Lappin v. Prebe

• Citation: 131 S.W.2d 511,345 Mo. 68
• Decision Date: 12 September 1939
• Docket Number: 35776
• Parties: Edith Lappin v. Albert Prebe and Fred Prebe, Copartners, Doing Business as Prebe & Son, Appellants
• Court: United States State Supreme Court of Missouri

131 S.W.2d 511

345 Mo. 68

Edith Lappin v. Albert Prebe and Fred Prebe, Copartners, Doing Business as Prebe & Son, Appellants

No. 35776

Supreme Court of Missouri

September 12, 1939

Appeal from Marion Circuit Court; Hon. Edmund L. Alford Judge.

Reversed and remanded (with directions).

Harry Carstarphen for appellants.

(1) The ruling of the trial court was that the verdict was not against the weight of the evidence. All points of the motion for new trial not designated in the order sustaining the motion for new trial are presumed to be overruled. Gardner v. St. Louis Union Trust Co., 85 S.W.2d 86; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649. (2) There was no case made by the plaintiff under the evidence for the jury, and therefore motion for new trial should not have been sustained in any event. United Construction Co v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; Raw v Maddox, 230 Mo.App. 515, 93 S.W.2d 282; Frees v. Hosack, 119 S.W.2d 460; Battles v. United Rys. Co., 178 Mo.App. 596, 161 S.W. 614. (3) When positive facts appear pretended inferences take flight. (a) The facts that plaintiff contends create certain inferences, also create certain other inconsistent inferences that disprove plaintiff's theory. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391; Fowler v. Santa Fe Elevator Co., 143 Mo.App. 422; Grindstaff v. Goldberg & Sons Structural S. Co., 328 Mo. 72, 40 S.W.2d 702. (b) All of the facts when taken in the case put plaintiff's claimed inferences to flight. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391; George v. Mo. Pac. Ry. Co., 213 Mo.App. 668, 251 S.W. 729; Burge v. Wabash Ry. Co., 244 Mo. 76, 148 S.W. 925; Rashall v. St. Louis, I. M. & S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282; McGrath v. St. Louis Transit Co., 197 Mo. 97; Grindstaff v. Goldberg & Sons Structural S. Co., 328 Mo. 72, 40 S.W.2d 702; Quisenberry v. Met. Street Ry. Co., 142 Mo.App. 275; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777; State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Battles v. United Rys. Co. of St. Louis, 178 Mo.App. 596, 161 S.W. 614; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956. (4) Inferences may not be built on inferences and thereby pyramided to create a liability. State ex rel. City of Macon v. Trimble, 12 S.W.2d 727; Layton v. Chinberg, 282 S.W. 434; Yarnell v. K. C., Fort Scott & M. Ry. Co., 113 Mo. 570; Hamilton v. St. L.-S. F. Ry. Co., 318 Mo. 123, 300 S.W. 787; State ex rel. Mo. Public Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551.

Gray Snyder, Robert L. Jackson and Ben Ely for respondent.

(1) In passing upon the propriety of granting or refusing a peremptory instruction or demurrer to the evidence, all the defendants' evidence except such as is favorable to the plaintiff must be completely disregarded and all of the plaintiff's evidence must be taken as true, unless contrary to established laws of nature and admitted physical facts, and the court must draw from the evidence every possible inference in favor of the plaintiff. Morris v. Equitable Life Assur. Soc., 102 S.W.2d 569; Tate v. M., K. & T. Railroad Co., 93 S.W.2d 873; Archer v. Sears, Roebuck & Co., 105 S.W.2d 959; Albert v. Met. Life Ins. Co., 95 S.W.2d 354. (2) Where, as here, the evidence tends to show that an automobile overtakes a pedestrian from behind and strikes him, the road being straight, visibility good and the lights of the car burning, the doctrine of res ipsa applies and negligence of the driver is presumed. Miller v. N. Y. Taxi-cab Co., 120 N.Y.S. 890; Spina v. N. Y. Transportation Co., 96 N.Y.S. 270; Johnson v. Herring, 84 Mont. 4, 300 P. 535.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This is an appeal by defendants Albert and Fred Prebe, father and son, engaged as partners in a trucking business, from an order sustaining plaintiff's, Edith Lappin's, motion for new trial in an action for $ 10,000 damages for the alleged wrongful death of her husband, R. C Lappin. The court assigned error in the giving of instructions on behalf of defendants as the ground for new trial. Defendants' principal contention is that plaintiff failed to make a case. Of course, a defendant's instructions do not prejudice a plaintiff who has no case. [Traner v. Sphalerite Mining Co., 243 Mo. 359, 370(a), 374, 148 S.W. 70, 72(a), 74, Ann. Cas. 1913C, 949, 952(a), 953; Shroder v. Barron-D. M. Co. (Mo.), 111 S.W.2d 66, 67[1].]

