Neavill v. Klemp, 53057

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Neavill v. Klemp, 427 S.W.2d 446 (Mo. 1968)
• Decision Date: 13 May 1968
• Docket Number: No. 53057,No. 1,53057,1
• Parties: James Lee NEAVILL, Jr., by James Lee Neavill, Sr., his Next Friend, Appellant, v. Myrtie H. KLEMP, Respondent

Page 446

427 S.W.2d 446

James Lee NEAVILL, Jr., by James Lee Neavill, Sr., his Next Friend, Appellant, v. Myrtie H. KLEMP, Respondent.

No. 53057.

Supreme Court of Missouri, Division No. 1.

May 13, 1968.

Robert A. McIlrath, Flat River, for appellant.

Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondent.

HOUSER, Commissioner.

Action for $25,000 damages for personal injuries. A trial jury returned a verdict for defendant. Plaintiff has appealed.

Respondent's motion to dismiss the appeal for violation of Civil Rule 83.05 in ten respects and for breach of Civil Rule 79.03, V.A.M.R., fully considered, is overruled.

Plaintiff, 9 years of age, was struck by defendant's nothbound automobile while crossing North Washington Street in Farmington at a school crosswalk, at a time when a crossing guard was on duty.

I.

There was no error in permitting Police Officer Ellis, who arrived at the scene about 5 minutes after the accident, to testify that he made an examination for skid marks and found skid marks in the right-hand lane going north, nine and a half steps long, and that the marks stopped 3 steps from the south edge of the cross-walk. This testimony was not 'clearly hearsay,' as urged. It was based upon personal observation, not what someone else told him. The fact that this is a heavily traveled intersection does not make the testimony inadmissible. 'The testimony of a witness about * * * skid marks * * * who, within a reasonable time thereafter, visited and examined the scene of an accident is ordinarily admissible. The length of time intervening between the accident and the examination and the physical conditions surrounding the place of the accident which would affect such marks, such as the amount of travel on the highway, * * * are elements which ordinarily affect the weight, rather than the materiality of such testimony. Troxell v. De Shon (Mo.App.) 279 S.W. 438, 42 C.J., § 1024.' Clark v. Reising, 341 Mo. 282, 107 S.W.2d 33, 35 (3, 4). And see McCrary v. Ogden, Mo.Sup., 267 S.W.2d 670, 675(11).

II.

There was no error in permitting Officer Ellis to read into the record portions of a statement taken from the crossing guard Crouch outside the presence of plaintiff. The objection is that this testimony was 'hearsay, under the guise of rebuttal.' Crouch had testified for appellant that he was standing in the center of Washington Street; that respondent's car skidded into the crosswalk; that the right side of the automobile struck the boy; and that the boy fell on the right side of North Washington Street. Officer Ellis testified that the crossing guard stated to him that he, the guard, was in the center of the right lane; that he did not see the vehicle until he heard the tires sliding on the road; that the left side of the car hit the boy, and that he had to walk around the car to get to the boy. The guard was plaintiff's witness. The statement of the guard to the investigating officer was inconsistent with his testimony in court. Defendant had a right to impeach the guard's statement by showing his prior inconsistent statement. 'Broadly speaking, any statement of a witness inconsistent with his testimony should be admitted to discredit or impeach him, whether made in or out of court.' 98 C.J.S. Witnesses § 582, p. 556. 'The rule unquestionably is that a witness may be contradicted by proof of a contrary statement whether made in or out of court.' Murphy v. Kroger Grocery & Baking Co., Mo.App., 185 S.W.2d 62, 68(9). See numerous applications of this fundamental rule in 29A Mo.Dig. Witnesses k379(1).

III.

There was no error in permitting Officer Ellis to read the following portion of the same statement taken from the crossing guard: 'While I was waiting for the traffic to get by before the boy was hit they kept wanting to go down the street and cross. They wanted to do something or see some boy down the street. I put my sign across in front of them and made them wait.' This is objected to on the ground that it was hearsay and incompetent and that its admission was 'prejudicial for any purpose.' This portion of the statement was not admissible for impeachment purposes (Crouch not having testified to the contrary) and did constitute hearsay evidence of the facts stated. The facts thus improperly proved, however, could not have prejudiced plaintiff in any wise, but could only have benefited his case. Three boys crossed the street. Two of them made it across safely. Only plaintiff, who was trailing the other two, was struck. Plaintiff was charged with contributory negligence in that he disobeyed the crossing guard's warning signal and ran into the street and into the automobile in violation of the guard's signal and without the guard's knowledge and consent. The hearsay evidence tended to negative the defense of contributory negligence and to demonstrate that the guard made the boys wait; that plaintiff was amenable to the guard's direction, was controllable and was actually controlled. This, coupled with the guard's testimony now about to be related, supported plaintiff's contention that he was not contributorily negligent. The guard testified that he said to the boys, 'Okay, we'll cross now'; that he walked to the center of the road with his sign facing north and south, 'and Jimmie and the three (sic) boys come across. * * * Jimmie was behind the boys that had already stepped off the sidewalk, and all of a sudden here come a car slidin' in to the crosswalk, and Jimmie was unlucky, he was hit.' Error without prejudice is no ground for reversal. 'No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.' Civil Rule 83.13(b); § 512.160(2), RSMo 1959, V.A.M.S.

IV.

There was no error in refusing to discharge the jury because of improper argument of defendant's counsel, as charged. Here is the record:

'But, under these facts and circumstances in this case * * * if you bring in a verdict for the plaintiff in this case then any time that a child in the...