Stutte v. Brodtrick
| Decision Date | 13 July 1953 |
| Docket Number | No. 1,No. 43237,43237,1 |
| Citation | 259 S.W.2d 820 |
| Parties | STUTTE et al. v. BRODTRICK |
| Court | Missouri Supreme Court |
Mark D. Eagleton, St. Louis, Rene J. Lusser, St. Louis, Charles R. Warner, St. Louis, for appellants, Chester Stutte and Marcella Stutte.
Moser, Marsalek, Carpenter, Cleary & Carter, F. X. Cleary, St. Louis, O. P Owen, St. Louis, for appellant William A. Brodtrict, administrator of the estate of Leonard Brodtrick, deceased.
Remmers & Remmers, Oliver T. Remmers, Douglas B. Remmers, St. Louis, for respondent William J. Krutsch.
Action for wrongful death of plaintiffs' son; verdict and judgment for $15,000 against both defendants. Motion for new trial of defendant Brodtrick was overruled; but motions of defendant Krutsch to set aside judgment against him and enter judgment in his favor and for a new trial were sustained. Defendant Brodtrick has appealed from the judgment entered against him. Plaintiffs have appealed from the judgment entered in favor of Krutsch and from the order granting him a new trial. Defendant Brodtrick attempted to also appeal from these orders but he is not aggrieved by them within the meaning of Section 512.020. (Statutory references are to RSMo and V.A.M.S) See White v. Kuhnert, Mo.App., 207 S.W.2d 839; See also Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559, loc. cit. 563 and cases cited.
Plaintiffs' son, 13 years old, was killed in an automobile collision on Highway 66 in St. Louis County, July 2, 1950. He was riding in the front seat of Leonard Brodtrick's Pontiac. Brodtrick was driving and Hilda Sabourin sat between them. They were returning to St. Louis from a restaurant near the Meramec River, which they left about 4:30 a. m. Bob Hoeynck and Jean Lutz left ahead of them in Hoeynck's Buick. It was cloudy and dark but the pavement was dry. Highway 66 had four lanes from the St. Louis City limits to about two miles west of the place of the collision. It ran east and west and went on an overpass over Lindbergh Boulevard, nine-tenths of a mile west of the place of collision. At that place, it was posted for a speed limit of 35 miles per hour.
Hoeynck started first and, according to Miss Lutz, was driving between 60 and 65 miles per hour after crossing the Meramec. (She only looked at the speedometer once.) Brodtrick was gaining on them, flashing his spotlight across the highway. Plaintiffs' witness Henry C. Sissom said he was driving a tractor-trailer east at 60 to 65 miles per hour and that after he left Lindbergh Boulevard he saw a spotlight flash from the Pontiac and the two cars soon passed him. He was driving in the outside (south) lane, the Buick passed him in the inside lane, south of the center line, and the Pontiac in the inside lane, north of the center line, on the wrong side of the road for eastbound traffic. He said the two cars were practically side by side when they passed him and he estimated their speed at 'right around ninety miles an hour; maybe a little better.'
East of Lindbergh, defendant William Krutsch was delivering Sunday morning papers in a station wagon type of car. He made a delivery at the Haldiman residence on the south side of the highway and then drove on to the south lane. His next delivery was to be Dr. Duemler's, whose driveway was 680 feet east of the Haldiman driveway, on the north side of the highway. Krutsch could see 700 to 800 feet west to the top of the grade and there were no cars in sight when he drove on to the south lane. He moved over gradually and straightened out in the inside south lane as he reached the next driveway, 95 feet east of the Haldiman's. He got in this lane because he intended to make a left turn into Dr. Duemler's driveway. He said he drove 15, 20 or 25 miles per hour. After Krutsch straightened out in the inside lane, he saw two cars coming down the grade five or six hundred feet behind him, one moving a spotlight sideways. He kicked his stoplight a couple of times and kept moving ahead. The Buick swerved to the right and passed him on the outside (south) lane. The Pontiac skidded around him to the north and struck a westbound Chevrolet (driven by Joffre Thompson, a St. Louis Policeman) in the outside north lane. (Harold Thompson and George Morgan, nephews of Joffre Thompson were riding with him.) The Pontiac slid sideways into the front end of the Chevrolet and all three of the occupants of the Pontiac were killed. A State Highway Patrolman, J. B. Upton, found heavy skid marks from a point 222 feet west of where the cars were, after the collision. They started 'approximately at the center line' of the highway, and went straight forward for about 142 feet and then went diagonally northeast for the last 80 feet. These diagonal skid marks were wider and indicated the car was skidding sideways. There were also tire marks 39 feet behind the Chevrolet. Thompson said he was driving from 40 to 45 miles per hour and required about 75 feet to stop. According to Miss Lutz, the speed of the Buick was not more than 60 to 65 miles per hour; Brodtrick had continued to gain on them, flashing his spotlight behind them. Hoeynck did not testify but he gave his speed as 60 to 65 miles per hour to Patrolman Upton at the scene of the casualty. There were also skid marks behind the Buick but Upton did not measure them.
