Shaw v. Fulkerson

• Decision Date: 20 August 1936
• Citation: 96 S.W.2d 495,339 Mo. 310
• Parties: Russell Shaw, By Guardian, Appellant, v. Clarence Fulkerson
• Court: Missouri Supreme Court

96 S.W.2d 495

339 Mo. 310

Russell Shaw, By Guardian, Appellant, v. Clarence Fulkerson

Supreme Court of Missouri

August 20, 1936

Appeal from Sullivan Circuit Court; Hon. Paul Van Osdol Judge.

Reversed and remanded.

P M. Marr, Rex H. Moore and Platt Hubbell for appellant.

(1) Defendant's Instruction E submitted or hypothesized to the jury at least four propositions, in support of which there is no evidence. That the defendant was driving "without knowledge of the presence of the automobile of Shaw on the highway" is not supported by any evidence -- and is contradicted by the fact that both Shaw and Long saw a northbound approaching automobile -- and, defendant Fulkerson had the same opportunity to see the automobile of the plaintiff Shaw, that Shaw and Long had to see the approaching automobile northbound. And, while the northbound automobile on the east side of the pavement was approaching the defendant Fulkerson, the automobile of the plaintiff Shaw was between Fulkerson and the northbound automobile which was on the east side of the pavement -- thereby fully enabling the defendant Fulkerson to see the automobile of the plaintiff Shaw. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 2; Kuhlman v. Water Light & Trans. Co., 307 Mo. 636; Goessling v. Excelsior Press Brick Co., 270 S.W. 390; State ex rel. Goessling v. Daues, 314 Mo. 287; Franz v. Hilterbrand, 45 Mo. 123; State ex rel. v. Patton, 77 S.W.2d 857; Doherty v. Gilmore, 136 Mo. 422; Wilcox v. McKinney, 68 S.W.2d 743; Kimberling v. Wab. Ry. Co., 85 S.W.2d 741. (2) Defendant's Instruction E is prejudicially erroneous as a proposition of law, even if there had been evidence on which to base the suppositions hypothesized in it. Knapp v. Gibbs, 277 S.W. 260; Hall v. Ry. Co., 240 S.W. 177; Safety Motor Trans. Corp. v. Cunningham, 171 S.E. 434, 161 Va. 356; 1 Cyc., p. 480, sec. 669; Huddy on Autos. (8 Ed.), pp. 411-412, 465.

Paul D. Kitt, W. A. Lintner and Cave & Hulen for respondent.

The giving of Instruction E does not constitute reversible error. (a) The burden of proving respondent's negligence was on the appellant, and respondent was entitled to have the jury pass upon the weight and credit to be given the evidence. Cluck v. Abe, 321 Mo. 81, 40 S.W.2d 558. (b) Respondent was entitled to have the jury pass upon whether he was guilty of negligence under all the circumstances detailed in evidence. Frese v. Wells, 40 S.W.2d 652; Parker v. Nelson Grain & Milling Co., 48 S.W.2d 910. (c) The weight and credit to be accorded testimony of third parties respecting admissions of respondent outside of court are for the determination of the jury, even though uncontradicted by respondent at the trial and the court cannot assume that such declarations were in fact made, were correctly quoted and were true as a matter of law. Smith v. Ry. Co., 129 Mo.App. 413. (d) Respondent's Instruction E does not constitute reversible error as a proposition of law, the respondent is entitled to have submitted all reasonable inference to be drawn from the circumstantial evidence. Crockett v. K. C. Rys. Co., 243 S.W. 905.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Russell Shaw, appellant, brought this suit against respondent to recover damages for injuries alleged to have been sustained as the result of a collision between a car driven by respondent and a car driven by Shaw. Because of a change of venue the case was tried in Sullivan County, Missouri. Upon a trial there was a verdict for defendant whereupon the plaintiff Shaw appealed. Pending the appeal Shaw was adjudged insane and the appeal was, by permission of this court, prosecuted by a guardian.

Respondent filed a motion to dismiss this appeal for the reason that appellant's counsel had failed to make a clear and concise statement of the case without reiteration, statements of law or argument, as required by Section 1060, Revised Statutes 1929 (2 Mo. Stat. Ann., p. 1341), and Rule 15 of this court.

This question has given us much concern. The statement made contains all the material facts necessary to dispose of the issues on this appeal. In that respect it is a substantial compliance with the rule. If we were to make any criticism on this point it would be that the statement is too long and there is too much detail of immaterial facts.

