.
Defendant's primary contention that plaintiff did not make a submissible case requires a detailed review of the evidence. The accident occurred in a residential area on Vine, an east-west street, in the block between Elm and Locust. A north-south alley, eleven feet six inches in width, intersects Vine near the center of that block, Elm being 191 feet east of the center line of the alley and Locust being 188 feet west of that center line. The traveled blacktop roadway on Vine is 20 feet in width. Along the south side of the roadway, there is a dirt parking space ten feet in width and, south of the parking space, first a concrete curb, next a 'grassy area' or parkway six feet six inches in width, and then a paved sidewalk four feet in width. Along the north side of the roadway, there is a dirt parking space twelve feet six inches in width (with no curb or parkway) bounded on the north by a paved sidewalk. Much of this section of Vine is shaded by overhanging trees. In the south parkway, there is a venerable tree with very large trunk just east of the north-south alley, a row of thick bushes running east from that tree along the front of the first lot east of the alley, and another tree with somewhat smaller trunk a short distance west of the alley. In the north parking space, other large trees stand both east and west of the alley. Plaintiff Willie resided with his mother and stepfather (Chipman by name) in the first house west of the alley on the north side of Vine. The front of the Chipman house was fifteen feet north of the north sidewalk on Vine and the east end of that house was twenty feet west of the center line of the north-south alley.
Some thirty minutes prior to the accident, plaintiff's witness Nelson, a telephone repairman, parked the pickup truck used in his work, headed west, 'approximately in front' of the Chipman house and 'close' to the north sidewalk. His mission was to check 'cable trouble in the alley.' In Nelson's words, 'from the time I arrived there the little boy (plaintiff) was out in the yard, right in front of (the Chipman) house, playing with a little red wagon . . . and he was up on my truck and I was getting him off the truck, and I started (south from Vine) down the alley there hunting for cable trouble.' Using a 'stick' or 'rod' running on rollers along the overhead cable, Nelson located the trouble at a point in the alley 'approximately a hundred feet . . . that's just a guess' south of the south sidewalk on Vine. Plaintiff followed Nelson down the alley to the point of the cable trouble and was last seen (prior to the accident) at that point 'approximately a hundred feet down there' south of the south sidewalk. Telling plaintiff 'not to bother my equipment,' Nelson returned to his parked truck 'to get the tools out of the (north) side of the truck to fix the cable.' He had no idea 'how long it took' to walk back to the truck, but he 'walked at the normal rate of speed.'
While on the north side of his truck, Nelson first noticed defendant's 1960 Pontiac automobile westbound on Vine, then 'approximately 100, 150 feet' east of him, and traveling (so he thought on direct examination) at 'approximately ten, five to ten miles an hour' or (so he agreed on redirect examination) perhaps 'faster than ten miles an hour.' 1 Thereafter, Nelson did not watch, but remained aware of, defendant's approaching automobile--'from where was standing, even out of the side of your eyes you can see a car coming down the street there.' He thought that defendant had maintained about the same speed, but he declined to estimate the elapsed time between his initial sighting of defendant's automobile and the moment of accident. Defendant's course of travel was 'on his own proper side of the street,' i.e., on his right-hand (the north) side of Vine.
As we have noted, Nelson was on the north side of his parked truck; but, when asked 'whether or not your view was obstructed of the traveled portion of the . . . street,' he replied, 'no, I could see over the top of the truck.' Nevertheless, he testified emphatically that, after leaving the point of cable trouble in the alley, he did not see plaintiff again prior to the accident, and that he did not see the accident itself. However, he 'heard the thud' and, running around his truck, went to plaintiff lying on the blacktop 'sort of doubled up' at a point located by him (Nelson) as in the center of the 20-foot blacktop roadway, 'slightly ahead' or west of his parked pickup, and 50 to 60 feet west of the center line of the north-south alley. Defendant's automobile had stopped 'just at an angle there . . . headed northwest.'
Plaintiff's witness Capps, whose back yard abutted the north-south alley near the point of cable trouble (the north line of his lot was 106 feet south of the south sidewalk on Vine), had, while emptying trash in an alley receptacle, seen repairman Nelson and 'a child . . . I suppose it was a boy' under the cable where Nelson was working. 'Later, I don't know how many minutes it was . . . I left the alley and went back in the yard, and I heard a noise . . . it would be pretty hard to describe . . . well, I heard an impact of some kind . . . I heard tires squealing, I also heard a thud, which come first I couldn't swear to it . . . whose thud it was and whose tires it was, I don't know.' Anyway, Capps 'went to the direction of the noise . . . over on Vine Street' and found plaintiff lying 'close to the center line of the street' at a point which was 'west of the telephone truck.' Capps' initial statement that, when he arrived at the scene of accident, defendant's automobile was standing 'on the north side of the street, maybe a car length or a car length and a half beyond (west of) the boy' must be read in connction with his subsequent explanation and elaboration that 'it was parked on the shoulder when I got there . . . somewhat north of where the normal traffic lane is . . . he had pulled free of traffic.'
The only other witness whose testimony in any wise pertained to the accident itself was plaintiff's witness Ruth Corlis who was 'sitting there crocheting' in the house west of the Chipman house when (as she said at one point) 'I heard a bump like' or (as she put it later) 'I didn't hear anything any more than just the two cars that sounded like a thump or two cars maybe kind of bumped a little.' When Miss Corlis arose and went to the window--'I didn't go out of the house'--she saw 'two cars . . . standing there, one on the south side of (Vine) street and one on the north side, and a bunch of folks had got out of the cars and was standing there in the middle of the street,' all of which prompted the witness to volunteer 'I think it was a car wreck.' There was no known eyewitness to the accident.
Plaintiff also introduced in evidence certain interrogatories propounded to defendant and his answers thereto. The substance of those answers was that no eastbound traffic on Vine had passed his automobile 'immediately prior to the accident' and he was meeting no such 'oncoming traffic at the time of the accident'; that nothing had obstructed his 'vision of Vine Street just prior to the accident'; that he had not seen plaintiff prior to the accident and therefore had sounded no warning; and that 'the point to impact' beteen his automobile and plaintiff had been 'about ten feet west of the (north-south) alley.'
After his motion for a directed verdict at the close of plaintiff's case was overruled, defendant offered no evidence. Whereupon, plaintiff submitted his case to the jury on a single assignment of primary negligence, i.e., that 'defendant failed to keep a careful lookout.' By that submission, plaintiff abandoned all other pleaded grounds of negligence 2 and, in determining the sufficiency of the evidence to make a prima facie case, we must confine ourselves to the sole ground submitted. 3 In that inquiry, we consider the evidence in the light most favorable to plaintiff and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence (Ornder v. Childers, Mo., 327 S.W.2d 913, 915(1); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(8)), tempered only by the wise, judicious limitation that this rule calls for consideration of all, not merely an isolated part or parts, of the facts shown by plaintiff and does not require the court to supply missing evidence, or to give plaintiff the benefit of forced or unreasonable inferences, or to disregard the dictates of common reason and accept that which, on the whole record, obviously is not true. 4
Plaintiff's theory of submissibility is a concatenation of assumptions (in some particulars alternative and diverse), combined with precise mathematical calculations employing imprecise estimates or approximations of speeds, and colored with an occasional dash of inaccuracy. The basic assumption is that, immediately prior to the accident, plaintiff approached the course of defendant's automobile from the south. As developed in plaintiff's brief, counsel's theory of submissibility then encompasses and harnesses these further assumptions, to wit (1) that, as defenda...
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