Opinion
No. 39084.
November 6, 1944. Rehearing Denied, December 4, 1944.
1. NEGLIGENCE: Street Car Collision: Submissible Case. There was a submissible case that the street car could have been stopped in time to avoid a collision when plaintiff drove his automobile upon the track to avoid striking a boy on a bicycle.
2. WITNESSES: Evidence: New Type Street Car: Expert Witness Properly Qualified. The trial court acted within his discretion in permitting a witness to testify as an expert as to the distance within which a new type street car could be stopped, though the witness had operated only older types of street cars.
3. NEGLIGENCE: Trial: Instruction Explaining Sole Cause Instructions not Error. Plaintiff's instruction that defendant's sole cause instructions should not apply if defendant's negligence directly contributed "in any degree whatever" was not error when read in connection with another instruction of plaintiff to which reference was made.
4. TRIAL: Jury Argument: Refusal to Discharge Jury Proper. The court sustained an objection to an argument to the jury concerning inadmissible police records, and it was proper for the court to refuse to discharge the jury.
5. DAMAGES: Verdict not Excessive. A verdict of $9000 for permanent injuries to plaintiff's arm and shoulder was not excessive.
Appeal from Jackson Circuit Court. — Hon. Albert A. Hughes, Judge.
AFFIRMED.
Charles L. Carr and Harding, Murphy Tucker for appellant.
(1) The trial court erred in permitting plaintiff's witness, Robert Brumfield, without qualification or knowledge, to testify as an expert with reference to the distances, relative and at various speeds, within which a new 700 type street car can be stopped in an emergency; said witness Brumfield having testified that he had never operated the new 700 type street car. Grotjan v. Thompson, 140 S.W.2d 706; Irwin v. St. Louis-S.F. Ry. Co., 325 Mo. 1019, 30 S.W.2d 56; Mammerberg v. Metropolitan St. Ry. Co., 62 Mo. App. 563; Igo v. Chicago Alton R. Co., 38 Mo. App. 377; Robison v. Chicago, Great Western R. Co., 66 S.W.2d 180; Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335; Goggin v. Wells, 249 S.W. 702; Lyons v. Metropolitan St. Ry. Co., 253 Mo. 143, 161 S.W. 726; Kinlen v. Metropolitan St. Ry. Co., 216 Mo. 145, 115 S.W. 523. (2) The trial court erred, to the prejudice of the defendant, in overruling defendant's demurrer to the evidence. (3) Plaintiff waives all abandoned assignments of negligence. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. (4) As plaintiff knew of the approach of the southbound street car, he was not oblivious of his peril, and, therefore, the humanitarian doctrine did not function in this case until plaintiff was not only on the southbound street car tracks, but was likewise in a position of inescapable peril — a position of inability to turn or swerve from the southbound street car tracks and thus avoid the collision by his own efforts. Gosney v. May Lbr. C. Co., 179 S.W.2d 51; Robards v. K.C. Public Service Co., 177 S.W.2d 709; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. (5) There is no evidence in this case as to when plaintiff reached a place of inescapable peril on the southbound street car track, as there is no evidence as to the time or distance within which plaintiff, at the speed he was going, could swerve from the southbound street car track and thus avoid a collision. There is, therefore, no evidence of this basic element of the humanitarian doctrine. There is likewise no evidence as to the distance between the auto and the street car when plaintiff reached a position of inescapable peril. Bauer v. Wood, 154 S.W.2d 356; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; Petty v. St. L. M.R. Co., 179 Mo. 666, 78 S.W. 1003; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Sapp v. Carman Co., Inc., 95 S.W.2d 658; Webb v. Cox, 53 S.W.2d 1057; Hollister v. A.S. Aloe Co., 348 Mo. 1055; Robinson v. O'Shanzky, 96 S.W.2d 895; Crawshaw v. Mable, 52 S.W.2d 1029. (6) There is no substantial evidence that the street car operator was guilty of any negligence in failing to stop the street car after plaintiff came into a position of inescapable peril from the approaching street car, and there is no substantial evidence that any such negligence was the proximate cause of the accident. Gosney v. May Lbr. C. Co., 179 S.W.2d 51; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Miller v. K.C. Public Service Co., 178 S.W.2d 824; Sammons v. K.C. Public Service Co., 179 S.W.2d 620; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. 