Welp v. Bogy, 27908.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Gantt
• Citation: 8 S.W.2d 599
• Parties: OLLIE WELP v. BERNARD P. BOGY, Appellant.
• Docket Number: No. 27908.,27908.
• Decision Date: 03 July 1928

8 S.W.2d 599

OLLIE WELP v. BERNARD P. BOGY, Appellant.

No. 27908.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller. Judge.

AFFIRMED.

Caulfield & Bartlett for appellant.

(1) Instruction 2 was erroneous, because: It broadened the issue as made by the pleading in that while the petition charged negligence in "failing to exercise reasonable care to keep a watch for persons on the street," this instruction required a verdict for plaintiff if defendant "negligently failed to keep a reasonably vigilant watch for persons on the street." McKenzie v. Randolph, 257 S.W. 126; Smith v. Railroad, 126 Mo. App. 120; Heinzle v. Railway, 182 Mo. 528. It imposed upon the defendant the duty of exercising a higher degree of care than the law required of him at the time of this accident, in that it required him to "keep a reasonably vigilant watch for persons on the street," while the law required him to exercise only ordinary care to keep a watch for persons on the street. Grossman v. Wells, 282 S.W. 714; Laws 1917, p. 413, sec. 11; State ex rel. Vogt v. Reynolds, 295 Mo. 375; Kaemerer v. Wells, 252 S.W. 732; Huddy, Automobiles, sec. 339; Berry. Automobiles, secs. 153, 301; Theobald v. Transit Co., 191 Mo. 439. (2) The defendant did not have a fair trial, because of the grave misconduct of plaintiff's counsel. (3) It was error and an abuse of discretion, for the court to permit, over defendant's objections, the examination of the witnesses Masterson, Lancaster and Bogy, as to what efforts had been made to secure the attendance of the witness Lancaster, she being present under defendant's subpoena, such examination being apparently irrelevant and presumably incompetent, and there being no statement or showing of how it would be made competent. Jones, Evidence, sec. 813; Brown v. Carson, 132 Mo. App. 378. And this error was not cured by the belated action of the court at the close of the whole case in sustaining defendant's motion to strike out this irrelevant and prejudicial testimony. Jones, Evidence, sec. 813; State v. Bateman, 198 Mo. 212; State v. Thomas, 99 Mo. 235; State v. Minor, 193 Mo. 597; O'Hara v. Construction Co., 197 S.W. 165; Collier v. City of Shelbyville, 219 S.W. 713. (4) The amount of the verdict is excessive; it is so excessive as to evince bias, passion and prejudice on the part of the jury. (a) The courts of last resort in this State have frequently condemned awards much less extravagant, in view of the injuries sustained, than the award in this case. Nicholas v. Plate Glass Co., 126 Mo. 55; Burdict v. Railroad, 123 Mo. 236; Harris v. Street Ry., 168 Mo. App. 340; Aaron v. Railway Co., 159 Mo. App. 307; Dominick v. Coal & Mining Co., 255 Mo. 466; Applegate v. Railroad, 252 Mo. 201; Welborn v. Street Railway, 170 Mo. App. 354; Jewell v. Bolt & Nut Co., 245 Mo. 726; Dent v. Traction Co., 145 Mo. App. 72; Zeiler v. Railroad, 153 Mo. App. 620; Johnson v. Brick & Coal Co., 205 S.W. 543; Patashnick v. Wells, 273 S.W. 777; Powell v. Ry. Co., 226 S.W. 916; Holland v. Mo. Pac. Ry. Co., 257 S.W. 202. (b) In cases of large verdicts, our courts have always looked closely to incidents of the trial, not arising, maybe, to the dignity of reversible error, but naturally registering results in swollen damages. Bragg v. Met. St. Ry. Co., 192 Mo. 365; Wojtylak v. Coal Co., 188 Mo. 285; Applegate v. Railroad, 252 Mo. 201.

Brackman, Hausner & Versen for respondent.

