Price v. Seidler, 51721

CourtUnited States State Supreme Court of Missouri
Citation408 S.W.2d 815
Docket NumberNo. 2,No. 51721,51721,2
PartiesFrank PRICE, Respondent, v. Ben SEIDLER, Appellant
Decision Date14 November 1966

Page 815

408 S.W.2d 815
Frank PRICE, Respondent,
v.
Ben SEIDLER, Appellant.
No. 51721.
Supreme Court of Missouri, Division No. 2.
Nov. 14, 1966.
Motion for Rehearing or to Transfer to Court En Banc Denied
Dec. 12, 1966.

Page 817

Jack H. Ross, Coleman, Ross & Cekovsky, Clayton, William L. Mason, Jr., Galena, for respondent.

Lashly, Lashly, Rava, Hyndman & Rutherford, by William I. Rutherford, St. Louis, for appellant.

EAGER, Presiding Judge.

This opinion is written on reassignment. The action is one for personal injuries in which plaintiff received a verdict for $24,000. A motion for judgment or in the alternative for a new trial was overruled, and defendant had appealed. The facts are somewhat unusual and, since the principal contention is that plaintiff did not make a submissible case, we shall be required to state them in some detail.

Austin How was the owner and operator of National Brake Service, a service garage, at 309 S. 7th Street in St. Louis, and the plaintiff, Frank Price, was a mechanic who had been employed by How for six or seven years. Defendant, Seidler, operated a jewelry shop and was an occasional patron of How's. The building occupied by How as a garage was a quonset hut which accommodated three rows of automobiles three vehicles in depth. In front of the building was a small parking area and entranceway sloping toward the building. In August, 1962, and about a week before the occurrences involved here, How had worked

Page 818

on Seidler's 1959 Chrysler Windsor automobile, inserting a fuse in the air conditioner. Seidler saw him do this, and saw him lie down on the floor of the car to do it. The air conditioner then worked satisfactorily for 'say a little over a week' when it went out again; on August 20, 1962, Seidler again took the Chrysler to How and again told him that the air conditioner would not work.

When Seidler arrived at How's garage about 8:00 o'clock in the morning the plaintiff, Price, was working on another car toward the rear of the garage and almost in the center. He was at the back of the car jacking it up; he saw Seidler drive up and saw him stop outside the door of the garage somewhat more than two car lengths from Price. As How walked across the shop Price heard him say that he had a fuse he was going to put in Seidler's car. Seidler, according to Price, was then 'standing just aside of his car.' Price's account of what occurred a little later was as follows: 'I heard the noise of the car, like screeching, sounded like somebody tearing the door down and I turned around to look and I seen this car (Seidler's) just coming at me, so I tried to heave myself up on the back of the car I was working on in order to get out of its way.' When he first heard the noise of the automobile and saw the car it was 'about ten feet' away and 'going too fast, coming so close, real fast' that he was unable to escape; he tried to do so by pulling himself up on the car he was working on. He was thus caught between the cars and suffered severe injuries which we shall refer to later.