584; Petty v. St. Louis M.R.R. Co., 179 Mo. 666, 78 S.W. 1003; Driscoll v. Wells, 29 S.W.2d 50; Rafferty v. Levy, 153 S.W. 765. (7) There is no substantial evidence that the street car operator was guilty of any negligence in failing to slacken the speed of the street car after plaintiff came into a position of inescapable peril from the approaching street car, and there is no substantial evidence that any such negligence was the proximate cause of the accident. There is no evidence with reference to the time or distance necessary to slacken the speed of the street car and thus enable plaintiff and his auto, if so, to leave the track and avoid a collision. Gosney v. May Lbr. C. Co., 179 S.W.2d 51; Bauer v. Wood, 154 S.W.2d 356; Sammons v. K.C. Public Service Co., 179 S.W.2d 620; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W.2d 584; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Christner v. Chicago, R.I. P. Ry. Co., 228 Mo. App. 220, 64 S.W.2d 752; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; Driscoll v. Wells, 29 S.W.2d 50; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135. (8) Where opinion evidence as to speeds, distances, and relative positions is speculative, is entirely beyond reason, and the discrepancies are too great to be reconciled, such opinion evidence has no probative value or legal effect. Bauer v. Wood, 154 S.W.2d 356; Sammons v. K.C. Public Service Co., 179 S.W.2d 620; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730. (9) Where the testimony of a witness (particularly a party) gives rise to two or more equally reasonable contrary inferences there is no inference that can be indulged without mere speculation and where the testimony of a witness is contrary and conflicting, one version tending to prove the issue and the other tending to disprove it, with no explanation of the contradiction, the jury should not be permitted to speculate or guess which statement of the witness should be accepted. Pashea v. Terminal R. Assn. of St. Louis, 165 S.W.2d 691; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Weisman v. Arrow Trucking Co., 176 S.W.2d 37; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730. (10) The testimony of a witness that defendant's approaching street car did not "seem to slow down or slacken speed" amounts to a mere conclusion without probative value or legal effect. Hall v. Wilkerson, 84 S.W.2d 1063; Gorman v. Franklin, 117 S.W.2d 289. (11) Opinion evidence — opinion evidence of speed, distance and time — which amounts to a mere guess is improper, inadmissible and has no probative value. Gorman v. Franklin, 117 S.W.2d 289; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730; Christner v. Chicago, R.I. P. Ry. Co., 228 Mo. App. 220, 64 S.W.2d 752; Willis v. K.C. Terminal Ry. Co., 199 S.W. 736; Guyer v. Mo. Pac. Ry. Co., 174 Mo. 344, 73 S.W. 584. (12) Even though improper evidence, such as opinion evidence of speed, distance and time, was introduced in evidence without objection, the legal effect of such evidence must be determined by the court, and, if such evidence has no probative value — being a mere guess or conclusion — it cannot be treated as substantial evidence, either by the trial or reviewing court, as such courts are not authorized to speculate and guess. Turner v. M., K. T.R. Co., 346 Mo. 28, 142 S.W.2d 455; Nodaway Conty v. Williams, 199 S.W. 224; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730; Spain v. St. Louis S.F. Ry. Co., 190 S.W. 358; Lyman v. Dale, 262 Mo. 353, 171 S.W. 352; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644; Smith v. Met. Life Ins. Co., 108 S.W.2d 995. (13) Plaintiff, offering no evidence as to distance within which defendant's street car could have been stopped at speeds testified to by plaintiff, made no case for jury under humanitarian doctrine, even though defense witnesses testified as to stopping distance at other speeds. Plaintiff is not aided by other testimony contrary to plaintiff's theory of case. