McAfee v. Felts

• Decision Date: 24 November 1961
• Docket Number: No. 16776.,16776.
• Citation: 295 F.2d 716
• Parties: Charles McAFEE, Appellant, v. Lora FELTS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.2d 716 (1961)

Charles McAFEE, Appellant, v. Lora FELTS, Appellee.

No. 16776.

United States Court of Appeals Eighth Circuit.

November 24, 1961.

Ivan E. Moody, Kansas City, Mo., for appellant. E. E. Thompson, Popham, Thompson, Popham, Trusty & Conway, Kansas City, Mo., on the brief.

Galen Knowlton, Kansas City, Mo., for appellee. Michael J. Drape, Knowlton & Drape, Kansas City, Mo., on the brief.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

Lora Felts, hereinafter referred to as the plaintiff, brought this suit for money damages against Charles McAfee. Suit was originally commenced in the Circuit Court of Jackson County, Missouri. It was removed to the United States District Court for the Western District of Missouri, jurisdictional requirements as to diversity of citizenship and amount being fully satisfied. The case was tried to a jury and resulted in a verdict in plaintiff's favor in the sum of $4,400. Defendant appeals.

In considering the appeal this court must view the testimony in a light most favorable to sustaining the jury verdict and give to the plaintiff, who prevailed, the benefit of all reasonable inferences which may be drawn therefrom.

In Kansas City, Missouri, on June 17, 1959, sometime between the hours of 5:30 and 6:00 o'clock p. m. the plaintiff was walking toward her home, carrying a small bag of groceries, when she was struck by an automobile driven by the defendant. Plaintiff had been walking in an easterly direction across Bell Street in an unmarked crosswalk from the west to the east side of Bell on the north side of 39th Street. Bell Street is 28 feet in width from curb to curb. Defendant had been driving in a westerly direction on 39th Street. He intended making a right-hand turn to go north on Bell Street. He gave no signal of his intention to turn, either by putting on signal lights or with his hand. He was blinded by the sun. The front of his car struck the plaintiff at a point determined by a policeman who investigated the accident to be 20 feet east of the west curbline of Bell Street and 10 feet north of the north curbline of 39th Street and by the plaintiff herself as being about two-thirds of the way across Bell Street. Defendant did not see Mrs. Felts, the plaintiff, at any time before the impact and did not apply his brakes until he heard her scream. He did not know the direction from which she came. He estimated he went about five feet after hearing plaintiff's scream.

There is no contention, nor could there be, that the defendant was not negligent or that his negligence was not a proximate cause of the accident. The circumstances would have justified a court in so directing as a matter of law. Instead, defendant argues that the evidence, even when viewed in a light most favorable to the plaintiff, establishes that she was guilty of contributory negligence as a matter of law and that that should bar her recovery. Defendant believes that the trial court should have directed a verdict in his behalf in accordance with his motions.

Defendant divides his argument into two sections:

"A. Plaintiff is bound by unexplained admissions made by her.

"B. Plaintiff-appellee was contributorily negligent as a matter of law and not entitled to verdict in her favor."

First, with reference to defendant's claim that the plaintiff is "bound by unexplained admissions made by her", he points out that on direct examination the plaintiff testified to seeing an automobile about 40 feet away traveling west on 39th Street, approaching the intersection of Bell Street. He points out that on cross examination the plaintiff conceded that the truth of the matter was that the first time she saw the defendant's vehicle was when it was a foot or a foot and a half away from her and that at that time she was directly in front of the automobile; that her eyesight was good; that she was entirely familiar with the intersection, having lived on the northeast corner thereof and having crossed it many times in both directions; that the sun was shining; that it was a clear day and the streets were dry; and that there was nothing to interfere with her vision looking east on 39th Street. From this defendant argues:

"* * * From such admissions it is inescapable that plaintiff did not see defendant\'s automobile while she walked at least two-thirds of the way across Bell Street, and as the automobile was turning, until she had actually passed to a point where she was in front of it."

On reading the record, it is clear that there is some inconsistency between the testimony given by Mrs. Felts at the trial and that given in her pre-trial deposition. At the trial she stated:

"* * * I walked across in the crosswalk and I got about two-thirds across, I seen a car approaching about forty feet away, but it didn\'t give no signal it was going to turn, and when I looked up, the car was right on me. I later learned this car was driven by Mr. McAfee and in my judgment it was going 10 to 15 miles per hour. I would say it was the radiator or the lights of the car that struck me. * * *"

In her cross examination, Mrs. Felts stated she could not tell if the car she had seen a distance of 40 feet away was defendant's. In her deposition, Mrs. Felts stated she did not "see any vehicle at all" until defendant's car was from one to one and a half feet from her.

But from this, however, it cannot be reasonably contended, as defendant does here, that the inconsistent statements amount to an "unexplained admission" which would defeat plaintiff's right to a verdict. Even viewing the testimony in a light most favorable to defendant, the most that could be concluded from Mrs. Felts' statements was that she had not seen defendant's car until it was almost upon her. Assuming this, what...