Stephens v. Bi-State Development Agency, BI-STATE

• Decision Date: 18 March 1969
• Docket Number: BI-STATE,No. 33309,33309
• Citation: 439 S.W.2d 252
• Parties: Edward M. STEPHENS, Plaintiff-Respondent, v.DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 252

439 S.W.2d 252

Edward M. STEPHENS, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.

No. 33309.

St. Louis Court of Appeals, Missouri.

March 18, 1969.

John A. Walsh, Jr., St. Louis, for defendant-appellant.

Wiley, Craig, Armbruster & Wilburn, Richard D. Mills, St. Louis, for plaintiff-respondent.

HERBERT K. MOSS, Special Judge.

Plaintiff-Respondent Edward M. Stephens filed suit for injuries and damages against Defendant-Appellant arising out of a collision on September 18, 1965, between plaintiff's automobile and defendant's bus. The case was tried to a jury and terminated in a plaintiff's verdict in the amount of $1500.00. Defendant-Appellant has appealed from the judgment of the trial court in accordance with the verdict of the jury.

Plaintiff's petition charged defendant's bus driver with failure to keep lookout, failure to sound warning or to swerve, and turning the bus to the left upon the roadway when such movement could not be made with reasonable safety. Defendant's answer was a general denial and contributory negligence. Plaintiff's verdict directing instruction was based on defendant's failure to keep a careful lookout or failure to signal his intention to turn. Defendant's contributory negligence instruction was predicated on plaintiff's causing his automobile to move to the right when unsafe to do so.

Defense counsel in his opening statement stated one or 'maybe two' bus passengers would testify plaintiff's automobile 'cut in' on the bus, that other bus passengers would testify that at no time did the bus move left, and some bus passengers would testify the bus 'hooked a little to the right' to avoid the automobile.

The undisputed evidence was that the collision occurred in the eastbound lanes on Laclede about 200 feet east of Sarah in the City of St. Louis. The left-front end of the bus and the right-rear of the automobile were damaged. The eastbound curb lane was partly filled with parked cars. The defendant's evidence was that the bus was straddling the broken painted line dividing the curb lane from the center lane, about half in each lane. The automobile was in the course of passing the bus when the collision occurred. The plaintiff testified, following the collision, debris and a part of his bumper were located one and one-half feet to the left of the dotted line; that the plaintiff had been traveling in the center eastbound lane. The jury question was the respective movements of the bus and automobile at or immediately prior to the impact.

This case was tried on Monday and Tuesday, April 8 and April 9, 1968. At 3:10 p.m. on April 8, 1968, the trial court ordered an overnight recess because a witness for plaintiff was unable to appear on April 8, 1968. Trial was resumed on the morning of April 9. The plaintiff completed his case and rested and the defendant presented written motions for continuances and affidavits on account of the absences of defense witnesses Robert M. Smith, bus driver, and Mildred Pulliam, a bus passenger. Plaintiff thereupon stipulated Smith, if present, would testify as set out in his affidavit, which affidavit was then read to the jury and the motion for continuance was denied as to witness Smith. Plaintiff objected to the submission of the Pulliam affidavit to the jury for the reason it was cumulative 'as to what the bus driver's affidavit states and also it is cumulative as to some of the facts that other witnesses that Mr. Walsh (defense counsel) is intending to bring in would state.' The trial court denied the admission of the Pulliam affidavit as 'merely cumulative.' The trial court also overruled defendant's motion for a continuance based on the absence of witness Pulliam.

Bennie Matthews, on the afternoon of April 9, a bus passenger, then testified for the defense after which defense counsel in open court announced 'the rest of my witnesses are not going to be here,' and orally moved for a continuance 'based on the absence of witnesses,' which or motion was denied by the Court. The record does not further identify 'my witnesses' nor delineate their testimony.

In Point 9, Motion for New Trial, defendant complains the Court erroneously refused 'defendant's motion for continuance based upon the unavailability of a witness, Mildred Pulliam, and accompanied by an affidavit demonstrating her necessity to defendant's proper defense, the facts to which she would testify if present and that due diligence has been used to procure her attendance.' Under 'Points and Authorities' Defendant-Appellant's brief states 'under all the circumstances taken as a whole, including the absence of all defendant's witnesses save one for various reasons outside the control of counsel, the Court abused its discretion in denying every one of defendant's motions for continuance.' We now rule Defendant-Appellant preserved for review by this Court, only the ruling of the trial court denying a continuance on account of the absence of witness Pulliam as stated in Grounds 9 of the Motion for New Trial. See Supreme Court Rule 83.13, V.A.M.R.

With respect to the movement of the bus and the automobile, bus driver Smith's affidavit as read to the jury stated the bus, after leaving Sarah Avenue, drove at all times in a manner straddling the broken painted line dividing the curb lane from the center lane, that plaintiff's automobile started to pass the bus and in doing so straddled the center line and driving partially on the wrong side of the road; that the plaintiff cut suddenly to his right without signal or warning, striking the left-front side of the bus with the right-rear side of his automobile; that at no time did the bus move to the left as the automobile was passing.

The plaintiff's...