Messer v. Gentry

• Decision Date: 07 January 1927
• Docket Number: No. 4117.,4117.
• Citation: 290 S.W. 1014
• Parties: MESSER v. GENTRY.
• Court: Missouri Court of Appeals

290 S.W. 1014

MESSER v. GENTRY.

No. 4117.

Springfield Court of Appeals. Missouri.

January 7, 1927.

Rehearing Denied February 9, 1927.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by Robert Messer by Alma Whitcomb, next friend, against W. H. Gentry. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Frank H. Lee and R. A. Pearson, both of Joplin, for appellant.

Haywood Scott, of Joplin, for respondent.

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 4 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 lookout 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 12 miles per hour in the congested district, or 20 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 14 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 traveling 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 2 years, had ridden in cars for 5 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, 1114, 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 the appellate court. This rule has always obtained in this state. Bank of Slater v. Union Station Bank, 283 Mo. 308, 314, 222 S. W. 993. Dozens of other cases to the same effect could be cited.

Our attention has been called to the rule in the federal courts as set forth in Buckstaff v. Russell & Co., 151 U. S. 626, where, at page 637, 14 S. Ct. 448, 452 (38 L. Ed. 292) the United States Supreme Court, in discussing the same question, stated the rule to be as follows:

"If the question is in proper form and clearly admits of an answer relevant to the issues and favorable to the party on whose side the witness is called, it will be error to exclude it. Of course, the court, in its discretion, or on motion, may require the party, in whose behalf the question is put, to state the facts proposed to be proved by the answer. But if that be not done, the rejection of the answer will be deemed error or not, according as the question, upon its face, if proper in form, may or may not clearly admit of an answer favorable to the party in whose behalf it is propounded."

That rule has much to commend it. Its chief merit, as we view it, lies in the fact that in fairness to the attorney asking the question the court should indulge the presumption that he had properly prepared his case for trial, and knew what answer to expect from the witness, and knew that, if permitted to answer, the witness would state some material fact favorable to his side of the case, and he should not be required to state what he expected to prove by the witness, unless asked to do so by the court or opposing counsel. Our own courts, however, have followed a different rule and have...