Palmer v. Lasswell

• Decision Date: 22 April 1954
• Docket Number: No. 7214,7214
• Citation: 267 S.W.2d 492
• Parties: PALMER v. LASSWELL et al.
• Court: Missouri Court of Appeals

Page 492

267 S.W.2d 492

PALMER v. LASSWELL et al.

No. 7214.

Springfield Court of Appeals, Missouri.

April 22, 1954.

Esco V. Kell, West Plains, for defendant-appellant, Lee Lasswell.

Green & Green, West Plains, for plaintiff-respondent.

STONE, Judge.

Plaintiff, Mrs. Lola B. Palmer, sought by her petition in this action to recover damages of $10,000 from defendants, Lee Lasswell, R. G. Collins and Mrs. R. G. Collins, for injuries alleged to have been sustained in a vehicular collision on April 20, 1951. Upon motion to dismiss at the close of plaintiff's evidence, the jury was directed to return, and did return, a verdict for defendants Collins. The trial thereafter continued with Lasswell as sole defendant; and, at the conclusion thereof, the jury returned a verdict of $500 against him. From the judgment entered thereon, defendant Lasswell has perfected this appeal.

Plaintiff was riding as a passenger in a 1938 Plymouth automobile, then being driven by her husband in a Northerly direction on the blacktop roadway of U. S. Highway No. 63 inside the corporate limits of West Plains, Missouri. Mrs. Collins, driving a 1950 Ford, turned onto Highway 63 'quite a ways' North of the point of accident and traveled in a Southerly direction to the intersection of Highway 63 and Third Street, where she stopped, headed South, on her right-hand or West side of the highway, while she waited for approaching North-bound vehicles (including the Palmer automobile) to pass before she made a left-hand turn to the East onto Third Street. Defendant Lasswell, who was driving a 1948 Ford truck in a Southerly direction on Highway 63 behind the Collins automobile, ran into the rear end of the Collins automobile after it had stopped, knocking the Collins automobile 'possibly 80 feet down the road' and over an embankment into a yard on the West side of the highway. Within a split second after the initial impact with the standing Collins automobile, the South-bound Lasswell truck collided with the North-bound Palmer automobile, in which plaintiff was riding. Plaintiff's husband said that his automobile was struck 'right behind the driver's seat'. Defendant Lasswell described the impact as a 'scraping blow'.

There was a sharp conflict in the testimony as to the speeds of the Palmer automobile and the Lasswell truck and as to whether the collision between those vehicles occurred on the East or West side of Highway 63. Plaintiff and her husband said that they were driving in a Northerly direction at a speed of 15 to 20 miles per hour on their right-hand or East side of the highway, when the approaching Southbound Lasswell truck, traveling (as plaintiff's husband said) at 'a terrific speed, about 65 to 70 miles an hour', ran into the rear end of the standing Collins automobile, came across the center line of the highway, struck the Palmer automobile, and knocked it about 64 feet. Although she did not see the actual impact between the Palmer automobile and the Lasswell truck, Mrs. Collins (who was called by plaintiff's attorneys during their case in chief) said that, after stopping on her right-hand or West side of the highway to wait for approaching North-bound vehicles to pass, she 'heard Lasswell's truck'; that, when she then observed in her rear vision mirror the South-bound Lasswell truck some 50 to 60 feet behind her, it was traveling at a speed of 50 to 55 miles per hour; and, that the North-bound Palmer automobile then was on its right-hand or East side of the highway traveling at a speed of 15 to 20 miles per hour.

The official report of the Missouri State Highway Patrol, received in evidence without objection, shows the following statement by defendant Lasswell: 'Well, the (Collins) Ford stopped in front of me and I hit it and bounced over into the side of the other (Palmer) car.' Sergeant Clyde Brill of the Highway Patrol, who investigated this accident, testified that he found skidmarks, 49 feet in length, which 'followed the (Lasswell) truck down to where it was sitting' (although the location of those marks with respect to the center of the highway was not shown in evidence); that, 'at the scene of any accident the dirt, etc., falls from the bottom of the cars to indicate fairly close to the point of impact'; and that, from an examination of the dirt, glass and debris on the highway, the point of accident was 'possibly 2 feet' on the East side of the center. We are not here concerned with the admissibility of this testimony by witness Brill, since no error with respect thereto is assigned on this appeal; but, as to the competency of such testimony, the curious may be interested in examining Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247-249(9, 10).

