Opinion
No. 43028.
March 9, 1953. Rehearing Denied April 13, 1953.
APPEAL FROM THE CIRCUIT COURT, CALLAWAY COUNTY, W. M. DINWIDDIE, J.
Sapp Bear, William H. Sapp and David V. Bear, Columbia, for appellant.
Boyle G. Clark, William H. Becker and Scott O. Wright, Columbia, for respondents, Clark Becker, Columbia, of counsel.
Van Anderson, a minor six years of age, hereinafter called plaintiff, has appealed from an adverse judgment based upon a jury's verdict, in an action wherein plaintiff has sued for $10,000 damages for alleged personal injuries claimed to have resulted from the negligence of the defendants. At the time of the accident the defendant, Harry Ackman, was an employee of defendant, Woodward Implement Company (hereinafter called Woodward) and for his employer had just delivered certain farm machinery by truck to plaintiff's father, Elliott Anderson, at the latter's farm home in Boone County.
Upon this appeal plaintiff contends that the court erred in permitting certain statements by defendants' counsel, and in admitting certain evidence; in the giving and refusal of certain instructions; and in permitting certain cross-examination by defendants' counsel. But, as defendants are here contending that the trial court erred in overruling defendants' motion for a directed verdict at the close of all the evidence, we first consider defendants' contention. Consideration of that question requires a rather full statement of the facts.
It appears from the transcript of the evidence that plaintiff lived with his parents and his nine year old sister at their farm home near Hartsburg; that his grandparents lived directly across the road; that some farm machinery which plaintiff's father had purchased from Woodward was delivered at the Anderson home on September 16, 1950, by Ackman, upon a flat bed truck which was equipped with a winch, drum and half inch steel cable; that the winch and drum were located under the flat deck of the truck near the front; that one end of the cable was fastened to the winch drum which, when rotated, caused the cable to wind upon or unwind from the drum; that the cable ran up through a small slot in the truck bed and over a pulley; that to the end of the cable there was attached a heavy chain and an iron hook; that the winch was connected to and caused to rotate by power from the truck engine; that a lever on the floor of the truck cab placed the winch in gear, and had "wind," "unwind" and "neutral" positions; that the winch could also be stopped by turning off the motor ignition key or disengaging the truck engine by means of the clutch pedal; that the winch would up or unwound the cable at a speed of only six feet per minute;
It further appears that the farm machinery was unloaded from the truck some 80 feet behind plaintiff's home by Ackman and plaintiff's father, by using two skid boards from the truck to the ground as ramps; and the winch and cable let the machinery slowly down to the ground. After it was unloaded the cable, chain and hook extended out about 15 feet beyond the back end of the truck and lay in weeds and grass which was 8 to 12 inches tall. The truck bed was about 16 feet long and 3 1/2 feet high. After the unloading, the machinery of the truck, motor, winch, etc., were set in motion by Ackman to wind up the cable on the winch. The plaintiff's father, who had assisted in the unloading, then started walking toward his home. As the latter was entering his yard Ackman called to plaintiff's father, saying, "I've got the (tractor) operator's manual for you" and "he (Ackman) was just kinda trotting toward me" from the direction of the truck. Ackman was then about 40 feet from the back of the truck; and at that moment plaintiff screamed and both Ackman and plaintiff's father started running back to the truck and to plaintiff. At the time plaintiff screamed both of plaintiff's hands were "caught in the hook at the back of the truck and his feet completely off the ground," and plaintiff's fingers were "in between the inside of the hook and the (metal) bed" of the truck. Ackman ran to the truck cab and reversed the cable direction. Plaintiff's father grabbed the cable and plaintiff. The reversal of the cable direction released the boy and his father immediately took him to a doctor for the injury to his fingers.
