Wellman v. Wehmeyer

• Decision Date: 03 March 1998
• Docket Number: No. 71625,71625
• Citation: Wellman v. Wehmeyer, 965 S.W.2d 348 (Mo. App. 1998)
• Parties: John E.J. WELLMAN and Lois Wellman, Plaintiffs/Appellants, v. Alvin J. WEHMEYER, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 348

965 S.W.2d 348

John E.J. WELLMAN and Lois Wellman, Plaintiffs/Appellants, v. Alvin J. WEHMEYER, Defendant/Respondent.

No. 71625.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 3, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 29, 1997.

Application for Transfer Denied

May 26, 1998.

David M. Duree, St. Louis, for plaintiffs/appellants.

Robbye Hill Toft, St. Louis, for defendant/respondent.

CRAHAN, Chief Judge.

Plaintiff John Wellman ("Pedestrian") and his wife Lois appeal the judgment entered on a jury verdict returned in favor of Defendant ("Driver") in Pedestrian's suit for negligence arising out of an automobile accident.

Early in the morning of December 13, 1994, Pedestrian left his home to walk to the bus stop. He walked approximately five blocks to the intersection of Big Bend Road and East Glenwood where he intended to cross the street to the bus stop on the opposite side of Big Bend. Big Bend runs east and west with two lanes of traffic traveling in each direction. Pedestrian was on the north side of Big Bend and the bus stop was on the south side. As he crossed Big Bend, Pedestrian stopped to allow some eastbound traffic, which traveled on the south half of Big Bend, to pass. Pedestrian claimed he stopped near the double yellow line which divided the eastbound lanes from the westbound lanes. Michael Maruska ("Witness") was driving east on Big Bend and observed Pedestrian. He claimed Pedestrian stopped in the center of the inner westbound lane on Big Bend. While Pedestrian was waiting for eastbound traffic to pass, Driver struck him while driving in the inner westbound lane of Big Bend.

The jury returned a verdict in favor of Driver, assessing one hundred percent of fault to Pedestrian. This appeal followed.

In his first point, Pedestrian claims the trial court erred in admitting certain photographs of the accident site because they did not accurately show how the accident scene appeared on the morning of the accident.

The admission of photographs, being within the discretion of the trial court, will not be disturbed on appeal absent an abuse of discretion. State ex rel. Missouri Hwy. and Transp. Com'n v. Vitt, 785 S.W.2d 708, 712 (Mo.App.1990); see also Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). That a photograph of a location was taken before or after an event and before or after changes occurred does not render it inadmissible if the extent of the changes is explained. Vitt, 785 S.W.2d at 712; see also Matthews v. City of Farmington, 828 S.W.2d 693, 697-98 (Mo.App.1992) (photographs of accident scene admissible although relation of trees and power lines had changed when such changes were discussed); Hritz by Hritz v. Slawin, 706 S.W.2d 296, 297 (Mo.App.1986) (photographs of accident scene admissible although car pictured differed from that involved in accident and that and other discrepancies were explained).

In the present case, Pedestrian complains that the accident scene photographs were taken three hours earlier in the morning than when the accident took place and that the photographs did not include headlight illumination. The photographer, who had personally observed the light conditions at the scene exactly one year after the accident, testified that the only difference in the light between 6:30 a.m. and 3:30 a.m. on the date in question might have been the view to the east, where dawn's early light may have been visible. He further testified that this did not influence the amount of light falling on any subject matter or the pavement. Furthermore, this possible difference between the amount of available light, as well as the absence of headlights, was fully explained to the jury. The trial court carefully scrutinized all of the available photographic evidence and excluded much of it on the ground that the potential prejudice outweighed its probative value. The trial court concluded, however, that the photographs that were admitted could help the jury gain a fundamental understanding of Driver's perspective of the accident scene despite their differences from the scene as it actually appeared to him. We find no abuse of discretion. Point denied.

In his second point, Pedestrian objects to various passages of the testimony given by Driver's expert witness ("Expert"). Expert discussed his background and training which established his expertise in accident investigation. Pedestrian acknowledged Expert's ability to discuss the general physical properties affecting the accident. Pedestrian claims that various portions of Expert's testimony were factual statements rather than general expert knowledge and that Expert discussed factual scenarios which were contradicted by the undisputed facts of the case. The decision whether to admit or exclude expert testimony is within the discretion of the trial court and will be overturned only if that discretion has been manifestly abused. Inman v. Bi-State Development Agency, 849 S.W.2d 681, 683 (Mo.App.1993).