Defendant Lasswell's explanation of the accident was that 'I applied my brakes to stop about the time she (Mrs. Collins) did and there was a little bit of clay on the pavement and I scooted just enough to bump her car and it scooted down in * * * Marvin somebody's yard'; and that, 'after I bumped this car--Palmer was watching this car in front of me and deliberately run behind them and into the left front wheel of my truck'. Lasswell said that, when he applied his brakes, he was traveling about thirty miles per hour. He estimated the speed of the Palmer automobile at 'beyond 60 miles an hour' and insisted that, at the time of collision, the left front wheel of the Lasswell truck was 'just about 18 inches' West of the center of the highway.

Plaintiff, about 61 years of age at the time of accident, testified that she was in bed two weeks following the collision, at home six weeks before she undertook to work, and at home another two weeks when she found that she was unable to return to work. Her work, other than as a housewife, is indicated to have been 'book work' for her husband, a plumber. Dr. E. C. Bohrer of West Plains examined and attended plaintiff immediately following the accident and on several subsequent dates; and, at Dr. Bohrer's suggestion, plaintiff went to Springfield for examination by Dr. Robert D. Duncan on May 17, 1951. Dr. Duncan detailed in evidence the various symptoms and conditions then present, including pain and soreness in the left chest, left knee, left arm and right thigh, 'some thickening, soreness and swelling in the left breast', 'slight discoloration in the region of the left elbow', 'several thickened, firm areas' on the anterior aspect of the right thigh, a laceration on the left side of the head, and general body bruises. X-ray examination revealed generalized arthritis 'of fairly long standing'.

Re-examination by Dr. Duncan on December 20, 1952, showed 'callus formation about the anterior portions of the first, third and fifth ribs on the left', and Dr. Duncan expressed the definite opinion that there had been fractures of those ribs which, however, had not been discovered in his previous examination on May 17, 1951. The examination of December 20, 1952, showed the same generalized arthritic condition. Plaintiff had 'continued complaints of soreness in the left chest and breastbone area', 'soreness in her left knee * * * when she was up and about too much', and 'occasional soreness in right thigh and in the left shoulder'. There was still 'some limitation of motion of the left shoulder'.

According to Dr. Duncan, plaintiff's arthritic pain was 'pretty well localized * * * in the left shoulder and knee' at the time of his examinations, and 'it looks as though there was some aggravation as a result of the injury in those areas'; and, Dr. Bohrer said that the accident 'most probably' aggravated plaintiff's pre-existing arthritis. Both doctors agreed that traumatic aggravation of plaintiff's arthritis might result in pain and suffering for an indefinite period. When the case was tried on January 30, 1953, more than twenty-one months after the date of accident, plaintiff testified that her chest 'still hurts'.

Of course, we must here consider the evidence in the light most favorable to the verdict below, must give plaintiff the benefit of every favorable inference which the evidence tends to support, and must disregard defendants' evidence unless it aids plaintiff's case. Smith v. Siedhoff, Mo., 209 S.W.2d 233, 234(1); Williamson v. St. Louis Public Service Company, 363 Mo. 508, 512-513, 252 S.W.2d 295, 297(1); Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 462, 202 S.W.2d 25, 29(2).

Upon appeal, defendant assigns error in that 'the evidence was insufficient under the law to support the verdict', in the giving of plaintiff's Instructions A and G, in the refusal of defendant's Instruction 7, and in the admission of two kodak pictures, Plaintiff's Exhibits 1 and 2. Defendant's assignment of error that 'the evidence was insufficient under the law to support the verdict' is a complaint that the verdict was against the weight of the evidence. Arnold v. Haskins, 347 Mo. 320, 147 S.W.2d 469, 471-472(3), and cases there cited. 'To say that there is an insufficient amount of evidence implies that there is some evidence, and therefore to say 'that the evidence is insufficient to support the verdict' can be construed as meaning that there is some evidence, but not enough in the light of the evidence, to the contrary to support the verdict'. Gates v. Dr. Nichols' Sanatorium, 331 Mo. 754, 55 S.W.2d 424, 425; Cf. Ponyard v. Drexel, Mo.App., 205 S.W.2d 267, 271; Schreiner v. City of St. Louis, Mo.App., 203 S.W.2d 678, 680(5). But, the weight of the evidence is ordinarily for the trial court; and, 'Cases are, indeed, rare wherein an appellate court can or should say that a trial court abused its discretion in not granting a new trial for the reason that the verdict was against the weight of the evidence'. Reger v. Nowotny, Mo., 226 S.W.2d 596, 598(7), and cases there cited. Upon the evidence hereinbefore reviewed, it is clear that defendant's assignment that 'the evidence was insufficient under the law to support the verdict' must be...