Plaintiff did not testify. Plaintiff's mother, who was in the house, and plaintiff's father both testified that their nine year old daughter was in the house and did not go outdoors until after the plaintiff had screamed. Plaintiff's father testified that until the plaintiff screamed he did not know plaintiff was out there at all; that he had not seen or heard plaintiff "in that area" from the time the truck drove up until he heard plaintiff scream; that prior to the accident he had not said anything to Ackman about looking out for the children; and that he did not think plaintiff had "ever seen anything like that (winch and cable) before," but that plaintiff "is the average six-year old boy in intellect and experience."
Plaintiff's grandfather testified that he was working on a fence 41 steps from where the accident occurred, and his attention was first attracted when he heard plaintiff scream; that prior to hearing the scream he had not seen plaintiff "in the vicinity of the truck" although he was in a position to see who was around or near the truck; and that he first saw plaintiff "hanging to the back of the truck * * * and his feet was off the ground. * * * I don't know what was holding him there."
The defendant Ackman (called by defendants) testified that he and plaintiff's father unloaded the machinery from the truck bed to the ground; that after it was unloaded he (Ackman) entered the truck cab and started the machinery winding in the cable; that he left the cab and then got onto the truck bed and plaintiff's father was then on the ground, at the left side of the truck; and he (Ackman) then saw plaintiff back of the truck; that plaintiff picked up the cable as it was being reeled in and pulled back on it; that plaintiff's father was then 8 or 10 feet away; that Ackman told plaintiff that he would get "splinters in his hand off this steel cable"; that plaintiff "let the cable go and just picked up the hook"; that plaintiff's nine year old sister was there by plaintiff; that plaintiff's father then "told the little girl to help him (plaintiff) hold that cable, the chain or hook part"; that he (Ackman) was "squatted down on the corner of the bed" talking to plaintiff's father "and that is when I heard this little boy scream and I looked back and he had his hand between the hook and the back end of the bed."
Ackman further testified: "Q. Tell me whether or not you had paid any further attention to the children after the time when you told him to let loose of the rope in the presence of his father? A. No, they were just both back there holding to it and I never said no more to them. I figured that it wasn't my place to say too much more to them. Q. I will ask you to state whether at all times, up until the boy's hand became caught, whether his father was standing in the vicinity of the truck? A. Yes, sir, he was close by the truck." Plaintiff's father and plaintiff's grandfather (E. V. Anderson) and the defendant Ackman were the only three persons who testified they were near or present or that they knew anything at all about how the accident occurred. The testimony of plaintiff's father and grandfather, called as witnesses by plaintiff, is in the above noted respects in conflict with that of defendant Ackman.
We now consider defendants' contention that the court erroneously refused to sustain their motion for a directed verdict made at the close of all the evidence. Defendants seek to invoke the rule that while plaintiff may have the benefit of any evidence offered by defendants which tends to support plaintiff's theory of recovery, that plaintiff may not have the benefit of any of defendants' evidence which is at war with plaintiff's theory of recovery. Trower v. Missouri Kan Tex. R. Co., 347 Mo. 900, 149 S.W.2d 792, 796. Defendants specifically contend that plaintiff may not have the benefit of Ackman's testimony that Ackman saw and knew plaintiff was present and that plaintiff was holding the cable and hook as the cable was being wound up onto the winch; and that Ackman, so knowing, failed to stop the machinery. Defendants assert that Ackman's testimony "is in conflict with his (plaintiff's) own theory of the case." Plaintiff's basic theory of his case as pleaded in the petition and submitted to the jury was that defendants were negligent in failing to keep a vigilant outlook for plaintiff, who was in reach of the cable and hook, and that defendants failed to stop the movement of the cable when Ackman saw plaintiff in contact with the cable and hook. Plaintiff's theory of the case is not that plaintiff was not caught in the hook and drawn against the back of the truck and injured. Of necessity plaintiff had to be within 15 feet of the truck to take hold of the cable or hook. All the evidence in the case is that plaintiff was caught in the hook and that he was injured.
