McCarthy v. Wulff

• Court: Missouri Supreme Court
• Writing for the Court: DOUGLAS W. GREENE
• Citation: McCarthy v. Wulff, 452 S.W.2d 164 (Mo. 1970)
• Decision Date: 13 April 1970
• Docket Number: No. 54474,No. 1,54474,1
• Parties: Robert McCARTHY and Mary Jane McCarthy, Appellants, v. Arlou WULFF and Ervin Wulff, Respondents

Page 164

452 S.W.2d 164

Robert McCARTHY and Mary Jane McCarthy, Appellants, v. Arlou WULFF and Ervin Wulff, Respondents.

No. 54474.

Supreme Court of Missouri, Division No. 1.

April 13, 1970.

George R. Gerhard, St. Louis, for appellants.

James A. Cole, L. B. Eckelkamp, Jr., Jenny, Cole & Eckelkamp, Union, for respondents.

DOUGLAS W. GREENE, Special Judge.

This case is a wrongful death action in which plaintiffs seek to recover damages for the death of their eleven-year-old son who was struck and killed by an automobile. At a jury trial, the trial court directed a verdict for defendants at the close of the plaintiffs' evidence on the grounds that plaintiffs had failed to sustain the necessary elements of their petition. Plaintiffs appeal.

The evidence, viewed in a light most favorable to plaintiffs and giving them the benefit of all reasonable inferences arising from the evidence, Brubaker v. Moore, Mo.Sup., 432 S.W.2d 216, was as follows.

Plaintiffs' son, John McCarthy, was eleven years old at the time of the accident, which occurred on October 29, 1966, at about 8:30 A.M. in St. Charles County, Missouri. John was struck and killed by an automobile traveling east on Highway 40 at or near its intersection with Highway 94. Highway 40 was a dual lane highway with two eastbound and two westbound lanes that were separated by a grass and dirt median. The width of Highway 40 at its intersection with Highway 94 was 21 feet 8 inches. The weather was clear and dry. The intersection of the two highways was clearly visible from a point on Highway 40 that was 1,018 feet west of the intersection. (Plaintiffs' exhibits 3 and 3A.)

The surface of Highway 40 was concrete, and the two eastbound lanes were divided by an alternating black and white line.

Dagsted's General Store and Johnson's Service Station were located north of westbound Highway 40 and on the east side of Highway 94.

Bob O'Connor, a friend of the McCarthy boy, was visiting in the McCarthy home. He was eleven years old at the time of the accident and thirteen years old at the time of trial. He testified that he and John got up early and decided to go to Dagsted's to buy some candy. They borrowed two bicycles from a neighbor for the trip. The McCarthy home was south of eastbound Highway 40. The boys crossed Highway 40, bought the candy at Dagsted's and some soda pop at the service station, and started back south on Highway 94. They crossed the westbound lanes of Highway 40, and Bob stopped on the dirt portion of the median to get some candy out of his pocket. He was within five feet of the north edge of Highway 40 at that time.

Bob O'Connor testified that John continued south on Highway 94 but stopped his bicycle about the center of eastbound Highway 40. John's bicycle was astraddle the center line. While Bob was getting the candy out of his pocket, he heard the squealing of tires, looked up and saw a new navy blue, shiny car that was in the inside or north lane of Highway 40 swerve to the left or north behind the rear end of John's bicycle. He said that this car did not strike John. He then said, 'after that car I didn't--after he passed me I didn't see him at all, and then the car in the right lane hit him and went down the highway a little bit and then I could see him, and John came off the rear of that car landed in the highway.' He identified the right lane as the south lane, or lane next to the shoulder. He was not permitted to identify pictures of defendants' car as looking like the one that struck his friend. He said the car that struck John was a light colored car that could have been blue or green, that he wasn't looking closely at the car, but was watching John. On cross-examination, he said that the car that hit John could have been a 1962 blue Plymouth, Dodge, or Valiant, that he didn't actually see the car strike John, but did see John fly through the air and come down off the left rear fender of the car in the south or shoulder lane. Mr. Robert McCarthy, John's father, on cross-examination said that Bob O'Connor had told a police officer, Sergeant Schmitt, that there were four people in the car that hit John.

Afton Ware, a chemist for the State Highway Patrol Laboratory, examined John's clothing after the accident. He found a fragment of glass in the right sleeve of the sweat shirt John wore. There were no paint smears on the clothing. There was an 'ironed' defect, as could be made by a heavy object, around a torn place on the pants.

Defendants' attorney, Mr. Cole, made an opening statement. Opening statements usually are not considered as judicial admissions unless they are clear, unequivocal admissions of fact, in which case they are binding on the party in whose interest they are made and may be considered by the jury as admitted facts. Bayer v. American Mutual Casualty Co., Mo.Sup., 359 S.W.2d 748.

In his opening statement defendants' attorney stated that defendants owned a 1962 grayish-green Chevrolet, and that the car was equipped with hydraulic brakes and steering. He stated that defendant Arlou Wulff was taking her husband, defendant Ervin Wulff, to the doctor in St. Louis. Four people were in the car, Mr. and Mrs. Wulff and their two daughters. He stated that Mrs. Wulff was driving east on eastbound Highway 40 in the south or shoulder lane at the time and place of the accident and that the only other automobile on the highway at that location and time was in the north or passing lane.

All of these statements were clear, unequivocal assertions of facts that could be considered by the jury along with all other facts and circumstances in evidence in determining the issues.

In addition, portions of the deposition of the defendant Arlou Wulff were read into evidence as admissions against her interest as a part of plaintiffs' case. She said that the car she was driving was a 1962 green Chevrolet Biscayne, and that she was driving through St. Charles County towards St. Louis at a speed at 50--55 miles per hour. She further stated that when she first saw the boy on the bicycle he was on the north-fourth of the left-hand lane and was on the concrete slab; that he was looking east towards St. Louis and never did look back towards her car, and that she saw the boy on the bicycle as soon as she could see that part of the road.

Plaintiffs' exhibits 1 through 21 were offered and received in evidence. Plaintiffs' exhibits 8 through 12 were pictures of defendants' car, taken pursuant to a court order on December 31, 1967. The pictures show a dent in the chrome grill, a pushed-in depression in the flat lower section of the front bumper where the license plate would normally attach, a broken left front headlight, and a broken left front windshield.

Plaintiffs contend, on appeal, that the evidence as stated above made a submissible case on the issue of humanitarian negligence and that the trial court erred in directing a verdict for defendants at the close...