State ex rel. Missouri Highways and Transp. Com'n v. Legere

• Decision Date: 10 March 1986
• Docket Number: No. 13862,13862
• Citation: 706 S.W.2d 560
• Parties: STATE of Missouri ex rel. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. Peter J. LEGERE, Defendant-Appellant, v. Edward THOMPSON and Delbert Wrinkle, Third-Party Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 560

706 S.W.2d 560

STATE of Missouri ex rel. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. Peter J. LEGERE, Defendant-Appellant, v. Edward THOMPSON and Delbert Wrinkle, Third-Party

Defendants-Respondents.

No. 13862.

Missouri Court of Appeals,

Southern District,

Division Two.

March 10, 1986.

Robert W. Schroff, James W. Newberry, Schroff, Glass & Newberry, P.C., Springfield, for plaintiff-respondent.

Frank Cottey, Michele L. Wilson, Bussell, Hough, O'Neal, Crouch & Hall, Springfield, for defendant-appellant.

PREWITT, Chief Judge.

Defendant Peter J. Legere appeals from an adverse judgment resulting from a collision between a car operated by him and a dump truck owned by the State of Missouri being used by the Department of Highways and Transportation.

The State, at the relation of the Missouri Highways and Transportation Commission, brought an action against Legere for property damage as a result of the collision. Legere then filed a counterclaim and a third-party petition against Edward Thompson and Delbert Wrinkle for personal injuries suffered in the collision. Following trial by jury, judgment was entered in accordance with the jury verdict, in favor of plaintiff on its claim and against defendant Legere on his counterclaim and third-party petition.

On March 6, 1980, defendant Peter J. Legere was operating a 1972 MGB automobile in a generally eastbound direction on Interstate Highway 44 in Laclede County. Interstate Highway 44, in the vicinity of the collision, is a four-lane highway with two lanes for travel in each direction. The east and westbound lanes are divided by a grass median. While in the inside eastbound lane, defendant struck the rear of a maintenance dump truck owned by plaintiff. The dump truck was being used to protect a work crew employed by plaintiff to repair cracks along the highway. As defendant's vehicle was passing a tractor trailer truck, defendant saw the dump truck ahead and applied his vehicle's brakes, approximately 100 feet from the dump truck, but was unable to stop before colliding with the rear of the dump truck. The dump truck was either stopped or moving easterly at three to four miles per hour.

Plaintiff's action was based on allegations that defendant negligently caused the collision through failure to keep a careful lookout, and failure to avoid the accident after danger of collision became apparent. Defendant based his claim for personal injury on the negligence of plaintiff and third-party defendants, two of the crew members, in failing to adequately warn of the presence of the stopped or slowly moving dump truck on the highway. Among defendant's contentions of negligence were allegations that plaintiff and the third-party defendants did not put up proper warning signs, did not place a warning sign on the back of the maintenance dump truck, and did not use an electric arrow or warning sign.

In his first point defendant contends that the trial court erred in giving instructions submitting to the jury whether defendant was guilty of fault in failing to swerve his automobile. Defendant asserts that there was no evidence to support that submission as there was no evidence that swerving alone would have avoided the collision.

In determining whether the evidence supported the instructions, we review the evidence from a viewpoint most favorable to plaintiff, giving plaintiff the benefit of every reasonable inference which the evidence tends to support and disregarding defendant's evidence unless it aids plaintiff. Wardenburg v. White, 518 S.W.2d 152, 154 (Mo.App.1974).

The mobility of a car and the quickness with which it may be swerved is a matter of common knowledge. Jenkins v. Jordan, 593 S.W.2d 236, 239 (Mo.App.1979). Formal proof is unnecessary that present day automobiles respond quickly and accurately to a turn of the steering wheel. Id.

The most favorable evidence to plaintiff on whether defendant could have swerved his car and avoided the collision included that the inner eastbound lane was 12 feet wide; the work crew was pouring oil in the crack at the left edge of that lane where it meets the paved shoulder; and the dump truck was "essentially straddling" the crack. The truck, 7 1/2 feet wide, was "half on and half off the shoulder." Consequently, no more than 3 3/4 feet of the truck was protruding into the inner eastbound lane. This left at least 8 1/4 feet in that lane for defendant's MGB, a small car, to have passed through if it was swerved to the right. The truck that defendant was passing just before the collision was in the "middle" of the outer eastbound lane.