The testimony of plaintiff's father and grandfather was that they did not see plaintiff out there and did not know plaintiff was there "in that area" around or near the truck until they heard plaintiff scream. That testimony sharply conflicted with Ackman's testimony that both the little boy and the little girl were out there, and the plaintiff's father told the little girl to help plaintiff hold the cable. The conflicts of the testimony were for the jury. And the jury resolved the conflicts of the testimony. The mere conflict in the testimony as above noted cannot deprive plaintiff of the benefit of the above set out portion of Ackman's affirmative testimony that Ackman actually saw plaintiff pick up the cable and the hook while it was being reeled onto the winch; and that thereafter Ackman paid no further attention to plaintiff and did not stop the movement of the cable after Ackman had told this six year old to let loose of the cable. It may be conceded that the testimony presents some conflicts in the above noted respects, but Ackman's testimony is not at war with plaintiff's theory of his case. And in considering whether a case was made for the jury plaintiff is entitled to all the testimony favorable to his theory and to all the favorable inferences to be drawn therefrom.
In further support of their above contention defendants argue that, in any event, Ackman's negligence was not the proximate cause of plaintiff's injury because the occurrence was not one which could have reasonably been anticipated as a sequence of the negligence. But it is before us that Ackman, in charge of this machinery and the winding in of the cable on the winch, was on the bed of this truck and saw this six year old child pick up this cable; that Ackman thereupon recognizing the possibility of danger and that plaintiff might get splinters in his hand, warned him to let loose; that Ackman then saw plaintiff pick up the steel hook that was being drawn toward the metal beam across the rear end of the truck bed but failed to stop the machinery drawing in the cable. From the facts and circumstances of record here the jury could reasonably have found that the negligence alleged and proved was the proximate cause of the injuries sustained by plaintiff. Therefore it follows from the above that the court did not err in refusing to sustain the motion for a directed verdict offered at the close of all the evidence. The above noted contention of defendants that the plaintiff's case was not one for the jury is without merit.
We come now to plaintiff's assignments of error. Plaintiff first assigns error that in defendants' opening statement to the jury (page 11 of the transcript) its counsel was permitted to tell the jury that plaintiff's father "had advised (plaintiff) to grasp the cable"; that on cross-examination defendants' counsel asked plaintiff's father if he had so advised plaintiff; and that defendants proved by Ackman that the father had given such advice to the plaintiff. The plaintiff's theory as to this matter seems to be that defendants were thus seeking to and were permitted to impute negligence of the plaintiff's father to the infant plaintiff, and to cause the jury to believe that "plaintiff was under the exclusive control and protection of his father as a matter of law."
As to the matter of defendants' opening statement no objection was made to the statement of defendants' counsel. As to the above complained of incident in the cross-examination of plaintiff's father, the question was not objected to and the witness denied that he had made the statement to plaintiff. And as to the matter of the purported proof by Ackman that the father had given such advice to plaintiff, it appears that Ackman testified that plaintiff's father "told the little girl to help him (plaintiff) hold that cable, the chain or hook part," but no objection was made to the question. These contentions are without merit.
Plaintiff's brief makes a purported assignment of error in these words: "The court erred in admitting evidence of statements alleged to have been made by the father of the plaintiff on the theory that they constituted a part of the res gestae and were verbal acts." In neither plaintiff's "Assignment of Errors and Points and Authorities" nor in his printed "Argument" is there anywhere set out the purported "statements" just above referred to, and there is not a single page reference in the brief to the transcript of the record with respect to it. There is no burden upon us to search the transcript to undertake to find and apply so vague and uncertain a reference in a brief. But we have done so notwithstanding plaintiff's violation of our Rule 1.08. We have found nothing in our reading and search of the transcript which indicates the above quoted purported assignment is well taken. If it be that plaintiff's counsel were again referring to the Ackman testimony as to what plaintiff's father said to his daughter when plaintiff had hold of the cable, we have hereinabove considered and ruled that plaintiff preserved nothing for our review as to that matter. In any event this purported assignment violates our Rule 1.08 and there is nothing in it for us to consider or rule.
