Weaver v. Scofield
| Decision Date | 06 December 1946 |
| Docket Number | 6663 |
| Citation | 198 S.W.2d 240 |
| Parties | WEAVER v. SCOFIELD |
| Court | Missouri Court of Appeals |
Moser Marsalek & Dearing and Will B. Dearing, all of St. Louis, and Robert C. Hyde, of Poplar Bluff, for appellant.
Cope & Ponder and Tedrick & Tedrick, of Poplar Bluff, for respondent.
VANDEVENTER
Plaintiff (respondent here) procured a judgment against defendant (appellant) for $ 2,000 for injuries alleged to have been received by plaintiff while alighting from a bus of defendant. The allegation of negligence in the amended petition, upon which the case was tried, is as follows: 'Plaintiff states that while said motor bus was stopped, as aforesaid, and while he was in the act of alighting from said bus and while he had one foot on the bus step, and was in the act of placing his other foot on the sidewalk, on the west side of Main Street which was the usual and proper place for passengers to alight at that stop, the driver of said bus, who was then and there in the exclusive charge and control of said bus, and while acting within the scope of his employment as the agent, servant and employee of the defendant, for some cause or reason wholly unknown to the plaintiff, negligently and carelessly caused or permitted said bus to run backwards with a sudden, violent and unusual jerk, and as a direct and proximate result of said negligence and through no fault or negligence on the part of plaintiff, plaintiff was thrown with great force and violence onto the concrete sidewalk and injured * * *.'
Plaintiff's evidence showed that while alighting from the bus in question, the bus suddenly moved backwards into a depression in the street throwing plaintiff to the ground and causing the injuries complained of.
Defendant's testimony was that plaintiff's foot slipped while stepping from the bus to the curb, that he fell and was injured, and that the bus did not move back into the depression. Defendant's answer was a general denial with an allegation that plaintiff was guilty of contributory negligence in that he failed to watch where he was stepping while alighting from the bus which was standing still.
E. H. (Red) Evans was the bus driver and he testified in behalf of defendant. On direct examination, his testimony was in part as follows:
'
On cross examination, he further testified:
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Upon rebuttal plaintiff was permitted to offer the testimony of three witnesses to the effect that at other times subsequent to the accident, they had seen the bus, while Evans was driving, roll back into the depression in the street, which was made for the purpose of permitting water to run into the sewer. This testimony in rebuttal was offered over the strenuous objection of defendant.
The only assignment of error on the part of appellant is as follows: So the only question before this court is was this testimony admissible?
The law is well settled that where a witness is cross-examined as to a collateral matter, the cross-examiner is bound by the witness' answers and will not be permitted to offer evidence to contradict the witness relative to such answers.
Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 45 S.W.2d 71; State v. Valle, 196 Mo. 29, 93 S.W. 1115; State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16; Carder v. Primm, 60 Mo.App. 423; Connell v. A. C. L. Haase & Sons Co., 302 Mo. 48, 257 S.W. 760; 70 Corpus Juris, Page 1161, Sec. 1345; Roe v. Bank of Versailles, 167 Mo. 406, 67 S.W. 303; State v. Hewett, Mo.Sup., 259 S.W. 773; State ex rel. Horton v. Clark et al., 320 Mo. 1190, 9 S.W.2d 635; State v. Lynn, Mo.App., 184 S.W.2d 760; Hoffman v. Graber, Mo.App., 153 S.W.2d 817.
The reason for this rule is that the bringing in of collateral matters broadens the inquiry, tends to confuse the jury as to the real issues involved and does not give the opposing party an opportunity to be prepared to disprove matters not raised by the pleadings.
Plaintiff contends that this evidence was admissible because it tended to rebut evidence given by the bus driver on direct examination. But on direct examination the bus driver merely stated that the bus could not move while the air brakes were applied. It was on cross-examination that he denied ever letting the bus run back into the depression. Plaintiff further contends that this evidence was also in rebuttal of voluntary statements made by the witness, and that it was also admissible as tending to establish the physical features of the street and the physical fact that the bus would run backward under certain conditions. In support of the last two contentions, plaintiff cites a number of cases holding the testimony of other accidents similar to the one upon inquiry is admissible to illustrate the physical facts or to show that the defendant had notice of the defect claimed to have caused the accident. Plaintiff also takes the position that this evidence was admissible in chief and that its admission in rebuttal was a matter in the sound discretion of the trial court.
There was no dispute in the testimony as to the existence of the depression in the street. It had been built there to conduct surface water into an opening to the sewer, and defendant's servant knew these facts. There was no dispute but that the bus would of its own weight move back into the depression if the air brakes were released. The bus driver, on cross-examination testified to that fact. The evidence objected to merely showed that sometime between the date of the accident and the date of the trial (approximately a six-month period) witnesses had observed the bus, while in charge of the same driver, settle back into the same depression. There is no contention that these movements of the bus resulted in an injury to any one. There was no proof or contention that, while the bus was at these various times moving back into the depression, passengers were alighting from the bus. There was no proof or attempt to prove whether, at such times, the air brakes were or were not applied and there was no fixing of dates so such testimony could have been disproved. The petition did not allege that the accident being inquired into was the result of the bus driver's negligent habit of permitting his bus to roll back into the depression. Such proof of the subsequent occurrences would not show negligence on the part of the defendant at the time of the accident. Permitting the bus to roll back into the depression while no passengers were alighting therefrom would not show, or tend to show, negligence on the part of defendant at a time prior thereto. This evidence was not admissible in chief, therefore, it related to a collateral matter: 'The test as to whether the matter is collateral is whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as a part of his case.'
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