Walsh v. Bekins Van Lines Co., 15134.

• Decision Date: 21 December 1954
• Docket Number: No. 15134.,15134.
• Citation: 217 F.2d 388
• Parties: Richard H. WALSH, Appellant, v. BEKINS VAN LINES CO., a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F.2d 388 (1954)

Richard H. WALSH, Appellant, v. BEKINS VAN LINES CO., a corporation, Appellee.

No. 15134.

United States Court of Appeals Eighth Circuit.

December 21, 1954.

Walter S. Berkman, St. Louis, Mo. (Kappel & Neill, St. Louis, Mo., were with him on the brief), for appellant.

Fred B. Whalen, St. Louis, Mo. (James R. O'Connor, St. Louis, Mo., was with him on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Richard H. Walsh on the morning of March 15, 1953, drove his DeSoto automobile from St. Louis, Missouri, where he resided, to Jefferson City, Missouri, to attend a Knights of Columbus initiation. He left Jefferson City on his return trip about 7:30 P. M., driving east on Highway 40, which has a two-lane concrete pavement at least 20 feet wide. Near Wright City, Missouri, at about 9:30 P. M., the Walsh car had a collision with a tractor-trailer belonging to Bekins Van Lines Co., which was traveling west. Walsh was injured. He brought this action against the Van Lines Co. for compensation for his injuries, upon the claim that the negligence of the driver of the tractor-trailer caused the collision. The defendant (appellee) denied liability and asserted that Walsh was negligent in the operation of his car.

The issues were tried to a jury, which returned a verdict for the defendant, upon which judgment was entered. The plaintiff has appealed. He asserts that "The court erred in refusing to permit witness Smith, when asked by counsel for appellant on redirect examination, to explain what he meant by the statements read from his deposition during his cross-examination which were inconsistent with his direct testimony."

The main issue upon the trial was whether the tractor-trailer of the defendant had invaded the south lane in which Walsh was traveling east or whether Walsh had invaded the north lane in which the tractor-trailer was going west. It is unnecessary to detail the evidence. That of the plaintiff's witnesses tended to show that the tractor had swerved a short distance over the center line into the south lane. The evidence on behalf of the defendant indicated that the Walsh car had been driven across the center line and into the tractor, striking the left saddle tank back of the cab.

The plaintiff's witness Smith, on direct examination, testified that just before the collision he was driving his car 150 to 200 feet behind the plaintiff's car, which was at all times about 18 inches to the right of the black line marking the center of the highway; that he (Smith) saw the tractor-trailer rounding the curve a quarter of a mile east of the viaduct near which the accident occurred; that when the tractor-trailer was near the plaintiff's car, he (Smith) saw "the truck make a dip over the line"; that "By `a dip'" he meant "a swerve, like a wheel hits something and the truck dips like this and then jerks back, or swerves, just make a swerve like the driver jerks it back"; that he saw a portion of the "truck" cross the center black line and saw the DeSoto strike the left saddle tank behind the cab of the tractor.

On cross-examination, Smith was asked whether he had made certain statements about the accident in a deposition. He admitted making the statements, which were, in substance, as follows: (1) that the impact was "practically in the middle of the road"; (2) that "it looked like the truck just dipped and the front of the car hit the gas tank"; (3) that the trailer was on its right side of the road and that he was not testifying that he saw...