Jefferson v. Biggar, 51932

• Decision Date: 10 July 1967
• Docket Number: No. 2,No. 51932,51932,2
• Citation: 416 S.W.2d 933
• Parties: Joe JEFFERSON, Appellant, v. Susam B. BIGGAR, Respondent
• Court: Missouri Supreme Court

Page 933

416 S.W.2d 933

Joe JEFFERSON, Appellant, v. Susam B. BIGGAR, Respondent.

No. 51932.

Supreme Court of Missouri, Division No. 2.

July 10, 1967.

Robert L. Shirkey, Kansas City, for appellant.

Thomas J. Leittem, John H. Altergott, Jr., Shughart, Thomson & Kilroy, Kansas City, for respondent.

EAGER, Judge.

This is an action for personal injuries arising from the collision of two automobiles. The collision occurred in the intersection of 71st Street, otherwise known as Gregory Boulevard, and the northbound lanes of Ward Parkway in Kansas City on the morning of June 3, 1964. Ward Parkway is a divided road with a wide medial strip. The verdict was for defendant on plaintiff's claim and for plaintiff on defendant's counterclaim, which was merely for property damage. Only plaintiff has appealed, and since he sought to recover $25,000, we have jurisdiction. No question is raised on the sufficiency of the evidence. The two points of appellant's brief concern the alleged incompetency of certain evidence and the giving of defendant's instruction on contributory negligence.

Plaintiff was a janitor and maintenance man for a real estate firm located near 63rd and Brookside, on the Brookside Plaza; he also did maintenance work in apartment buildings operated by it, and he was on his way to such a building at the time of this collision. Defendant was a housewife and she was transporting seven school children north on Ward Parkway. At this point Gregory was 40 feet wide from curb to curb; the northbound lanes of Ward Parkway (consisting of three lanes) were 30 or 32 feet wide. The intersecting curbs were rounded, so that Gregory expanded as it entered the Parkway. A pedestrian cross-walk on Gregory was set back perhaps 25--30 feet from the east curb of Ward Parkway. There were residences all along the south side of Gregory and trees in the space between the curb and the sidewalk both on Gregory and Ward Parkway; the residence and yard on the southeast corner were raised a few feet above the street level and there was shrubbery and also at least one tree in the yard on the Gregory side. The intersection was and is normally controlled by traffic lights which are plainly visible to traffic approaching from all directions. Plaintiff was driving a 1957 Chevrolet station wagon, defendant a 1964 Chevrolet station wagon.

According to undisputed evidence from the Kansas City Power and Light Company, the traffic lights at this intersection were not functioning from 9:03 to 9:45 a.m. on that day, due to some malfunction in the circuit covering that area. Thus, the precise time of the collision was material. Plaintiff testified that he 'checked out' of his place of employment at 9:30 to go to a specific job; that he picked up some material in the basement, got his car from the lot, traveled on Brookside Road to Gregory, and that in his best judgment he reached the intersection at 9:45. He further testified: that he was traveling (west) slightly to the right of the center line of Gregory, that there were no cars ahead of him, and that he saw from 'a hundred feet' the green traffic light; that he then 'slightly looked to my left,' (the direction from which defendant came) but couldn't see very far 'for this blind corner,' and he saw no cars; he then 'slightly looked to my right,' then looked ahead 'at the light that was green,' did not look back to his left, and 'kept on going' across at about 25 miles an hour. He did not recall seeing defendant's car prior to the collision. Plaintiff's car came to rest on the medial strip, and he testified that he did not remember anything else clearly for three days; he further testified that he did not swerve, did not apply his brakes, sounded no horn, and did not slow down. He related in some detail his prior activities to explain the reason why he thought the collision occurred at 9:45.

