White v. Mo. Motors Distributing Co.

• Decision Date: 01 February 1932
• Docket Number: No. 17393.,17393.
• Citation: 47 S.W.2d 245
• Parties: ROBERTA HILL WHITE, RESPONDENT, v. MISSOURI MOTORS DISTRIBUTING COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

47 S.W.2d 245

ROBERTA HILL WHITE, RESPONDENT, v. MISSOURI MOTORS DISTRIBUTING COMPANY, APPELLANT.

No. 17393.

Kansas City Court of Appeals. Missouri.

February 1, 1932.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED.

E.E. Thompson, Charles N. Sadler and I.F. Bradley for respondent.

McCune, Caldwell & Downing for appellant.

BLAND, J.

This is an action to recover for the death of plaintiff's husband, alleged to have been caused by the negligence of defendant. There was a verdict and judgment in favor of plaintiff in the sum of $7500 and defendant has appealed.

The facts show that defendant is engaged in the transportation of freight by truck between the cities of St. Louis and Kansas City. Deceased was killed a few miles east of Columbia about 1:30 A.M. of July 7, 1929. He was driving an automobile eastwardly on highway No. 40, when if came into collision with one of defendant's trucks proceeding in the opposite direction on said highway. The truck in question was being driven by an employee of defendant, one Alexander. The truck and the automobile each had two headlights burning. The highway at the place of the collision is straight for some distance in both directions. It is paved with concrete eighteen feet in width. There are dirt shoulders on each side of the pavement. There is a black line running along the center of the pavement. Deceased was seated on the left side of the car which he was driving and to his right, in the same seat, was located his father and in the rear seat, two women and a child. The driver of the automobile and one woman were killed outright and the other two adult occupants of the automobile were injured.

Deceased's father testified that he first saw the truck approaching when it was a long city block, or about 600 feet, ahead; that the truck at that time was apparently on its proper side of the road or the north side of the black line: that he did not see the truck turn or cross the line but that the car in which the witness was riding was at all times on its own side of the road or the south side of the line; that the truck struck the automobile in "front of the front seat ... and left side" of the automobile.

Plaintiff's witness, Eva Wilson, testified that she was in the rear seat of the automobile and that she first saw the truck when it was about a quarter of a mile away; that at this time both wheels of the truck were over on the wrong or the south side of the black line; that the truck continued in that position until the collision; that when she first saw the truck the car in which she was riding was proceeding at the rate of about forty miles an hour; that when the two vehicles were about forty feet apart the driver of the automobile turned off of the pavement; that all four wheels of the automobile were on the dirt shoulder at the time it was struck by the truck.

Plaintiff introduced other witnesses who did not see the collision but who, a short time thereafter, examined marks made upon the pavement by the tires. These witnesses testified to the effect that the wheels of the truck crossed the center or black line about twenty feet east of the point of the collision. The evidence on both sides tends to show that after the collision the truck was standing on the south side of the road with the left front corner thereof embedded in a clay bank and that the automobile was stationed on the south side of the pavement and ninety to 100 feet east of the truck.

Alexander, the driver of the truck, who testified for the defendant, stated that he first saw the automobile approaching when it was about 200 or 300 feet from him; that at that time he was proceeding at about the rate of twenty-five miles per hour; that he started to slow down the truck and at the time of the collision he was going at the rate of about fifteen miles per hour; that proceeding at the rate of twenty-five miles per hour the truck could have been stopped within fifteen to thirty feet; that he, at all times, was on his, or the north side, of the black line; that when he first saw the automobile "it was astraddle the black line, and it went a little then to the left and then to the right and then hit me;" that at the time of the collision he was "as far to the right (going west) on the slab as could be;" that the automobile struck the truck on the latter's left side near the front; that at that time be lost control of the truck and it ran off to the south of the pavement into the bank; that in addition to the two headlights there were two green lights and a lighted sign on the truck; that when the automobile struck the truck the former was headed in a northeasterly direction; that at the time the automobile turned toward the north the last time it was about four feet from the truck; that it ran about two feet over the line in a northeasterly direction before it struck; that the automobile was traveling "at a high rate of speed;" that after the collision both vehicles were on the south side of the line.