At the outset, we note that Pedestrian has improperly attempted to present what are really a number of discrete claims of error in a single point relied on in violation of Rule 84.04. Biever v. Williams, 755 S.W.2d 291, 293 (Mo.App.1988); Carroll's Warehouse Paint Stores, Inc. v. Rainbow Coatings Corporation, 835 S.W.2d 531, 532 (Mo.App.1992). Nevertheless, in the exercise of our discretion, we will do our best to review them.

Pedestrian complains that the trial court improperly allowed Driver's expert to offer evidence that Driver was unable to see Pedestrian because of the glare from the headlights from oncoming traffic. Pedestrian urges that such testimony was impermissibly at odds with Driver's testimony that he did not notice any oncoming, eastbound automobiles. Pedestrian also urges that it was improper for Driver's expert to testify about the habit of pedestrians to cross a road one lane at a time. Pedestrian claims that his testimony was impermissibly at odds with Driver's testimony that he did not see Pedestrian until he was stationary in Driver's lane immediately prior to impact.

Pedestrian's contentions misconstrue the purpose of expert's testimony, which was offered on the subject of causation, not what Driver did or didn't see. To make a submissible case for failure to keep a careful lookout, substantial evidence, not speculative deductions, must show that the driver had sufficient time and distance, considering the movements and speed of the vehicle, to take effective action to avoid a collision. American Family Mut. Ins. Co. v. Robbins, 945 S.W.2d 52, 55 (Mo.App.1997). A duty to take such evasive action does not arise until the driver knows or should know of the likelihood that the plaintiff will be in a position of danger if such action is not taken. Id.

In this case, both Pedestrian and Witness testified that there were, in fact, a number of vehicles traveling in an eastbound direction with their headlights on at the time of the accident. The fact that Driver did not notice them is evidence that he was either inattentive or was looking somewhere other than directly ahead as he proceeded in a westbound direction in the inner westbound lane. This does not, however, establish that Driver's failure to keep a careful lookout was the cause of the accident. In order to establish whether Driver's inattentiveness was the cause of the accident, the jury was required to determine whether, if Driver had properly been paying attention, he would have seen Pedestrian and should have recognized the danger to him in time to take evasive action to avoid the collision. This was the issue addressed by Expert's testimony.

Expert did not attempt to prove that Driver was, in fact, blinded by the glare from oncoming headlights. From the record before us, it cannot be determined whether Driver was looking somewhere other than ahead of his vehicle, or had allowed his mind to wander, or even had his eyes closed. The point of Expert's testimony was that, if Driver had been looking ahead of his vehicle as the law requires, his ability to see Pedestrian would have been impaired by the glare of oncoming lights. ¹ Further, although Driver did not actually see Pedestrian until just before impact, it was relevant for the jury to consider whether, if Driver had seen Pedestrian walk into the outside lane and pause before entering his lane, he should have anticipated that Pedestrian was going to proceed into his lane and stop there. Witness's testimony that Pedestrian had indeed proceeded in that manner provided the evidentiary basis for Expert's opinion on that topic. Thus, Expert's opinion was relevant and admissible on the issue of when, if Driver had been keeping a careful lookout, he should have realized the danger to Pedestrian in time to have taken evasive action. If, due to the glare and experiential factors cited by Expert, Driver, although keeping a careful lookout, would not have perceived the danger to Pedestrian in time to have taken evasive action to avoid the accident, his failure to keep a careful lookout cannot be said to have been the cause of the accident. We find no error in the admission of Expert's testimony on these subjects.

In a somewhat different complaint asserted under this point, Pedestrian urges that Expert was improperly allowed to testify as to differences in perception of eastbound and westbound drivers due to the existence of shadows. From our reading of the evidence, this testimony was based on Driver's Exhibit B, which we have previously held was properly admitted into evidence. Further, Expert testified that he was highly familiar with the location of the accident, having lived in the area and traveled through the intersection on a frequent basis. An expert witness is allowed to testify "upon matters within his personal knowledge or observation, upon competent guidance in the case, or upon both." See State ex rel. Division of Family Services v....