It is also contended by plaintiff that the trial court erred in permitting defendants' counsel to cross-examine E. V. Anderson (plaintiff's grandfather) concerning ten or more lawsuits in which E. V. Anderson had been a party. This witness testified that he frequently conferred with plaintiff's attorneys about the preparation and presentation of plaintiff's case in court, attending conferences in the attorneys' offices. On the direct examination of this witness he voluntarily and quite artfully injected the matter of insurance into the case. The witness could not recall having had frequent lawsuits but stated he had served on a jury. At long last he finally admitted he had been a party to a case in court in Call-away County, but denied he was ever a party to any other case in court. Finally defendants' counsel asked the witness: "Q. I am going to give you one more chance and ask you to tell this jury if you didn't state falsely that you had never been a party to a lawsuit or damage suit or any other suit except this suit in Fulton? A. Only as a witness; not a damage suit of my own." He was then asked, without objection, about the case of E. V. Anderson v. John Lacey. He was then asked about the case of Ellen Carrig v. E. V. Anderson, and defendants' counsel had the witness examine in that case a certified copy of the opinion therein by the Supreme Court of Kansas. Defendants' counsel then asked the witness about the case of M. E. Hartman v. E. V. Anderson, et al., and about other cases in the District Court of Wyandotte County, Kansas, certified copies of the proceedings in all of which cases were identified as Exhibits, C, D, E, F, G, H, I, J, K and L, and were handed to the witness for examination to refresh his memory. The trial court sustained five of plaintiff's objections during the course of the cross-examination and offers, and later stated, "I am going to sustain the objection to the further line of examination." The court finally stated "I will let him answer whether or not he was a party." The witness answered that he was a party.
Plaintiff then offered upon re-direct examination to go into each of the various above noted prior suits in which the witness had been a party, and to explain by the witness what those suits were about but the court refused to permit that to be done. Clearly, the case on trial before the court could not include the claimed merits or demerits of the Kansas cases. But, under the instant circumstances, as to whether the witness had been a party to those Kansas cases the trial court had the discretion to allow inquiry.
The purpose of the cross-examination of the witness as stated at the time by counsel for defendants, was to discredit, impeach and affect the credibility of the witness, and by "separate questions show that he had been a party, plaintiff and defendant, to numerous lawsuits in Wyandotte County, Kansas. The only purpose for which we tender the Exhibits to the witness is for the purpose of refreshing his memory. * * * I will agree we would be bound by his answer and could not bring in evidence for the purpose of collateral impeachment."
We have carefully examined the contentions in plaintiff's brief and the cases cited therein, but limitations upon space forbid detailed analyses of them. They do not rule this situation. In Arnold v. Alton Railroad Company, 348 Mo. 516, 154 S.W.2d 58, 60, we said:
"The law is well settled in this state that the admissibility of specific acts tending to impeach or disparage the testimony of a witness is largely within the discretion of the trial court. Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 107; Massman v. Muehelbach [Muehlebach] 231 Mo.App. 72, 95 S.W.2d 808; State ex rel. State Highway Commission v. Hoffman, Mo.App., 132 S.W.2d 27. In the discretion of the trial court, a witness may, for the purpose of impeachment, be asked whether he has committed particular wrongful or immoral acts, subject to his right to refuse to answer incriminating questions, even though such facts or acts may be collateral to the principle controversy. However, the cross-examiner is bound by the witness' answer. Muller v. St. Louis Hospital Ass'n, 5 Mo.App. 390, 401; Id., 73 Mo. 242; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132.