The evidence show that the truck was about fifteen feet in length and approximately seven feet wide. There was evidence tending to show that the automobile which deceased was driving was going at a rate of from forty to fifty miles per hour shortly before the collision. There was other testimony on the part of the defendant that the automobile came toward the truck "zig-zagging" in the highway. The driver of another truck of defendant, which was a little ahead of the one in the collision, testified that when he passed the automobile it was partly over on the north side of the black line.

Defendant insists that the court erred in permitting plaintiff, on cross-examination of defendant's witness. Alexander, to show that he had been discharged by defendant and that he had not been in any accident between the time of the one in question and the time of his discharge. He testified that he had made two or three trips to St. Louis as defendant's driver after the accident in question before he was discharged. He was not asked whether he was discharged on account of having this accident. We think defendant's contention must be sustained. [Hewitt v. Ry., 167 Mass. 483; Webster v. Orr (Calif.), 163 Pac. 361; N.Y.P.M.S. & H. v. Mason et al., 155 N.Y.S. 200; Engel v. United Traction Co., 203 N.Y. 321; Buchanan v. Flinn. 51 Pa. Sup. 145; Mahaney v. St. L. & H. Ry. Co., 108 Mo. 191; Schermer v. McMahon, 108 Mo. App. 36; Bujalo v. St. L. Basket & Box Co., 227 S.W. 844.]

However, plaintiff contends that this evidence was brought out on cross-examination and that it was for the purpose of impeaching the witness; that a witness may be asked any question on cross-examination no matter how irrelevant it may be, if it tends to impeach him, except where the answer would expose the witness to a criminal charge. In making this contention plaintiff states:

"If he were fired for having the accident it would surely tend to show one of two things: First, that he reported to his employer a different state of facts than those testified to by him; or the employer, upon making its own investigation, arrived at the conclusion that its driver was at fault."

It would have been competent, for impeachment purposes, for plaintiff to have brought out that Alexander reported to the defendant a contradictory state of facts to those he testified to, but it would not tend to impeach the witness to show that defendant, upon making its own investigation, arrived at the conclusion that Alexander was at fault. There was no attempt made to show that Alexander made a report to the defendant or one containing a different state of facts than testified to by him. The fact that he was discharged does not tend to show that he made such a report, but such would be left to mere speculation.

However, it is said that the evidence shows that Alexander made two or three trips before he was discharged, and this, together with the further fact that he had no further accident, "would tend to show that he was fired for some reason other" than having the accident in question. This contention is wholly inconsistent with plaintiff's theory at the trial in eliciting this objectionable testimony and we think there is nothing in the point. The evidence was plainly introduced for the purpose of having the jury infer that Alexander was discharged on account of having the accident in question.

If is contended that because defendant had already shown that Alexander was no longer in its employ, that it first injected into the case the matter of his being out of the employ of the defendant, and that this warranted plaintiff in going into the whole situation upon cross-examination. The testimony of Alexander was by deposition and defendant now claims the reason it showed he was no longer in its employ "was to lay the foundation for use of the deposition at the trial against possible objection that defendant could have the witness there in person." At the very start of the deposition it was brought out by defendant that Alexander was leaving Kansas City where he resided when the deposition was taken and, so far as he knew, he would not return. Just why he was asked by defendant, in the middle of his deposition, if he was no longer in its employ, is not clear, but assuming that it was for the purpose of showing that he was a disinterested witness, this would not justify the plaintiff in showing that he was discharged. The matter of his discharge could not be said to have been injected into the case by defendant by the mere showing by it that Alexander was no longer in its employ. Plaintiff no doubt could have attempted to bring out that Alexander was still in defendant's employ, or could have asked the witness questions to show that there was some other friendly relationship between the two, in order to counteract the inference of disinterestedness on the part of the witness, but a showing that the witness was...