Latham v. Harvey
| Citation | 218 S.W. 401,203 Mo.App. 363 |
| Parties | ROBERT LATHAM, Respondent, v. WILLIAM J. HARVEY, Appellant |
| Decision Date | 03 February 1920 |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Bryan Williams & Cave, for appellant.
(1) The trial court erred in not sustaining appellant's demurrers to the evidence, because there was no evidence that appellant was negligent. 29 Cyc. 419-20; 29 Cyc. 621; Battles v Railways, 178 Mo.App. 596, 614, 615; Nevinger v Haun, 197 Mo.App. 416, 427-28; Winter v. Van Blarcom, 258 Mo. 418, 423-24. (2) The trial court erred in not sustaining appellant's demurrers to the evidence, because the plaintiff was guilty of contributory negligence as a matter of law. Winter v. Van Blarcom, 258 Mo. 418, 424; Conrad v. Green, 94 A. 390; Harder v. Mathews, 67 Wash. 487. (3) The instruction on unavoidable accident requested by appellant should have been given by the trial court in view of the evidence in this case. Webb v. Baldwin, 165 Mo.App. 240, 251-52. (4) Appellant did not have a fair and impartial trial before a fair and impartial judge. (a) It was prejudicial error for counsel for respondent, on examination of the jury and on argument, to attempt to show that a casualty insurance company was interested in the case, for the purpose of creating prejudice in the minds of the jury. Berning v. Medart, 56 Mo.App. 443, 449; Gore v. Brockman, 138 Mo.App. 231, 234-46, Trent v. Printing Co., 141 Mo.App. 437, 448-52; Hollenbeck v. McCord, 152 Mo.App. 248, 254-56; Self v. White, 169 Mo. 709, 714-15; Boten v. Sheffield Ice Co., 180 Mo.App. 96. 109-112; Burrows v. Likes, 180 Mo.App. 447, 455-57. (b) It was prejudicial error for counsel for respondent, after being reproved by the court, to repeat his charges of improper conduct in the defense of the suit. Evans v. Towen of Trenton, 112 Mo. 390, 401-02. (c) It was prejudicial error for the trial court not to discharge the jury when counsel for respondent made an offer of proof of incompetent and prejudicial evidence in the hearing of the jury, after request made to have the offer made out of the presence of the jury. Marshall v. Taylor, 168 Mo.App. 240, 247-49; Haynes v. Town of Trenton, 108 Mo. 123, 133; Brown v. Railroad, 66 Mo. 588, 599; Ritter v. Bank, 87 Mo. 574, 576-77; Evans v. Town of Trenton, 112 Mo. 390, 404-05; Norris v. Whyte, 158 Mo. 20, 31-32; Smith v. Telegraph Co., 55 Mo.App. 626, 632-34; Massengale v. Rice, 94 Mo.App. 430, 433-36; Brinton v. Thomas, 138 Mo.App. 64, 75-76; Burr v. Railroad, 138 Mo.App. 471, 477-78; Barnes v. St. Joseph, 139 Mo.App. 545, 549-51; Torreyson v. United Railways, 144 Mo.App. 626, 637-39. (d) It was error to permit respondent to add to the credibility of his witness, Sadie Hyke, by showing that she had no interest in the case. 40 Cyc. 2555; State v. Thomas, 78 Mo. 327; State v. Brown, 247 Mo. 715, 725-27; Chenoweth v. Sutherland, 141 Mo.App. 272, 277. (e) It was error not to strike out the statement of respondent's witness, Sadie Hyke, that the automobile was going at a fast rate of speed. Priebe v. Crandall, 187 S.W. 605, 606. (f) It was prejudicial error to permit respondent to ask this witness, Sadie Hyke, general questions after specific questions were requested by appellant. 40 Cyc. 2421-22; Orr v. Jason, 1 Ill.App. 439; Slaughter v. Health, 127 Ga. 747; Scott v. State, 73 So. 212. (g) It was prejudicial error for the trial court to make a groundless accusation that counsel for appellant was volunteering information to appellant when testifying as respondent's witness, and to adopt a hostile attitude towards counsel for appellant. 38 Cyc. 1322-23; Shepard v. Brewer, 248 Mo. 133-148-49; Jackmann v. Railway (Mo. App.), 187 S.W. 786, 788. (5) (a) Respondent's instruction No. 8 is erroneous because it is contrary to the allegations of the petition. Hufft v. Railroad, 222 Mo. 286, 302-03; Scrivener v. Railway, 260 Mo. 421, 428-31; State ex rel. v. Ellison, 270 Mo. 645, 651-56, 655-56; Silverthorne v. Lumber Co., 190 Mo.App. 716, 726-27; Young v. Dunlap, 195 Mo.App. 119, 122-23; McGinness v. Railway, 195 Mo.App. 390, 396-97. (b) Respondent's instruction No. 8 is erroneous because it directs a verdict and fails to state all of the essentials to plaintiffs recovery; it ignores defenses, assumes that appellant was negligent and that such negligence was the proximate cause of respondent's injury, and does not require the jury to find that appellant was negligent or that his negligence was the proximate cause of the injury. (a) An instruction directing a verdict should include all elements necessary to recovery. Percell v. Railway, 126 Mo.App. 43, 53; Rissmiller v. Railway, 187 S.W. 573, 574. (b) Instructions should not assume negligence or any other controverted fact. Glaser v. Rothschild, 221 Mo. 180, 203-05; Wease v. Tool Co. , 187 Mo.App. 716, 719; Flannigan v. Nash, 190 Mo.App. 578, 582-83; Priebe v. Crandall, 187 S.W. 605, 607-08; Hall v. Coal v. Coke Co., 260 Mo. 351, 362-63, 367-69. (c) This error could not be cured by other instructions. Pierson v. Lafftery, 197 Mo.App. 123, 131; Walker v. White, 192 Mo.App. 13, 18-20; Rissmiller v. Railway, 187 S.W. 573; Dale v. Smith, 185 S.W. 1183; Noyes v. Railroad, 186 S.W. 1027; Patterson v. Evans, 254 Mo. 293, 303; Hall v. Coal & Coke Co., 260 Mo. 351, 369.
