Steffen v. Ritter, 40811.

• Decision Date: 11 October 1948
• Docket Number: No. 40811.,40811.
• Citation: 214 S.W.2d 28
• Parties: STEFFEN v. RITTER.
• Court: Missouri Supreme Court

214 S.W.2d 28

STEFFEN v. RITTER.

No. 40811.

Supreme Court of Missouri, Division No. 1.

October 11, 1948.

Appeal from St. Louis Circuit Court, Division No. 7; Harry F. Russell, Judge.

Action by Nettie Steffen against Henry Ritter to recover for the death of plaintiff's husband, who was struck by defendant's truck. From a judgment for the defendant, the plaintiff appeals.

Judgment affirmed.

Everett Hullverson, of St. Louis (Forrest Boecker, of St. Louis, of counsel), for appellant.

Dearing & Matthes and Will B. Dearing, all of Hillsboro, for respondent.

HYDE, Judge.

This is an action for $15,000 for the wrongful death of plaintiff's husband. The jury found for defendant and plaintiff has appealed from the judgment entered.

The case was submitted on humanitarian negligence but it seems doubtful that plaintiff made a case on that theory. The only direct evidence as to what occurred was the testimony of defendant. Plaintiff contends that the verdict should be set aside because defendant's testimony was unbelievable; that a res gestae declaration of deceased was improperly excluded; and that instruction No. 3 on sole cause was erroneous.

The casualty occurred in St. Louis at the intersection of Broadway (running north and south) and Salisbury Street (running east and west) about 2:30 A.M. on July 25, 1946. The weather was clear and dry and there were four street lights at the intersection, one on each corner. Defendant was driving his 1½ ton truck north between 14 and 18 miles per hour with his headlights lighted. He had stopped at the stop sign at the intersection south of Salisbury. He was a truck gardener and had delivered produce at Commission Row. He was going home with his truck empty. There were double streetcar tracks in the center of Broadway which is 60 feet wide. Defendant was driving north about 1½ to 2 feet east of the east rail of the northbound (east) track. There were no parked cars on that side of the street and there was no safety zone marked at this intersection.

Defendant said that when he was about ten feet south of the south curb of Salisbury he saw deceased walking diagonally across the intersection from the northwest corner toward the southeast corner. He was looking southeast, toward defendant, and was then almost in the middle of the intersection. He continued until he was between the rails of the northbound (east) track and then stopped. As the front part of defendant's truck passed him, he was standing about 4½ feet west of the west side of it. After defendant passed the point where deceased was standing, he heard a noise from the rear of his truck and pulled over to the curb north of the intersection and stopped. He went back and found deceased lying between the rails of the northbound track.

Plaintiff's theory was that deceased was standing to the east of the northbound track, at the southeast corner of the intersection, waiting to board a streetcar there to go to his home. It was about the time he would go to that place after finishing work. It is argued from the nature of his injuries that the physical facts show this and make defendant's version unbelievable; and that this indicates that the verdict was the result of passion and prejudice. It was shown that deceased had a fracture of the left ankle, a contusion of the left knee and a fracture in the right frontal region of the skull. Plaintiff argues that these injuries demonstrate that he was struck on the left side while facing west on the opposite side of the track from where defendant said he was. However, we cannot say that such injuries could only have been sustained if deceased was in the position plaintiff suggests and could not have occurred if the accident happened in the way defendant said it did. "So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds of any other." Parrent v. Mobile & Ohio R. Co., 334 Mo. 1202, 70 S.W.2d 1068, 1074. Plaintiff also had the testimony of a police sergeant that defendant said to him at the time that he never saw deceased before he struck him. However, defendant denied making this statement and the police report made by the other officers who were then at the scene of the casualty was in accord with defendant's testimony at the trial. It was also shown that deceased had been in the hospital for treatment of a serious heart condition and had left contrary to his doctor's recommendations to stay for further treatment. It is not impossible that this condition may have caused him to fall or stagger against the rear of defendant's truck; or he may have misjudged its clearance and started forward too soon. In any event, there is no proof as to what happened and we cannot hold that defendant's testimony was...