The rule requires the statement to be made without argument. We find in appellant's statement the following:

"The admissions of defendant Fulkerson made within a few minutes after the wreck occurred, conclusively prove that he caused this wreck and this injury of the plaintiff Shaw, by negligently driving at a high, excessive and unreasonable rate of speed in the circumstances surrounding him, and by driving on the left-hand side of the paved highway.

"The plaintiff here does not emphasize driving around a curve toward the south or toward the southwest on the left-hand side, wrong side of the paved highway. To drive on the left-hand side of a paved highway, in the dark, in the presence of fog and mist, is negligent and reckless even though the paved highway be entirely straight. The plaintiff here does emphasize the acts of defendant Fulkerson in negligently driving at a high and negligent rate of speed in the circumstances, and does emphasize his acts in driving on the left-hand side, wrong and improper side, as he drive toward the south and southwest in the dark and in the presence of fog and mist."

This of course is argument pure and simple. We are perhaps lenient with appellant in not dismissing his appeal. Respondent cites the case of Sims v. Hydraulic Press Brick Co., 19 S.W.2d 294, 323 Mo. 447, as authority for dismissing the appeal. In that case the appeal was dismissed principally upon the ground that the appellant had stated the facts most favorable to him and omitted facts favorable to the respondent. That of course is a more serious offense than to intersperse argument with the statement. In this case, ignoring the argumentative matter, appellant has stated all the facts, including those favorable to respondent. We, therefore, overrule respondent's motion to dismiss the appeal.

The collision in question occurred on a dark, foggy night, the 12th day of January, 1932, two and one-half miles west of Edinburg, on Highway Number 6, in Grundy County, Missouri. Shaw and a man named Wes Long were driving in a westerly direction. Respondent, Fulkerson, was likewise driving in a westerly direction. At a turn, or curve in the roadway they met a car coming from the opposite direction. About the time this car was even with Shaw's car Fulkerson's car crashed into the rear end of Shaw's car forcing it over an embankment. The right front bumper of Fulkerson's car was jammed into and attached to the left rear fender and bumper of Shaw's car. A garage man, who responded to a call, pried them apart. Shaw was injured in the collision. We need not detail his injuries because there was a verdict for the defendant.

Shaw and Long both testified that the first they knew of the presence of Fulkerson's car was when it collided with their car. The plaintiff introduced evidence of statements made by Fulkerson at the scene and shortly after the collision, concerning the manner in which the collision occurred. John Pruitt testified as follows:

"Q. Just explain to the jury how that came up, what you said and what Fulkerson said? A. Me and Mr. Fulkerson had been up north and east of where these cars were and as we were coming down the road I says, 'What about this, how did it happen?' He showed me where he was driving there and where he had crossed the road, and this other automobile coming up there.

"Q. Coming up from which direction? A. It would be at that time traveling northeast, this happened at the turn of the road where the road almost straightened out. They come around the corner like that and practically made the curve before the accident happened. And this other car coming from the south, just ready to make the curve, Mr. Fulkerson was cutting the corner.

"Q. What did he say about which side of the road he was driving on before he saw the car coming from the south? A. He was on the left side of the road; that would be going south and west.

"Q. Who said he was on the left side of the road? A. Mr. Fulkerson said he was on the left side of the road.

"Q. What, if anything, did he say about how fast he was driving? A. He said about 25 or 30 miles an hour.

"Q. What did Mr. Fulkerson tell you he did when he saw this car approaching him and moving to the northeast? A. He said when he saw these lights cut across his car, he bumped into these other fellows about this time.

"Q. Who do you mean by these other fellows? A. I mean Shaw and Mr. Long, of course.

"Q. You mean Fulkerson himself told you that? A. Yes, sir.

"Q. Where were you and Fulkerson when he told you that? A. Coming around the curve from where this wreck was, and we had went up to block the traffic and were watching to keep them from butting into the wrecker."

Dr. Duffy, who was called to the scene of the collision, testified as follows:

"Q. What, if anything, did the defendant, Clarence Fulkerson, tell you about how that wreck occurred? A. He was crying when I got out of the car, and asked me to hurry, said they were bad hurt, said he felt like it was his fault. I don't recall the exact language or words, but anyway he said he was on the left side of the road and saw a car coming from the south, right on to him, and he cut across and hit this other car."

Al Smith, of Missouri, testified that he took some photographs at Fulkerson's request, of the road where the collision occurred. Smith was called as a witness for plaintiff, and the photographs were introduced in evidence by plaintiff. ...