(1) Instruction 2 did not broaden the issues. It was predicated on the character of "watch" required to be kept under the common law in a built-up business district where three important streets converge with a double-track street car line running on, into or through all streets, and where there was much traffic from five directions. The instruction required the jury to find that defendant "negligently failed to keep a reasonable vigilant watch;" whereas the common law required him to keep a "vigilant watch ahead," and the statute required him to see the plaintiff. The instruction requiring of defendant that he keep a "reasonably vigilant watch," instead of an unqualified "vigilant watch," or to "see" plaintiff, was more favorable to the defendant than the law required, instead of imposing a higher duty on him. State ex rel. Vogt v. Reynolds, 244 S.W. 932; Ostermeier v. Implement Co., 255 Mo. 128; McFern v. Gardner, 121 Mo. App. 1; Bongner v. Ziegenhein, 165 Mo. App. 328. (2) There is no assignment in the motion for new trial that plaintiff's counsel was guilty of "grave misconduct" in asking irrelevant, prejudicial questions of witnesses, which injected incurable "poison" in the minds of the jury. The precise error complained of must be "pointedly" set out in the motion for new trial, before this court will consider same. Sec. 1267, R.S. 1919; Bouillon v. Gas Light Co., 165 Mo. App. 320; State v. Scott, 214 Mo. 257; Carver v. Thornhill, 53 Mo. 283; Stone v. Wolfskill Bros., 59 Mo. App. 441; Sweet v. Maupin, 65 Mo. 65; Lynch v. Railroad, 208 Mo. 44; Polski v. St. Louis, 264 Mo. 458. (3) The failure of a party to produce a friendly witness having direct knowledge of material facts, at the trial, so that the jury may see the witness and hear his testimony and the opposite party cross-examine him before the jury, and thereby have opportunity to determine the credibility of the witness, raises a presumption that the "defense is not made in good faith," as well as that the testimony of the witness would be unfavorable to him. Any effort to explain such failure to produce such friendly witness is subject to the same rules of evidence and of cross-examination as other evidence in the case and is for the jury, and is in no sense privileged, as appears to be claimed. Bryant v. Lazarus, 235 Mo. 606; Willitts v. Railroad, 221 S.W. 66; McCord v. Schaff, 279 Mo. 558; State ex rel. Shawhan v. Ellison, 200 S.W. 1044. (4) The verdict was not excessive. The verdict was for less than one-third the amount the jury could have given her under the pleadings and instructions, and the amount does not show the jury was biased and prejudiced in any way. Hurst v. Railway, 219 S.W. 568; Lane v. Railway, 228 S.W. 870; Varley v. Taxicab Co., 240 S.W. 228; Rigley v. Prior, 323 S.W. 832.

GANTT, J.

This is a suit for personal injuries, alleged to be the result of plaintiff having been struck by defendant's automobile. Verdict was for $7915.66, judgment accordingly, and defendant appealed.

The case has been in the Court of Appeals, and we shall appropriate, in part, the statement of facts as given in the opinion of that court (277 S.W. 601), as follows:

"This accident occurred at the intersection of Prairie, Cass and Easton avenues, in the city of St. Louis, on January 20, 1921, between 8:30 and nine o'clock P.M. Easton Avenue runs northwesterly and Cass Avenue westwardly, while Prairie runs north and south. Easton and Cass avenues intersect, forming a wedge, the point of which is about 150 feet cast of Prairie.

"Plaintiff's evidence tended to show that she and Mrs. Edith Fontana were waiting to board a westbound Wellston car. They were standing at the usual stopping place for westbound cars, such point being in the middle of Easton Avenue and opposite a yellow post which was on the south side of the street and twenty-five feet east of Prairie Avenue. Having observed a westbound car approaching, Mrs. Fontana stepped to one side and motioned for it to stop, at which time plaintiff was struck and did not regain consciousness until after she was removed to the hospital. Plaintiff herself had been looking continually toward the east and did not know what struck her, but her witnesses disclosed that an eastbound automobile (which later proved to be that of defendant), coming from the west on Easton on the eastbound car track and running at a speed of thirty-five or forty miles an hour, turned to the left towards Cass Avenue as it crossed Prairie and struck the plaintiff. This machine was stopped at a point twenty-five feet north of the westbound car track, and twenty-five or forty feet west of the point of the wedge made by the intersection of Cass and Easton avenues. Shortly thereafter the westbound street car came up to the corner and was also stopped. A crowd of people gathered around the automobile, and six or eight men lifted the rear and so that plaintiff, who was lying under the rear axle, might be extracted. There was considerable difficulty in getting her out, because her hair was twisted around the gearings.

"The plaintiff and her companion were standing in such a position that the light from a soft drink parlor on the northwest corner of Easton and Prairie avenues shown upon them. Because of the curve in the track, the headlight of the approaching Wellston car did not strike them. The lights of defendant's automobile were burning."

Defendant and his witnesses denied that his car struck plaintiff; that she was underneath his car, or that his car was lifted off of her body. Other facts may be noted.

I. Defendant contends that we should consider a statement of the plaintiff, in writing, made to the United Railways Company, with reference to an injury to plaintiff incident to a collision on April 6, 1926, between an automobile in which she was riding and a street car. Defendant filed a motion, with a Paper copy of the statement attached, in this court, Stricken praying a consideration of the statement as from Files. newly-discovered evidence. On motion of plaintiff said motion and statement were stricken from the files. This order stands, and the statement cannot be considered on this review.

II. The case was submitted on the charges of a violation of a speed ordinance, and that defendant negligently failed to exercise reasonable care to keep a watch for persons on the street waiting for a street car.

Plaintiff's Instruction No. 2 is as follows:

"The court instructs the jury that if you find and...