Hollensbe v. Pevely Dairy Co.

• Decision Date: 05 May 1931
• Docket Number: No. 21463.,21463.
• Citation: 38 S.W.2d 273
• Parties: HOLLENSBE v. PEVELY DAIRY CO.
• Court: Missouri Court of Appeals

38 S.W.2d 273

HOLLENSBE v. PEVELY DAIRY CO.

No. 21463.

St. Louis Court of Appeals. Missouri.

May 5, 1931.

Rehearing Denied May 19, 1931.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Elmer Hollensbe against the Pevely Dairy Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Wilbur C. Schwartz, of St. Louis, for appellant.

Callahan & Callahan and John A. Moore, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on December 10, 1928, in an automobile collision which occurred some fifty or seventy-five feet west of Compton avenue on Chouteau avenue, in the city of St. Louis. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $5,000; and, from the judgment rendered, defendant, after the overruling of its motion for a new trial, has duly perfected its appeal.

Plaintiff was the proprietor of a garage located at 1493 Shawmut place; and on the day in question, in company with one Clay Martin, a mechanic in his employ, he was driving eastwardly on Chouteau avenue, his destination being a paint shop where he had left an automobile to be repainted. He and Martin were riding in a Ford roadster, with Martin at the wheel. They were driving in a line of traffic, and at the point of the accident they were forced to come to a complete standstill behind a street car, which had stopped to discharge passengers. There were two automobiles between the rear of the street car and plaintiff's automobile, and there was an intervening space of ten feet between the Ford and the car immediately in front of it.

The Ford was standing midway between the curb and the street car track, and, after it had been at a standstill for fully a minute, it was struck in the rear by defendant's Chevrolet truck with such force as to drive it forward against the car in front of it. Plaintiff was thrown up against the windshield, which was broken by the impact, and, as the door flew open, he fell down upon the floor, with his feet protruding from the car.

The testimony of an eyewitness to the accident was that defendant's truck was being driven at a speed of twenty-five miles an hour; that its speed was first brought to his attention when it was yet some forty or fifty feet in the rear of plaintiff's car; and that there was no noticeable decrease in the speed of the truck until the moment of the collision, nor was it swerved out of its course. Other evidence was that, under conditions as they existed, and with the brakes of the truck in good condition, it could have been brought to a stop from a speed of twenty-five miles an hour in a distance not exceeding twenty feet. However, there was testimony that the driver of the truck stated after the collision that his brakes were not working properly, and for that reason he was not able to stop.

The testimony of the driver of the truck was that he was following some ten feet in the rear of plaintiff's automobile, at a speed of fifteen miles an hour; that the Ford, in order to pass a moving truck which was backed up against the curb, moved over in front of the Chevrolet, so as to make a collision unavoidable; that the force of the collision was slight, the Chevrolet having meanwhile been slowed down to a speed of four or five miles an hour; that the brakes were in perfect condition; and that at a speed of fifteen miles an hour, the truck could have been stopped in fifteen feet, and at twenty-five miles an hour, in twenty feet.

In his petition, plaintiff counted upon the humanitarian doctrine, as well as upon certain assignments of primary negligence, to the effect that "said defendant, by its said chauffeur, as aforesaid, failed to operate and drive said truck on said street and highway in a careful and prudent manner, and at a rate of speed that did not endanger the property, life, and limb of another on said highway, and particularly the plaintiff, and failed to exercise the highest degree of care thereat in that said truck was driven in too close proximity to said standing automobile, and in that said truck was not under control, and was being negligently operated at such rate of speed that the same could not readily be stopped, and in that no signal or warning was given from said truck, and in that the said chauffeur negligently failed then and there to slow down, stop, or swerve said truck, when he could have done so in the exercise of the highest degree of care."

The answer of defendant was a general denial.

The first point urged by defendant for a reversal is that error was committed in connection with the admission of certain testimony during the course of the direct examination of plaintiff himself; the matters complained of appearing from the following portion of the record:

"Mr. Callahan: Describe the condition of your back, Mr. Hollensbe, since the accident.

A. Since the accident?

"Q. Yes. A. Well, starting in after—when I first was able to get out of bed?

"Q. Yes. A. And be around?

"Q. Yes. A. Well, from that time I wore supports; I wore supports until—oh, say about three or four months ago, to support my back and my side, and from that time, why—well, in fact, all the time that I was wearing those supports and up until now even my back is not stout, or not back in the same condition it was before, by any means.

"Q. What do you mean by `wearing supports?' A. Well, I had to wear something to hold myself together; my hip—seemed like my back and whole side was so sore here, and if—I couldn't move—in other words, at times I couldn't even get out of bed if I didn't have my support, and the support was made up of adhesive tape—

"Mr. Schwartz (interrupting): I ask all of that be stricken out; no charge in the petition it was necessary to wear any supports at any time, and I claim surprise on that; and for the further reason that he never testified to anything about that in his deposition taken a year later.

"The Court: That may have been treatment the doctor advised for that condition. Be overruled.

"Mr. Schwartz: I except.

"To which ruling by the Court, the defendant, by its counsel, then and there excepted at the time and still excepts.

"Mr. Callahan: Well—

"The Court (interrupting): That is, I overrule the objection at this time on the condition that you connect this up.

"Mr. Callahan: What is that, Your Honor?

"The Court: I will overrule the objection at this time on the condition you connect this testimony.

"Mr. Callahan: I see.

"The Court: If that formed a part of the treatment, of course, it would be competent; otherwise, it would not."

In line with his objection in the lower court, counsel for defendant questions the propriety of the testimony concerning the use of "supports." He argues that such testimony was improper and unwarranted under the pleadings, because there was no charge in the...