Rettlia v. Salomon

• Decision Date: 05 June 1925
• Docket Number: 24646
• Citation: 274 S.W. 366,308 Mo. 673
• Parties: CHARLES RETTLIA v. FREDERICK Z. SALOMON, Appellant
• Court: Missouri Supreme Court

274 S.W. 366

308 Mo. 673

CHARLES RETTLIA v. FREDERICK Z. SALOMON, Appellant

No. 24646

Supreme Court of Missouri

June 5, 1925

Appeal from St. Louis City Circuit Court; Hon. Victor Falkenhainer, Judge.

Affirmed.

Bryan, Williams & Cave for appellant.

(1) The court erred in overruling the defendant's objection to the introduction of any evidence as to the failure of the defendant to have his car equipped with skid chains, for the reason that plaintiff having pleaded specific acts of negligence as causing his injuries, he is limited in his recovery to such specific acts, and any evidence as to other negligent acts on the part of defendant is inadmissible. State ex rel. v. Ellison, 270 Mo. 653; Degonia v. Ry. Co., 224 Mo. 564; Parker v. Drake, 220 S.W. 1000; Hollis v. L. & P. Co., 204 Mo.App. 297. (2) The court erred in refusing defendant's instruction directing the jury if they found that the accident was caused solely by the absence of skid chains their verdict must be for the defendant. (a) That plaintiff, having bottomed his cause of action upon other specific acts of negligence, was not entitled to recover on this ground, and the defendant was entitled to have the jury so instructed. Cases supra. (b) The defendant is entitled to have the jury instructed that if the injury to the plaintiff was caused by any act other than the ones charged in plaintiff's petition the plaintiff is not entitled to recover. Bragg v. Street Railway Co., 192 Mo. 331, 352; Jones v. Rush, 156 Mo. 364; Outman v. Union News Co., 237 S.W. 800; Parker v. Sexton, 217 S.W. 616; B. & O. v. Lockwood, 72 Ohio St. 176; Price v. Railroad, 185 Mo.App 436-439. (3) The court erred in permitting the plaintiff over the objection of defendant, to read excerpts from the defendant's deposition without requiring plaintiff to read all of defendant's testimony on the same point and explanatory thereof. Littig v. Urbauer-Atwood Heating Co. 237 S.W. 785.

Foristel, Mudd, Hezel & Habenicht for respondent.

(1) There was no error in the court's rulings on the evidence with respect to the "skid chains" because: (a) No proper exceptions are shown to have been saved, for that the evidence came in without any timely objection. McCann v. U. R. Co., 249 S.W. 158; Salmons v. Railroad, 271 Mo. 395, 404; Re Drainage Dist., 266 Mo. 60, 71. (b) The evidence was not improper under the pleaded issues. 31 Cyc. 681, note 71; Idem, p. 682, note 81; Gilchrist v. Rys. Co., 254 S.W. 163; Hogan v. Fleming, 265 S.W. 879. (c) The evidence was in any event not hurtful to the defendant so as to constitute reversible error. Kibble v. Railroad Co., 227 S.W. 45. (2) The court did not err in refusing defendant's Instruction B because (a) the instruction was unsupported by evidence. Kane v. Railroad, 251 Mo. 13, 25; Packer v. Ry. Co., 265 S.W. 123. (b) The case was fully covered by the instructions given. (3) The court did not err in allowing plaintiff's counsel to read in evidence as an admission against interest parts of the defendant's deposition taken in the case. 4 Ency. Ev. p. 839 (e); Kritzer v. Smith, 21 Mo. 296; Bogie v. Nolan, 96 Mo. 85; Roark v. Amusement Co., 209 Mo.App. 638; Raphael v. Hartman, 87 Ill.App. 637; Siber v. Hostick, 91 Neb. 255; Dispatch Line v. Glenny, 41 Ohio, St. 166; Morrison v. Life Ins. Co., 59 Wis. 162; Davis v. Mason, 4 Pick. 158; Watson v. Railway Co., 76 Minn. 363; Heimon v. Lamb, 117 Ill. 556; Whitlack v. Fid. & Cas. Co., 47 N.Y.S. 331.

OPINION

White, J.

The appeal is from a judgment recovered by plaintiff in the Circuit Court of the City of St. Louis against the defendant for personal injuries alleged to have been caused by his negligence.