Mr. How testified for plaintiff. In substance, his testimony was: that defendant stopped his car perhaps 15 feet in front of the open overhead door of the garage, got out, and told How of his trouble; that the fuse for the air conditioner was located under the dash near the glove compartment; that How slid in under the steering wheel and lay on the floor on his back with his feet on the ground; that the engine was running, that there was 'no doubt' in his mind about that, and that it should be running to test the operation of the air conditioner; that the emergency brake would 'have to be on' to keep the car from rolling down the incline; that he could not 'say for sure' whether he checked the brake and the gears, but 'it's normal' to do so; that he had no recollection of checking the gear buttons. (The gears in that car were operated by a row of buttons on the left side of the dash.) He did not not recall first trying one fuse and then having to get out and go after another one, thus re-entering the car, although that was possible; he further testified, however, that as he was on his back working on the fuse Seidler had leaned in and asked him to listen for a 'hissing sound,' that he felt Seidler against his legs, and about that time he felt his feet moving and raised up; at that time the car went forward at a 'good rate of speed'; it first hit the side of the door, then another car, and finally struck the car on which plaintiff was working, all while How was still on the floorboard. He specifically testified that he did not touch the gear buttons or the ignition (starter) key, that his hand did not come in contact with the gear buttons, nor did he touch any 'wires'; that he 'must have' hit the accelerator when he raised up, in order for the car to 'take off' at the speed it did; that, if the accelerator is depressed, this would overcome the effect of the emergency brake; that this car could not have been started except when its gears were in neutral. (There was no parking gear.) On cross-examination counsel for defendant brought out that the witness remembered that the engine was running, but also got an affirmative answer to a question asking if the 'source' of his recollection was the fact that he knew the engine was running while he was lying on the floor; later, the witness testified again that the engine was running when he got into the car, obviously meaning the first or the only time, as the case may be.

There was evidence from the service manager of the agency which repaired defendant's

Page 819

car that the car could not be started when the gears were in 'drive,' that it could not be driven forward in neutral, and that his agency made no finding of anything wrong with the ignition or gears; also, that there were no wires near the air conditioner fuse which, if struck, would change gears; that witness did testify that a 'short' in the right place in the ignition wire could permit the car to be started in any gear. There was no evidence of the existence of any short whatever.

Mr. Seidler testified, in substance, to the replacing of an air conditioner fuse by Mr. How in the same manner about a week before the present occurrences. On the morning now in question he stopped his car in front of the garage, turned the engine off, did not change the gears, pulled on the emergency brake 'just tight enough so it would hole,' got out, and went in and told Mr. How of his trouble. He further testified: that How lay on the floor, took out the old fuse, got out and got a new one and inserted it, that it still did not work and he got another one; that when he was putting this fuse in, the car 'took off'; that he, Seidler, did not lean in the car, and did nothing to it; he first said that How 'might have' started the engine; but he further testified that he remembered turning the key off. After considerable equivocation on cross-examination he finally testified that he saw How turn the ignition key, apparently twice, for he said that on the first occasion the car stood still; he also tetified that in order to accomplish this How must also have changed the gears, although he did not go so far as to say that he saw that, nor did he recall How shutting off the motor. He finally described the two times when How supposedly turned the key and started the car. He testified that there was nothing wrong with the car, except for the fuse, and that it worked perfectly.

Since plaintiff received a favorable verdict, we must accept as true the testimony favorable to him in deciding the question of submissibility. With a brief explanation to be made later, we accept these facts: that defendant got out of his car 15--20 feet from the open door of the garage, leaving it on a slight downward incline, in driving gear, with the motor running, and the emergency brake on 'just tight enough' to hold the car on the incline; also, that he said nothing to Mr. How about the existing conditions; that when the accelerator of the car was depressed the action of the motor would overcome the resistance of the emergency brake; that there was no evidence of any defect in the car which would make it lurch violently forward unless the accelerator was depressed; also, that Mr. How, did not change the gears or start the motor.

Defendant's brief contains eleven points, five going to the submissibility of the case and five to supposed errors in plaintiff's main instruction. The first point is that plaintiff's case is based on an 'inference' that defendant left the motor running and that the evidence does not sustain that inference. That element did not depend upon an inference; Mr. How testified that the engine was running when he first got into the car (and when defendant got out) and that there was no doubt in his mind about that; in substance, he repeated this later. The fact that counsel questioned him as to the source of his memory and got him, at one point, to say that the source of his recollection was the fact that the engine was running while he was lying on the floor, and also that he was not sure whether he got into the car once or twice, did not destroy his previous positive testimony; this merely went to the effect and weight of Mr. How's total testimony. Those cases where a party, on cross-examination, completely negatives his direct testimony on a material element are not in point. Musielak v....

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