Messer v. Gentry, No. 4117.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCox
Citation290 S.W. 1014
Docket NumberNo. 4117.
Decision Date07 January 1927
PartiesMESSER v. GENTRY.
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.

290 S.W. 1015

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...

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14 practice notes
  • Perkins v. Kansas City Southern Ry. Co., No. 29380.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1932
    ...Schools et al., 39 Mo. 59, 67; Chappell v. Allen et al., 38 Mo. 213, 222; Clark v. Hammerle, 27 Mo. 55, 70; Messer v. Gentry (Mo. App.), 290 S.W. 1014, 1016; Stepham v. Railroad Co. (Mo. App.), 199 S.W. 273, 274; Boyce v. Ry. Co., 120 Mo. App. 168, 175, 96 S.W. For the reasons above stated ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...(2d) 11, l.c. 14-15; State v. Poor, 286 Mo. 644, l.c. 658, 228 S.W. 810, l.c. 814-815; Messer v. Gentry, 220 Mo. App. 1294, l.c. 1301, 290 S.W. 1014, l.c. 1016-1017; Rock v. Keller, 312 Mo. 458, l.c. 477, 489, 278 S.W. 759, l.c. 764, 768; Gardner v. St. Louis Union Trust Co., 85 S.W. (2d) 8......
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...v. Mo. Pac., 294 S.W. 80; Finley v. Continental Ins. Co., 299 S.W. 1107; Johnson v. A.T. & S.F. Ry., 290 S.W. 462; Menser v. Gentry, 290 S.W. 1014; Egan v. Palmer, 293 S.W. 460. (3) The court erred in giving defendant Schulte's Instruction 6, because it was too general, a mere conclusion, a......
  • King v. K.C. Pub. Serv. Co., No. 18242.
    • United States
    • Court of Appeal of Missouri (US)
    • January 6, 1936
    ...l.c. 751, 753; Costello v. Kansas City, 280 Mo. 576, l.c. 587, 219 S.W. 386, l.c. 389; Messer v. Gentry, 220 Mo. App. 1294, l.c. 1301, 290 S.W. 1014, l.c. 1016-1017; Rock v. Keller, 312 Mo. 458, l.c. 477, 489, 278 S.W. 759, l.c. 764, 768; Phares v. Century Electric Co. (Mo.), 82 S.W. (2d) 9......
  • Request a trial to view additional results
14 cases
  • Perkins v. Kansas City Southern Ry. Co., No. 29380.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1932
    ...Schools et al., 39 Mo. 59, 67; Chappell v. Allen et al., 38 Mo. 213, 222; Clark v. Hammerle, 27 Mo. 55, 70; Messer v. Gentry (Mo. App.), 290 S.W. 1014, 1016; Stepham v. Railroad Co. (Mo. App.), 199 S.W. 273, 274; Boyce v. Ry. Co., 120 Mo. App. 168, 175, 96 S.W. For the reasons above stated ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...(2d) 11, l.c. 14-15; State v. Poor, 286 Mo. 644, l.c. 658, 228 S.W. 810, l.c. 814-815; Messer v. Gentry, 220 Mo. App. 1294, l.c. 1301, 290 S.W. 1014, l.c. 1016-1017; Rock v. Keller, 312 Mo. 458, l.c. 477, 489, 278 S.W. 759, l.c. 764, 768; Gardner v. St. Louis Union Trust Co., 85 S.W. (2d) 8......
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...v. Mo. Pac., 294 S.W. 80; Finley v. Continental Ins. Co., 299 S.W. 1107; Johnson v. A.T. & S.F. Ry., 290 S.W. 462; Menser v. Gentry, 290 S.W. 1014; Egan v. Palmer, 293 S.W. 460. (3) The court erred in giving defendant Schulte's Instruction 6, because it was too general, a mere conclusion, a......
  • King v. K.C. Pub. Serv. Co., No. 18242.
    • United States
    • Court of Appeal of Missouri (US)
    • January 6, 1936
    ...l.c. 751, 753; Costello v. Kansas City, 280 Mo. 576, l.c. 587, 219 S.W. 386, l.c. 389; Messer v. Gentry, 220 Mo. App. 1294, l.c. 1301, 290 S.W. 1014, l.c. 1016-1017; Rock v. Keller, 312 Mo. 458, l.c. 477, 489, 278 S.W. 759, l.c. 764, 768; Phares v. Century Electric Co. (Mo.), 82 S.W. (2d) 9......
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