"`There must be a certain discretion left to the court in trying causes, to determine how far they will permit examinations of witnesses to proceed upon collateral matters not directly connected with the issues. We do not see that justice would be promoted by the interference of this court in a mere matter of discretion, because of a difference of opinion with the court below as to the point at which an examination should stop.' Adriance v. Arnot, 31 Mo. 471, loc. cit. 472; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, loc. cit. 111."
We think that in this instance no abuse of the trial court's discretion appears. This cross-examination reflected directly upon the credibility of the witness and shed light upon whether he was worthy of belief. The question of abuse of the trial court's discretion in failing to limit cross-examination is ably discussed and many authorities are cited in Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 649, 157 A.L.R. 598, cited by plaintiff. A contrary conclusion was there reached upon a clearly distinguishable situation. We must rule there was no abuse of discretion here. Plaintiff's instant contention is denied.
Plaintiff contends the court erred in giving instruction D-B at the request of defendant. This instruction told the jury that if plaintiff carelessly and negligently and voluntarily seized the hook and his injuries resulted directly from such negligence the verdict should be for defendants; and that "in determining whether or not the plaintiff was negligent the jury should take into consideration the plaintiff's age, discretion, capacity, and experience. Negligence, within the meaning of this instruction, means the failure to exercise that degree of care which would be exercised by an ordinarily prudent boy of plaintiff's age, capacity and experience under the same or similar circumstances." The trial court had therefore given instructions P-3 and P-5 at plaintiff's request, and each of them had covered the same subject matter covered in instruction D-B. Plaintiff, having joined in the submission, is in no position to complain. Having persuaded the trial court to give, at his request, two instructions covering that field of the case, the plaintiff will not be heard to base an assertion of reversible error upon the court's giving, at defendants' requests' a third instruction upon the same subject matter. Royal v. Thompson, Mo.Sup., 212 S.W.2d 921, 922, Roeslein v. Chicago E. I. R. Co., Mo.Sup., 214 S.W.2d 13, 18. Plaintiff rests his complaint upon his ipse dixit that instruction D-B peremptorily directs a verdict. It does not do so. The objection to instruction D-B is without merit and must be denied.
It is next complained that instruction D-A given at the request of defendants was reversibly erroneous. It is said by plaintiff only that the instruction is confusing and misleading. It is not pointed out by plaintiff wherein or in what respect it is confusing or misleading. No issues or facts are assumed in the instruction. This abstract complaint against the instruction is wholly without any merit and must be denied.
It is last assigned as error that the trial court erred in refusing to give instruction P-8, offered by the plaintiff. This refused instruction would have told the jury that even if the jury found that plaintiff's father told plaintiff and his sister to take hold of the cable and hook and that plaintiff did so, "but you shall further find that he (plaintiff) was too young to understand the danger of grasping the hook and allowing his fingers to remain clasped about it until some of his fingers were mashed between it and the bed of the truck, if so, you will still find for the plaintiff because you cannot impute such negligence, if any, of the father to the plaintiff."
While instruction P-8 has many patent infirmities, it is sufficient answer to plaintiff's assertion that the refusal of the instruction was error to point out that the instruction predicated a verdict for plaintiff upon but a single phase of the case, and, predicating a verdict for plaintiff, failed to require a finding that the defendants were negligent. The subject matter and the theory of instruction P-8 were fully covered by plaintiff's given instruction P-4; but in instruction P-4 the court additionally required the jury to find as a predicate of plaintiff's recovery that plaintiff's injury was the result of the negligence of defendants and of plaintiff's father.
If instruction P-8 had been given, the jury could have returned a verdict for plaintiff upon the single finding that plaintiff was too young to understand the danger of grasping the hook, and, in total disregard of whether the defendants were or were not negligent. Not only was instruction P-8 contrary in that particular to the other instructions in the case which properly required a finding that defendants were negligent, but it would have authorized a recovery for plaintiff even though defendants were wholly free from negligence. No error was committed in refusing instruction P-8.
No reversible error appearing the judgment is affirmed.
All concur.