January 14, 1921, the plaintiff, walking north on the east side of Spring Avenue, in the city of St. Louis, approached and started to cross Lindell Boulevard, which runs east and west. At that time the defendant, in an automobile, was driving from the west on the south side of Lindell Boulevard. Plaintiff testified that defendant was at a distance of 250 feet when plaintiff started across Lindell Boulevard. There was a safety zone in Lindell Boulevard, thirty or thirty-five feet from the south curb. It was marked by a cast-iron post with a base around it three or three and a half feet long, and eighteen or twenty inches wide. The post was about eight feet high. The plaintiff testified that he arrived at the post and then turned to look for another man who had started across with him, when the defendant's car struck the post and broke it off at the base, causing it to hit plaintiff and knock him down, so that he knew no more until he recovered consciousness in a hospital. A policeman arrived at the scene after plaintiff was taken away, found the defendant's automobile against the post which was broken off at the base.

The defendant testified that the plaintiff was between the curb and the safety zone, with room enough for him to pass between the plaintiff and the curb when the plaintiffs uncertain movements caused defendant's chauffeur to swerve across so that the car struck the plaintiff, then skidded and struck the post.

The defendant's chauffeur, Fred Meyer, testified that the plaintiff and another man were between the curb and the safety zone as he drove up; that he thought the plaintiff would go ahead of him, but he commenced walking in front of the car at a pretty fair gait, and witness swung his steering wheel around to go north in Spring Avenue; his car missed the post at the front, and skidded into it at the rear. He did not see the machine nor the post strike the plaintiff. He said the front of his car had passed the plaintiff so that he could not see him. When he and Mr. Salomon got out they found the plaintiff lying east and south of the post. They picked him up and took him to the hospital. Other evidence was introduced tending to explain the situation.

The acts of negligence alleged in plaintiff's petition related to the operation of defendant's automobile. There was a verdict and judgment for the plaintiff for $ 12,000, and the defendant appealed.

I. Appellant first assigns error to the action of the trial court in overruling his objection to evidence introduced by the plaintiff to show that defendant's car was not equipped with skid chains, because the lack of skid chains was not alleged in the petition as negligence upon which the plaintiff sought to recover.

The evidence in relation to skid chains first appeared in a portion of a deposition of the defendant offered by plaintiff, as follows:

"Q. Did you have skid chains on? A. No, sir; brand-new tires on, though.

"Q. What kind of tires did you have? A. Firestone anti-skid in the rear and rib tread in the front, brand new.

"Q. Did you have skid chains for that car? A. No sir.

"Q. What was the condition of those tires on that day; that is, on the 14th day of January, 1921, in respect to the non-skid projections on the tires? A. They were in perfect condition.

"Q. Well, now, based on your knowledge and experience in driving cars for several years, of approximately the same weight and size as this Haynes car, on a street slightly upgrade, what degree of protection do non-skid tires afford as compared with skid chains? A. Just about the same."

The defendant was called as a witness in his own behalf and during his cross-examination by the plaintiff the following occurred:

"Q. Were there any skid chains on this car? A. No. sir.

"Q. Driving a car on an icy street without skid chains? A. Yes, sir.

"Judge Cave: If your Honor please, I object to that. There is no allegation on that.

"The Court: Objection overruled.

"To which action of the court defendant by his counsel then and there excepted.

"Q. There were no skid chains on it? A. No sir.

"Q. Did you have skid chains with this car? A. No sir.

"Q. What was the condition of this street? A. Icy.

"Q. You were driving down town this morning in this limousine? A. Ice, covered with snow.

"Q. Covered with snow? Anybody else in the machine besides you and your chauffeur? A. No one else."

From this it appears that the deposition was read, without objection. Then, on cross-examination, when the defendant was asked about skid chains there was no objection until after he had answered the question, nor until another question was asked connecting the absence of skid chains with the icy condition of the street. Then the defendant objected because "there is no allegation on that." That is, there was no allegation of negligence in driving on the slippery street without chains. There was no objection to the evidence as to skid chains, because the question was repeated and answered without objection. The defendant himself introduced evidence to show that there was snow on the street and it was in a slippery condition, and that caused the question to be put in the form to which the defendant objected. It was the form of the question and not the substance of it that the defendant objected to.

The measure of the defendant's care depended upon the condition of the car and its equipment, and the condition of the street. For the purpose of showing the care required of him, it was proper to show all the surrounding circumstances and the condition and equipment of the car. If the car was equipped with skid chains, under some circumstances it might require less care in approaching the street crossing or a pedestrian than it would require if the skid chains were absent. Not only was no negligence alleged regarding the absence of skid chains, but the jury was instructed that they could "find for the plaintiff only in the event that you find and believe from the preponderance -- that is the greater weight -- of the credible testimony that the defendant was guilty of negligence in one or more of the particulars...