Edw. W. Foristel and Eagleton & Habenicht for respondent.
(1) Appellant's demurrers at the close of the plaintiff's case and at the close of all the evidence were properly overruled. Frankel v. Hudson, 271 Mo. 495; Brooks v. Harris, 207 S.W. 293; Meenach v. Crawford, 187 S.W. 879; Sullivan v. Chauvenet, 186 S.W. 1090. (2) The instruction on unavoidable accident requested by appellant was properly refused. Simon v. Metropolitan Railway, 178 S.W. 449; Nehring v. Monroe Stationary Co., 191 S.W. 1054. (3) No error was committed during the voir dire examination, and the questions asked were proper in order to ascertain the qualifications of the jurors. Boten v. Ice Company, 180 Mo.App. 96; Smith v. Scudiero, 204 S.W. 565; Yates v. House Wrecking Co., 195 S.W. 549; Kroell v. Lutz, 210 S.W. 926; Kinney v. Street Railways Company, 261 Mo. 97. (4) The argument of respondent's counsel to the jury was proper and no reviewable error was committed as defendant saved no exceptions to any part of the argument, or failure of the court to sufficiently reprove respondent's Bright v. Sammons, 214 S.W. 425 l. c. 429; Torreyson v. Railway Company, 246 Mo. 696; Tawney v. Railway Co., 262 Mo. 602; State v. Harrington, 263 Mo. 642; Tuck v. Springfield Traction Co., 140 Mo.App. 335. (5) No error was committed in making an offer of proof within the hearing of the jury, and no proper exceptions were saved. An adverse party to a civil action may be cross-examined about any material matter or admissio made against interest at any time. R. S. 1909, sec. 6356. Bush v. Block, 193 Mo.App. 704; Luzzadder v. McCall 198 S.W. 1144. (6) No error was committed in asking witness Sadie P. Hyke whether or not she had any interest in the case. Her answer was stricken from the record and the question was abandoned and no proper exeception saved. Threadgill v. United Railways Co., 214 S.W. 161. (7) No error was committed in permitting respondent to ask witness Sadie P. Hyke general questions, and the witness' answer including a statement that the machine was going fast was not in response to any question asked by the respondent, and this same evidence was later introduced without any objection or exception on the part of the appellant. (8) No error was committed by the court in instructing counsel for appellant not to vounteer any information to witness, and the record clearly shows that no groundless accusation was made. (9) Instruction Number 8 given at the request of the respondent was proper under the pleadings and the evidence, and it included all necessary elements. (a) There was no variance between the pleadings and the instruction. Ottofy v. Mississippi Valley Trust Co., 196 S.W. 428. (b) All the instructions must be read and considered together; Rissmiller v. Railways Co., 187 S.W. 573. (c) The instructions were not contradictory or conflicting and the error, if any, was harmless. Malone v. St. L. & S. F., 213 S.W. 864; Blair v. Union Electric L. & P. Co., 213 S.W. 976; Tracy v. Coppage, 213 S.W. 38; Rigg v. Railways Co., 212 S.W. 878; Gordner v. Screw Co., 210 S.W. 122. (10) Under all of the evidence the verdict was for the right party and should not be reversed for mere technical reasons, R. S. 1909, sec. 2082; Anderson v. Pryor, 209 S.W. 125.
This is an action to recover damages for personal injuries sustained by plaintiff by being struck by an automobile belonging to the defendant and driven by him. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff in the sum of $ 5000, from which the defendant prosecutes this appeal.
At the time of plaintiff's injury he was in the employ of the city of St. Louis as a street sweeper and engaged in this work on Delmar Avenue, a street extending east and west in the city of St. Louis, at a point a short distance east of Euclid Avenue, a street extending north and south, intersecting Delmar Avenue. He was struck and injured by defendant's automobile as it was being driven in an easterly direction along the south side of Delmar Avenue.
The petition alleges that on the day of plaintiff's injury to-wit, July 25, 1916, while plaintiff "was lawfully standing on the south side of Delmar Avenue at or near its intersection with Euclid Avenue," he was violently struck, knocked down and run over by defendant...
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