Messer v. Gentry

• Citation: 290 S.W. 1014,220 Mo.App. 1294
• Parties: ROBERT MESSER, BY NEXT FRIEND, APPELLANT, v. W. H. GENTRY, RESPONDENT. *
• Decision Date: 07 January 1927
• Court: Missouri Court of Appeals

290 S.W. 1014

220 Mo.App. 1294

ROBERT MESSER, BY NEXT FRIEND, APPELLANT, v. W. H. GENTRY, RESPONDENT. *

Court of Appeals of Missouri, Springfield

January 7, 1927

Appeal from the Circuit Court of Jasper County.--Hon. S.W. Bates Judge.

Judgment reversed and cause remanded.

Frank H. Lee and R. A. Pearson for appellant.

(1) Speed is not a question for experts only. A fourteen-year-old boy who has driven cars often, and ridden with others and observed the speedometer, is amply qualified to testify to the speed at which a car is being driven. Lorenzen v Railroad, 249 Mo. 187; Flach v. Ball, 240 S.W 469; Hartman v. Fleming, 264 S.W. 877; State v. Trimble, 250 S.W. 387; Moon v. Transit Co., 237 Mo. 431; Thornton v. Stewart, 240 S.W. 503; Chandla v. Transit Co., 213 Mo. 245; Epstein v. Railroad, 143 Mo.App. 155; 38 Cyc. 1330; Buckstaff v. Russel, 151 U.S. 637; Emerson v. Simpson, 217 S.W. 562. (2) An instruction purporting to cover the entire case must include all the issues raised by the plaintiff's case, and cannot single out certain facts and direct a verdict thereon while ignoring other facts material to the issue. O'Neil v. Kansas City Rys. Co., 239 S.W. 879; Farrar v. Railroad, 249 Mo. 222; Boyer v. Railway Co., 120 Mo.App. 175, pars. 1 and 2; Spindler v. Webb, 276 S.W. 387; Goodwin v. Eugas, 236 S.W. 53 (1 and 6). (3) An instruction must not select certain items of evidence and state that a certain conclusion does not follow as a matter of law, when in connection with other facts they are competent on the issue. Oleson v. Great N. Railroad, 71 N.W. ; West Chg. Railroad v. Petters, 63 N.E. 662; Walker v. Railroad Co. (Mo.), 178 S.W. 108; Orris v. Railroad, 214 S.E. 124, 279 Mo. 1; Barr v. City, 105 Mo. 557, 11; Walker v. St. Joseph, 231 S.W. 65.

Haywood Scott for respondent.

(1) There was no evidence that the speed at which the respondent's car was going (whatever it was), either before or at the time of the accident, had any causal connection with the appellant's accident or injury. There must be a causal connection, a showing of proximate cause. Even negligence creates no liability for an injury not shown to have been caused thereby. Shelton v. Rudd (Mo. App.), 242 S.W. 151, 153; Jackson v. Butler, 249 Mo. 366; Shunk v. Harvey et al. (Mo. Sup.), 223 S.W. 1066, 1069; McDonald v. Crider (Mo. App.), 272 S.W. 980. (2) Where a boy between four and five years old suddenly runs into the street in front of an automobile being driven at a moderate rate of speed and the driver sounds his horn and applies his brakes and the boy stops in the path of the automobile and the driver then starts to pass to the left of the boy who appears to be waiting for the automobile to pass him, but, as the car is passing him, starts running towards it and the driver then turns farther to the left and runs up on an embankment on the left side of the street in an effort to keep the boy from running into the automobile, but the boy runs into the rear bumper or the rear end of the right fender of the automobile and is thereby injured, there is no liability for the injury on the part of the driver and the court should have given the jury an instruction to that effect. Ruschenberg v. Southern Elec. Ry. Co., 161 Mo. 70; Maschek v. St. Louis R. Co., 71 Mo. 276; Hyde v. Hubinger (Conn.), 87 A. 790; Lovett v. Scott (Mass.), 122 N.E. 646; Jordan v. Sight Seeing Coach Co. (N. Y.), 113 N.Y.S. 786; Stahl v. Sollenberger (Pa.), 92 A. 720; Marines v. Motor Del. Co. (N. Y.), 131 N.Y.S. 357; Paul v. Clark (N. Y.), 145 N.Y.S. 985. (3) Appellant made no offer to show by the fourteen-year-old boy that the speed at which the respondent's car was traveling was in excess of twenty miles per hour or what it was. There is nothing in the record as to what the opinion of the boy was as to the speed of the car and therefore no one can say that the exclusion of his testimony on that question by the trial court was harmful or prejudicial to the appellant. When no offer is made of the facts sought to be elicited by a question, the mere exclusion of an unspoken answer thereto constitutes no error. If this court should reverse the judgment, it would have no way of knowing but what the Smith boy would answer favorably to the defendant. St. Louis v. Babcock, 156 Mo. 152; Ruschenberg v. Railroad, 161 Mo. 81; Parker v. Holland, 115 Mo.App. 685; Caskey v. City of LaBelle, 101 Mo.App. 598; State v. Goddard, 162 Mo. 228. Where evidence is merely cumulative, its exclusion is not reversible error. Brill v. Eddy, 115 Mo. 606; Roe v. Kansas City, 100 Mo. 190; Gidionsen v. Railroad, 129 Mo. 399; Caskey v. City, 101 Mo.App. 597; Robinson v. St. Joseph, 97 Mo.App. 510; Hicks v. Railroad, 68 Mo. 335; Leavitt v. Miller, 64 Mo.App. 147; Bank v. Longfellow, 96 Mo.App. 394. (4) Where the physical facts positively contradict the oral testimony, the former controls and the jury is not at liberty to consider the oral evidence. Am. Car Company v. Kinderman (Mo.), 216 F. 499; M. K. & T. Co. v. Collier (Mo.), 157 F. 347; Certiorari denied, 52 L.Ed. (U.S.) 920.