The defendant's version of the affair, as expected, was substantially different. She testified: that 'to her knowledge' the collision occurred between 9:15 and 9:30; that from a distance of about two blocks south of the intersection she saw that the traffic lights were 'out'; that she looked again before she entered the intersection and that the lights were still out; that a car in front of her turned right on Gregory and she slowed; that she looked to her right on Gregory and saw no car, this apparently from a point about three car lengths south of Gregory; that she entered the intersection at 15--20 miles an hour and was about half way through it when she saw plaintiff's car 'off the front corner' of her car; that she was afraid to turn left, thinking that plaintiff might hit the rear of her car where the seven children were; that she applied her brakes fully and immediately and almost stopped; that just before the impact plaintiff 'jerked up and looked at me,' turned to his right and went off into the parkway (medial strip); that she moved her car out of the intersection. She was uncertain as to the source of a statement in a report of accident made by her to the effect that the collision occurred at 9:45 a.m.; she stated that 'they' probably took it from the police report, and explained in detail (from a recital of the school activities) why she believed it occurred earlier.

Manfred W. Guenther, an office of the Kansas City Police Department, called by the plaintiff, arrived at the scene at 10:00 a.m., having received the call at about 9:48; he talked to plaintiff and defendant and to two witness whose names and addresses he took; he listed the time of the accident as 9:45, but stated that this was his own estimate from talking to the drivers and the witnesses, and that he could not recall definitely whether he asked the defendant that question; that defendant stated that she first realized the danger when plaintiff was one car's length away and when she was traveling at about 15 miles an hour; that plaintiff told him that he had a green light and did not 'realize any danger prior to the impact'; that plaintiff's car left no skidmarks; that defendant's car left 12 feet of 'actual skid,' or 22 feet of 'overall' skid, which led to a point 39 feet north of the south curb of Gregory and four feet west of the east curb of Ward Parkway, before breaking to the left; at one time he testified to debris or 'shake-down' at that location but later indicated that he had fixed the point only by skidmarks. On cross- examination, after the officer had given the names and addresses of the two witnesses whom he had interviewed, he was asked whether he had asked them whether the traffic lights were 'out or functioning'; this was objected to as hearsay and for the reason that plaintiff would have no right of cross-examination; the objection was overruled and the witness replied that 'Both of the witnesses stated to me that the lights were not functioning, that they were completely out at the time the accident occurred,' and that his report reflected this.

Both of the witnesses referred to by the officer appeared and testified for the defendant. One, Robert L. Cunningham, had stopped in the medial area, going east on Gregory, waiting for the traffic to clear. He testified: that he actually saw the collision; that all the traffic lights were out; that he saw plaintiff's car but did not pay much attention to it until he saw that it was not going to stop; that he also saw defendant's car coming north and intended to cross after it passed; that plaintiff did not slow up; that defendant 'hit her brakes' and almost stopped; that after the collision he proceeded on across, parked his car and came back to the scene, and that the lights were still out at that time; that he gave his name to the officer and told him that the lights were off. On cross-examination counsel for plaintiff questioned the witness further about the lights, and developed the fact that after the collision he had 'deliberately looked' at the lights because he figured that the 'question' would come up later. In the judgment of this witness the lights came back on about five minutes after the collision. This witness (on recross-examination) identified a written statement he had given to plaintiff's counsel and was examined concerning it, but the offer of the statement in evidence was refused. The other witness, Michael Royse, had stopped in the southbound lanes of Ward Parkway at Gregory, saw that the traffic lights were out, saw plaintiff's car coming west, and saw the accident. He testified: that the lights remained out for 5--10 minutes after the collision; that he told the officer that the lights were out at the time; that he first went to look at the cars, and then went back and moved his car at which time he saw that the lights were still out.

The damage to plaintiff's car was at the left front door. The principal damage to defendant's car was to the front of the right fender, the extreme right headlight and the hood. The ordinances of Kansas City concerning signal lights at controlled intersections, right of way at uncontrolled intersections, and speed at uncontrolled intersections were offered and received in evidence. Motions of defendant for a directed verdict were overruled. We shall refer to certain instructions hereinafter.

The first point made by plaintiff is that the court erred in receiving the testimony of the officer that the witnesses told him that the traffic lights were out; this, plaintiff says, was pure hearsay, depriving him of the right of 'confrontation' of these witnesses. There is no doubt that the statements as testified to were hearsay unless admissible as res gestae, a theory which defendant urges. We have no difficulty in ruling that these statements were not admissible as res gestae. They were made at least 15 minutes after the collision, they were not spontaneous utterances, they were made after a lapse of time permitting thought and deliberation, and they constituted mere narrative descriptions of an event; they...