Voyles v. Columbia Terminals Co.
| Decision Date | 18 October 1949 |
| Docket Number | 27538 |
| Citation | 223 S.W.2d 870 |
| Parties | VOYLES v. COLUMBIA TERMINALS CO |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Thomas M. Gioia, and LeRoy Crouthers, of St. Louis, for appellant.
Louis E. Miller, Miller & Landau, and B. Sherman Landau, of St Louis, for respondent.
BENNICK PER CURIAM
This is an action for damages for personal injuries which plaintiff Harry L. Voyles, claims to have sustained by being struck in the face by a loosely fastened tarpaulin covering the trailer of a truck owned and operated by defendant, Columbia Terminals Company.
The jury returned a verdict in favor of plaintiff for the sum of $ 3,000, the full amount sued for. Judgment was entered accordingly; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
The accident is alleged to have occurred on Fourth Street at its intersection with Washington Avenue, in the City of St. Louis.
Plaintiff was walking eastwardly along the south side of Washington Avenue on his way to a bus stop near the end of Eads Bridge, where he expected to board a bus for his home in Belleville, Illinois. Just as he stepped down from the curb on the west side of Fourth Street, traffic was changed to north and south. According to plaintiff's version of the facts, he remained standing a foot or so out from the curb while he waited for a break in the traffic before continuing across the street. Among the vehicles traveling southwardly on Fourth Street were two tractor-trailer trucks belonging to defendant, the one following closely behind the other. The body of each trailer was completely covered by a tarpaulin for the protection of whatever was being carried by the truck. The tarpaulin over the first trailer was apparently securely fastened, but not so the tarpaulin over the second trailer, which was loose so that it flapped in the wind. The first truck passed plaintiff without incident, but as the second truck was passing him, the trapaulin flapped out from the side of the truck, striking him across the face, and inflicting the injuries for which he seeks to be compensated in this proceeding.
One Bridges, who had been following some little distance behind plaintiff, helped him to his feet and assisted him across the street and to a tavern in the middle of the block, where he was found by the police officers, who had him removed to City Hospital. Bridges corroborated plaintiff's testimony in regard to how the accident had occurred.
The negligence relied on was the act of defendant in having the tarpaulin so insecurely fastened as to permit it to flap out from the body of the truck. Issue was joined by a general denial coupled with a subsequently abandoned plea of contributory negligence.
Three police officers testified in the case, the one as a witness for plaintiff and the other two as witnesses for defendant; and the sole question on this appeal is whether the court committed error in permitting plaintiff's counsel, during his cross-examination of the two who testified for defendant, to attempt to have such officers refresh their respective memories as to how the accident had occurred by recourse to the police report which had been prepared in accordance with the usual practice of the police department. Originally the claim of error had likewise embraced the refreshing of the memory of the officer who testified as plaintiff's own witness, but that phase of the matter has been abandoned in the final submission of the case.
It is a settled rule that a witness who does not recall or is uncertain about matters concerning which he is called upon to testify may be permitted, and even compelled, to refresh his memory by referring to writings, records, and the like, and then to testify in regard to those matters where his memory has been so refreshed that he is able to testify from his present recollection independent of the source by which his memory was revived. Nor, in refreshing his recollection, is the witness to be confined to writings and records which he himself has made, but he may as well be permitted to refer to writings or records made by another person which he knows to be correct. State v. Patton, 255 Mo. 245, 164 S.W. 223; Taussig v. Schields, 26 Mo.App. 318; 70 C.J. 577 et seq.; 58 Am.Jur., Witnesses, secs. 579, 583, 584, 586, 590.
Generally speaking, the question of whether a witness may be allowed to refresh his recollection is a matter reposing in the discretion of the trial court, reviewable only for abuse. Winn v. Modern Woodmen of America, 157 Mo.App. 1, 137 S.W. 292; 70 C.J. 578; 58 Am.Jur., Witnesses, sec. 581. However a sound discretion would ordinarily dictate that a witness should not be asked to refresh his recollection unless it is first shown that he needs the aid of a refreshing memorandum of some sort in order to recall the facts to his mind. State v. Weiss, Mo.App., 185 S.W.2d 53; 70 C.J. 582; 58 Am.Jur., Witnesses, sec. 580. It consequently follows, therefore, that where a witness has testified positively and readily so as to indicate that his memory is not obscured, one may not be permitted, in the guise and on the pretext of refreshing the witness' recollection, to make use of a favorable memorandum with an actual view to contradicting the witness or inducing him to change his testimony. Clymer v. Kansas City Rys. Co., Mo.App., 214 S.W. 423; 70 C.J. 582.
The police officer testifying for plaintiff was Officer Rubesa, and while defendant has abandoned its complaint regarding the propriety of permitting Officer Rubesa to refresh his recollection by consulting the police report, the manner in which the report was brought into his examination is nevertheless of importance in so far as it discloses how the report was prepared and what it apparently contained with respect to the matter in controversy.
Officer Rubesa testified that on the afternoon in question he was sent to investigate a report of a man having been injured at the particular location, and found plaintiff in the tavern at 304 Washington Avenue. One of the officers who had preceded him to the tavern had already summoned a patrol car, and upon his own arrival Officer Rubesa placed plaintiff in the car and had him taken to City Hospital as is customary in the case of persons found injured on the street. He left plaintiff in the charge of one of the doctors at the hospital, and obtained a diagnosis of his injuries, which he incorporated in the police report.
Asked if he remembered what plaintiff had told him as to what had occurred, or whether he would care to see a copy of the police report, Officer Rubesa replied that he would like to see the report in order to refresh his recollection. Defendant's counsel objected upon the ground that the report did not purport to be that of Officer Rubesa himself but was signed by the commanding officer of the district. It was then brought out that the commanding officer's name appears on all reports made out in his district, but that it had been Officer Rubesa who had furnished the information that had gone into the report. ...
To continue reading
Request your trial