The case was submitted against defendant Brodtrick on excessive speed and driving on to the north or left side of the highway. No complaint is made about these instructions and it is obvious that there was substantial evidence to support them. The case was submitted against defendant Krutsch for failure to operate his car as close to the right hand side of the highway as practicable. Defendant Brodtrick claims error in refusing to discharge the jury because of the following matters:
First: On direct examination of Patrolman Upton, called as a witness by plaintiffs, the following occurred:
'
'Mr. Cleary: I object to that and ask it be stricken from the record and the jury instructed to disregard it.
'Mr. Cleary: I am objecting to that.
'The Court: It is a question for the jury as to the excessive rate of speed.
'Mr. Cleary: In view of the fact that the testimony has been adduced before the jury, I move for a discharge of this jury.
'The Court: Overruled.'
Defendant relies on Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242 in claiming this was an improper and prejudicial conclusion as to excessive speed. It was held that the conclusion in that case (fixing the point of a collision from the location of debris) was not a proper subject of expert testimony. Determination of high speed from skid marks and the condition of the wrecked car, by one who has had training and experience in such matters, is at least a different proposition, although the term 'excessive' should not have been used. However, the Court made it very clear that excessive rate of speed was a question for the jury and, in view of this statement, we do not see how this testimony could have materially affected the merits of the case. See Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10. Moreover, only general objections were made which were insufficient to preserve any definite evidence point for review. Home Exchange Bank v. Koch, 326 Mo. 369, 32 S.W.2d 86, loc. cit. 90; Feltz v. Terminal Railroad Ass'n of St. Louis, 336 Mo. 790, 81 S.W.2d 616, loc. cit. 619; Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883, loc. cit. 887. This assignment is overruled.
Second: On cross-examination of Upton, several requests for discharge of the jury were made because of claimed improper questions and statements by counsel for defendant Krutsch, as follows:
(a) When Upton said he talked to Krutsch, at the scene, he was asked: 'Did you also say to him, 'you are not involved, go on.'' (The record does not show this question was answered.) Only a general objection was made and the Court instructed the jury to disregard the question and answer; and also said: 'That is a question for the jury and the Court to determine as a matter of law.' No further action was requested as to this matter.
(b) Krutsch's counsel questioned Upton to show his training and qualifications to testify concerning speed from stopping distances and asked him about a chart used by the Patrol. The Court did not permit testimony as to what the chart showed, saying the chart would be the best evidence, and also refused to admit the chart in evidence when objection was made on the ground that it was hearsay.
(c) Objection was made by plaintiffs' counsel to a hypothetical question asked Upton by Krutsch's counsel as to determining the speed of Brodtrick's car and his objection included another element suggested to be added to the question. Objection was made 'because of prejudicial conversation here in the presence of the jury' (between the two lawyers). The Court instructed the jury to disregard any conversation between counsel and told them to be guided only by what they hear from the witness stand and the instructions given by the Court as to the law of the case.
(d) In arguing for the introduction of the chart, Krutsch's counsel said it was recognized as a standard chart by the National Safety...
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