Williams v. Ricklemann, 44951

Citation292 S.W.2d 276
Decision Date09 July 1956
Docket NumberNo. 44951,No. 2,44951,2
PartiesRuth Ann WILLIAMS, by Loraine Williams, Her Next Friend, Appellant, v. Henry H. RICKLEMANN, Respondent
CourtUnited States State Supreme Court of Missouri

Thomas & Busse and Cullen & Godfrey, St. Louis, for appellant.

Kerth, Thies & Schreiber, Clayton, for respondent.

STORCKMAN, Judge.

The plaintiff, a schoolgirl nine years old at the time of the accident, brought this action by her mother as next friend for damages in the sum of $25,000 for personal injuries sustained by her as a result of being struck by an automobile operated by the defendant. The case was submitted upon the humanitarian doctrine and the jury's verdict was in favor of the defendant. The plaintiff has appealed.

The accident occurred on Florissant Road near Brotherton Lane in St. Louis County. At the place in question Florissant Road runs generally in an east and west direction. Brotherton Lane runs into Florissant from the south and Woodstock Avenue from the north, slightly to the east of Brotherton. Both Brotherton and Woodstock end at their junctions with Florissant and do not extend beyond.

Shortly after 7 o'clock a. m. on September 23, 1952, plaintiff's parents, on their way to work in St. Louis, let the plaintiff and her eight year old sister out of their automobile at the southeast corner of Florissant Road and Brotherton Lane. The children were on their way to school and expected to cross Florissant Road from the south to the north side and catch a school bus at the corner of Florissant and Woodstock. While she was attempting to cross Florissant Road plaintiff was struck by defendant's eastbound automobile and severely injured.

The case was submitted to the jury upon humanitarian negligence in failing to slacken the speed of defendant's automobile or to swerve and change its course. Plaintiff's motion for a new trial was overruled 'on the grounds that plaintiff's evidence failed to make a submissible case and the Court erred in overruling * * * defendant's motion for directed verdict in favor of defendant.'

Plaintiff alleges that the trial court committed error in refusing to give her Instruction A which was designed to submit the question of whether defendant was also negligent in failing to give a timely warning and also that the court erred in sustaining defendant's objection to plaintiff's counsel's comment in closing argument on the failure of the defendant and his wife to testify and in ruling and instructing the jury that they were equally available to counsel on both sides and that no inference could be drawn from their failure to testify. Defendant contends that the plaintiff did not make a submissible case and therefore the judgment should be affirmed in any event. We will first consider whether plaintiff made a case for the jury.

In substance, the evidence showed that the defendant and his wife were driving east on Florissant Road. Following behind them at a distance of about 75 feet were Edward Thomas Neely, Jr. and Earl Louis Aubuchon riding in the front seat of Aubuchon's car. At the place in question Florissant Road is 45 feet wide and there is space for four traffic lanes, two for westbound and two for eastbound traffic. Neely testified that the car in which he was riding was in the eastbound lane nearest the middle of Florissant Road and defendant's car was immedicately ahead in the same traffic lane traveling in a straight line. He estimated that both cars were traveling about 25 miles an hour. It was a clear day and the streets were dry. An eastbound motor bus had stopped on Florissant just west of Brotherton with its right wheels on the shoulder and the laft wheels about three or four feet onto the pavement. When the front of defendant's car was about even with the front of the bus, Neely got a fleeting glimpse of the child as she ran from the shoulder on the south side out onto the street. The view he had of her was in the space between the standing bus and defendant's car; then he saw her books and the package she was carrying flying into the air. Neely did not notice any diminishing of the speed of defendant's car prior to the accident and it did not appear to swerve or change its course. Neely testified that after the accident plaintiff was lying at about the center line of Florissant Road. He did not know how many feet east of the front of the bus in child's body was, but he did not think it was entirely east of the intersection.

Aubuchon's testimony was substantially the same as Neely's. He testified that after the accident the plaintiff's body was lying in about the center of Florissant Road about even with the western line of Woodstock Avenue.

Mrs. Lonnie Williams, mother of the plaintiff, testified that she and her husband let the children out of their automobile near a telephone pole on the south side of Florissant east of Brotherton Lane. They would have to cross Florissant Road from south to north to get their school bus at the corner of Woodstock.

The plaintiff's sister, Shirley, ten years old at the time of trial, testified that her mother let her and her sister off at the telephone pole and they stood there and waited to get across the street. A bus driver motioned for them to go across and the plaintiff, Ruth Ann, went ahead of her. She did not recall whether Ruth Ann was walking, but denied making a statement that she tried to keep her sister from running out into the street but that her sister would not listen to her. Shirley did not see the defendant's automobile before the accident.

The plaintiff, Ruth Ann, was sworn but could hardly remember anything about the accident. She did not see the automobile that struck her and did not hear any automobile horn sounded.

Admissions against interest from defendant's deposition taken August 4, 1954, were introduced in evidence to the effect that the defendant had had his brakes checked on the Saturday before the accident and that his automobile was in good condition; that about three or four feet of the stopped bus was on the traveled portion of the road at the southwest corner of Florissant and Brotherton; that the plaintiff, when he first saw her, was about three or four feet onto the pavement and running, and was at least 40 to 50 feet east of the bus; that the front of his automobile was 20 to 25 feet from her; that his automobile was traveling between 20 and 25 miles per hour; that he could stop his automobile in approximately 40 feet traveling at 20 miles per hour and in 50 feet at 25 miles per hour; that he had clear vision and there were no trees, bushes or anything else obstructing his view when he first saw the girl; that he put on his brakes and swerved about two feet to the right, but he did not sound his horn because he did not have time; that the plaintiff got across in front of him and then turned around and came back; that she was facing towards his car at the time she was hit and she ran against the side of the left front fender.

In determining whether a case was made for the jury on the question of defendant's liability, we must consider the evidence in the light most favorable to the plaintiff and give her the benefit of every reasonable inference which the evidence tends to support.

Defendant contends that the admissions against interest from defendant's deposition 'offered by the plaintiff and otherwise unrefuted by the plaintiff, is binding upon the plaintiff.' The plaintiff did not offer the entire deposition; defendant was permitted, however, to read additional portions over plaintiff's objection. The rule is well established that estimates of the time, speed or distance or the position of an automobile or train at the time of an accident are not conclusively binding on a party and do not preclude him from relying upon more favorable testimony of other witnesses unless the testimony of the other witnesses is inconistent with his theory of the case or contrary to physical facts. Smith v. Siercks, Mo., 277 S.W.2d 521, 525; Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, 674; Dennis v. Wood, 357 Mo. 886, 211 S.W.2d 470, 474.

To whatever extent there are other facts and circumstances in evidence from which the jury could draw an inference contrary to the defendant's version of the facts, then to such extent the plaintiff was not bound by the defendant's statements unfavorable to her case, and she is left free to claim the full benefit of all contrary inferences. Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123, 126.

The plaintiff may have the benefit of the favorable portion of defendant's testimony and may use it in combination with other favorable evidence in the case since 'the jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case.' Hutchison v. Thompson, Mo., 175 S.W.2d 903, 911[9, 10].

Giving effect to these rules, the jury could reasonably find from the evidence that the defendant was driving his automobile at a speed of 20 miles per hour in the eastbound lane of Florissant Road nearest the center of the street and traveling at this speed he could safely stop within a distance of approximately 40 feet. The jury could also justifiably find that the plaintiff had started running across the street when the front of defendant's automobile was about even with the front of the parked motor bus, and...

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