Robinson v. Richardson, 484 S.W.2d 27, 29 (Mo.App.1972), states that we can take into account, apparently through judicial notice, the width of modern cars. If appellate courts can judicially notice that a 1954 Chevrolet is less than six feet wide, as was done in Martin v. Sherrell, 418 S.W.2d 209, 212 (Mo.App.1967), and that the distance from the center of one front tire to the center of another front tire on a Chevrolet automobile was about four and one-half feet, as in Fisher v. Gunn, 270 S.W.2d 869, 873 (Mo.1954), then we should be able to judicially notice that plaintiff's 1972 MGB was less than 8 1/4 feet wide.

Defendant testified that he realized that the dump truck was stopped when he was approximately 300 feet from it and that he applied his vehicle's brakes approximately 100 feet before colliding with the truck. Plaintiff presented evidence that the dump truck could have been seen by persons in vehicles traveling east approximately 1/2 mile away. Thus, there was evidence sufficient for the jury to find that if defendant had reacted when danger of collision should have been apparent, he had the time and space to have swerved to the right and missed the truck.

Also, Howard Mott, the driver of the truck defendant was passing just before the collision, testified that when defendant applied the brakes of his car, Mott started pulling his truck to the right and as he passed the dump truck, Mott's truck was off the road and the "whole lane was open to the right of the dump truck". Defendant testified that even when he was applying the brakes he still had control of his car.

In addition, during cross-examination, Mott testified that if defendant had proceeded without applying his vehicle's brakes there was "room to cut in and around" the witness's truck. Although this appears to be a conclusion, there was no objection. Conclusionary evidence received without objection, is to be considered in determining if a submissible case is made; its probative worth and value is for the trier of facts. Bourne v. Manley, 435 S.W.2d 420, 428 (Mo.App.1968).

Based upon the evidence most favorable to plaintiff, there was sufficient evidence to submit to the jury instructions on defendant's failure to swerve. Point one is denied.

Defendant states in his second point that the court erred in allowing a witness to testify because his identity had not been properly revealed in answers to interrogatories. At trial defendant's counsel objected to the witness's testimony because the witness was not mentioned in answers to defendant's interrogatories to plaintiff inquiring of witnesses present at the scene of the collision, "between the hours of one p.m. and three p.m. on the 6th day of March", 1980. The witness testified he did not arrive at the scene until after 3:00 p.m.

Defendant now claims that the witness should have been excluded because his identity was not supplied in an answer to an interrogatory requesting the names and addresses of persons at the scene of the collision "within three hours after the accident."

"It is well established that a litigant may not interpose one objection to evidence in the trial court and different objections to the evidence on appeal." Lee v. Rolla Speedway, 539 S.W.2d 627, 632 (Mo.App.1976). As the contention presented to us was not presented to the trial court before the court made its ruling allowing the testimony, it cannot be considered by us. This point is denied.

Defendant contends in his third point that the trial court erred in preventing him from presenting certain rebuttal evidence after the third-party defendants had rested. Under this point defendant cites only Smith v. Ray M. Dilschneider, Inc., 283 S.W.2d 631 (Mo.1955). That case did not involve an attempt to offer rebuttal evidence. There, the plaintiff sought to reopen his case after he had rested, to introduce into evidence a letter. The trial court denied the request and sustained a motion for directed verdict at the close of plaintiff's evidence.

This would not be a matter of first impression and no relevant authority was cited to us. "Ordinarily, a point of error unsupported by a citation of relevant authority is deemed abandoned." Wright v. Martin, 674 S.W.2d 238, 242 (Mo.App.1984). Where a point is not so novel or unique that authorities would be unavailable, the point should be considered abandoned if no relevant authority is cited. Id. We consider it abandoned here.

Defendant states in his fourth point that the court erred in ruling that an expert employed by defendant would not be permitted to testify. The trial court ruled that the proposed witness's testimony was not proper and that the witness also should not be allowed to testify because his identity was not revealed, in compliance with plaintiff's interrogatories to defendant, to plaintiff's counsel sufficiently in advance of the trial. Plaintiff's attorney was advised of the expert on March 15, 1984, when supplemental answers to interrogatories were delivered to his office by defendant's counsel. Trial commenced on April 2, 1984. Plaintiff's attorney objected to the witness being allowed to testify, stating that at the time he was notified of the witness there was not sufficient time to depose him and "find a counter-expert witness".

The witness was to testify regarding the sufficiency of the...