The accident occurred on Federal Highway No. 61 in the city of Hannibal, Missouri, on what is known as McMasters Avenue, about 8:55 P. M., april 23, 1936. McMasters Avenue is a three-lane concrete highway, extending north and south, with a gravel shoulder approximately three feet wide on the west side of the highway, having State Highway Commission's signs at what is known as the "Ritz" corner directing motorists to "keep in the outside lane except when passing" and pedestrians to "walk on the left side of pavement," and with a sidewalk extending south on the east side of the highway.

Defendants' motor equipment was a Chevrolet tractor and Keystone trailer, adapted to the transportation of live stock, and was being operated by Fred Prebe in a southerly direction.

Mr. Lappin, a man 51 years of age, earlier in the evening had been to the home of Clarence Houser, who lived two miles south of the junction of Highway No. 61 and what is known as the Clear Creek road, a farm-to-market road, passing the Houser home. He left the Houser home at 8:30 P. M. or a little later, walking toward Hannibal.

Proceeding south from the junction of the Clear Creek road and Highway No. 61 it is about a block to the Ritz, described as a night club, and a half mile farther south to the scene of the accident. The highway, for vehicles proceeding toward Hannibal, has a curve to the right as it approaches the Ritz and is straight from the Ritz to the scene of the accident.

Plaintiff's theory of the case, as disclosed by her petition, is that Mr. Lappin was walking south along the west shoulder of said highway and that Fred Prebe so negligently operated the tractor-trailer as to permit a part thereof to project beyond the pavement and over onto said shoulder and strike and injure Mr. Lappin, from which injuries Mr. Lappin died April 27, 1936.

Plaintiff relies upon witness Verl L. Darnell to make a case. Defendants' witnesses do not aid plaintiff's case. Mr. Darnell caught up with the Prebe tractor-trailer several miles out of Hannibal on Highway 61 but made no attempt to pass. He testified the speed of the truck never exceeded thirty miles an hour; that it slowed down around the curve, and was traveling about twenty miles an hour at the scene of the accident. The street lights, spaced at distances of two hundred to three hundred feet, were burning, as were the lights on the Prebe tractor. He saw no one on the highway, or on the side or top of the trailer, or attempting to board the trailer at any time, or fall or jump off the trailer. He was watching the road as he came around the Ritz corner. "I was not studying this truck to see if somebody was getting on it." He was not looking at the top; could not see what was on top of the trailer. His attention was first attracted by a flash of light about three or four feet above the ground, and two feet west of the pavement, as if someone had thrown a cigarette or cigar away; and then noticed an object on the highway, the heighth of which he placed at three feet, slump on the ground at the edge of the west shoulder of the highway. "I couldn't say where the object came from that I saw." He placed the west rear dual wheels at that moment eighteen to twenty-four inches from the edge of the pavement, and his car from one hundred to one hundred fifty feet back of the trailer. Immediately after the accident he, as did Prebe, stopped and returned to the scene. He testified that Mr. Lappin's body was on the shoulder, his head six inches west of the pavement; that Mr. Lappin's left shoe was off and there was blood on his left foot.

The injuries received by Mr. Lappin were a very bad chest injury on the right side; a bad cut on his left foot -- multiple lacerations; and a few small scratches and abrasions about the head and face. The X-rays revealed multiple fractures of the right ribs; skull: negative for fracture; cervical spine: negative for fracture. He never regained consciousness after the accident.

Uncontradicted testimony established that the Chevrolet tractor was five feet nine inches wide at its widest point and its headlights were "okay;" that there was a space of about eighteen or twenty-four inches between the cab and the trailer; that the trailer body was nineteen feet long, seven feet ten inches wide and six feet four inches high, extending ten feet four inches above the ground and approximately three feet above the cab of the truck. It was constructed of slats -- boards -- about four inches wide, with a space between the boards of two to four inches, the tops being secured by a chain. It had no roof. The trailer protruded four inches beyond the dual wheels. Its clearance lights included lights at the top to the rear of the cab. The corners of the trailer were of sheet metal and rounded. The front part of the trailer had a double deck. The top deck was loaded with hogs and calves, and a steer, and possibly a few hogs, were on the lower deck. After the accident the only mark on the tractor or the trailer was a dent in the sheet metal of the trailer at the right front corner, approximately five feet six or seven inches above the ground.

The following is a narrative of some facts...