COX, P. J. Bradley and Bailey, JJ., concur.

OPINION

COX, P. J.

Action for damages for personal injuries alleged to have been received in an automobile accident. Trial by jury and verdict and judgment for defendant. Plaintiff appealed.

The petition alleged that the plaintiff, Robert Messer, is a child about four years of age and that he was struck and seriously injured by an automobile driven by defendant while on a certain street in the city of Joplin. The negligence alleged is a violation of the ordinances of the city of Joplin and failure to keep a look-out for persons on the street or sound a horn or give any other signal; failure to stop and too great speed.

The answer contained a general denial, which is followed by a long description of the place where the accident occurred and its surroundings and the location of buildings on each side of the street and a full description in detail of what defendant did to avoid striking the child and winds up with the charge that defendant did not strike the child but that the child ran into the rear part of the automobile and received its injury in that way.

We do not deem it necessary to set out the evidence in detail. On the whole it tends to show that defendant was driving north on Schifferdecker avenue in Joplin and the plaintiff was attempting to cross the street in front of the automobile. The defendant turned his car to the left in an effort to get around the child but the rear part of his car struck the child and injured him. A city ordinance forbade a speed of more than twelve miles per hour in the congested district or twenty miles per hour in other parts of the city and made it the duty of drivers of automobiles to exercise all proper care not to injure pedestrians. Other facts may be alluded to later.

The errors assigned are that the court erred in excluding testimony offered by plaintiff and in giving instructions on part of defendant. The alleged error in excluding testimony offered by plaintiff rests on the following facts: A witness, Benjamin Smith, a boy fourteen years of age, saw the accident and when testifying on behalf of plaintiff, he was asked to state his judgment as to the speed at which the car of defendant was travelling at the time of the accident. An objection was made on the ground that the witness had not shown himself competent or qualified to answer the question. The witness was then examined as to his knowledge of automobiles and his qualifications to judge of their speed. From this examination it was shown that he had been driving cars about two years, had ridden in cars for five years and had observed the speedometers and checked the speed of the cars and noticed the speed at which they were moving. Notwithstanding all this the court held that he had not shown himself qualified to judge of the speed of an automobile and sustained the objection and the witness was not permitted to testify on that question. That was clearly error from any point of view. If no one but an expert were permitted to give an opinion on the question of the speed of an automobile from seeing it move we should be inclined to say that this witness was qualified as an expert, but a witness is not required to be an expert to be qualified to testify on that question. Our Supreme Court in discussing this question in State v. Watson, 216 Mo. 420, 433, 115 S.W. 1011, said: 'The rate of speed at which an automobile is running is not a matter exclusively for the testimony of experts. . . . The only reasonable settlement of that question is to hold that witnesses who at least know what an automobile is and have seen them operated might give their opinions as to the rate of speed. As to the weight to which such opinions are entitled, that is a matter entirely for the jury. [See, also, Kleckamp v. Lautenschlaeger, 305 Mo. 528, 538, 266 S.W. 470; Flach v. Ball, 209 Mo.App. 389, 405, 240 S.W. 465; Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449.]

When the objection to the competency of this witness to testify on the question of the speed of the automobile was sustained exception was saved by appellant but no statement made to the court as to what the expected answer of the witness would be. Respondent contends that since no offer of proof was made the action of the court in holding the witness incompetent to testify cannot be reviewed by this court. The general rule in this State is, that when an objection to a question propounded to a witness is sustained on the ground that it is irrelevant or immaterial, an offer to prove certain facts by the witness must be made and incorporated in the record before the action of the trial court in refusing to permit the witness to answer can be reviewed in ...