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Miller v. Kansas City Pub. Serv. Co., 178 S.W.2d 824; Nodaway County v. Williams, 199 S.W. 224; Swain v. Anders, 235 Mo. App. 125, 140 S.W.2d 730; Spain v. St. Louis S.F. Ry. Co., 190 S.W. 358; Lyman v. Dale, 262 Mo. 353, 171 S.W. 352; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644; Smith v. Met. Life Ins. Co., 108 S.W.2d 995. (14) It requires evidence of more than a mere possibility that defendant might have avoided accident to put liability on defendant under the humanitarian doctrine. Burton v. Joyce, 22 S.W.2d 890; Rafferty v. Levy, 153 S.W.2d 765. (15) As the evidence shows that the plaintiff is not entitled to recover either on primary or humanitarian negligence, and that plaintiff has presented his evidence to the fullest extent possible, this case should be reversed outright rather than merely reversed and remanded. Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Miller v. Wilson, 288 S.W. 997. (16) Plaintiff's Instruction 1, directing a verdict for the plaintiff, submits negligence of the defendant in the alternative, namely, failure to stop the street car or slacken the speed thereof. Under such instruction plaintiff had the burden of supporting both alternatives of negligence with substantial evidence, and, if one alternative of negligence is not supported by substantial evidence, the instruction constitutes reversible error; a fortiori, as here, where both alternative grounds of negligence are not supported by substantial evidence showing such negligence or that such negligence is the proximate cause of the accident. State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835; Carlisle v. Tilghmon, 159 S.W.2d 663; Martin v. Springfield City Water Co., 128 S.W.2d 674. (17) Plaintiff's Instruction 1 is prejudicially erroneous, being confusing and misleading, in that it attempts to impose the duty on the defendant to avoid the collision after the collision occurred and in that the duty imposed was impossible of performance. Williams v. St. Louis Public Service Co., 54 S.W.2d 764; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538. (18) Instructions are for the direction and guidance of juries of ordinary laymen and hence the language of an instruction should be so plain that no doubt can arise as to its meaning, and it should be a clear declaration of the law's applicable facts and not open to two or more instructions, one of which is at variance of the law. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. (19) The trial court erred, to the prejudice of the defendant, in giving plaintiff's Instruction 3, defining "sole cause" and authorizing a verdict for plaintiff if the jury found that the acts and conduct of plaintiff were not the sole cause of the accident. Said instruction is prejudicially erroneous, being confusing and misleading and in that it authorizes a finding for the plaintiff if the jury finds that the defendant's operator was guilty of negligence in any degree whatsoever as submitted in plaintiff's Instruction 1, or was guilty of contributory negligence in any degree that directly contributed in any degree whatever in causing the collision in question as submitted in plaintiff's Instruction 3. Cento v. Security Bldg. Co., 99 S.W.2d 1; Murray v. DeLuxe Motor Stages of Illinois, 133 S.W.2d 1074; Young v. St. Louis, I.M. S. Ry. Co., 227 Mo. 307, 127 S.W. 19; Magrane v. St. Louis S. Ry. Co., 183 Mo. 119, 81 S.W. 1158; Grange v. Chicago E.I. Ry. Co., 334 Mo. 1040, 69 S.W.2d 955; Dove v. Atchison, T. S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548. (20) The trial court erred, to the prejudice of the defendant, in refusing at request of the defendant to discharge the jury after plaintiff's attorney made an argument purporting to be based on hearsay evidence — police reports — argued to be favorable to the plaintiff, and this notwithstanding that said evidence had been excluded by the court. Houck v. L.A. Tucker Truck Lines, 131 S.W.2d 366; Page v. Unterreiner, 106 S.W.2d 528; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; Levels v. St. Louis H. Ry. Co., 196 Mo. 606, 94 S.W. 275; Haynes v. Town of Trenton, 108 Mo. 123, 18 S.W. 1003; Carpenter v. Kurn, 345 Mo. 877, 136 S.W.2d 997; Foster v. Kurn, 234 Mo. App. 909, 133 S.W.2d 1114; State ex rel. Kresge v. Shain, 340 Mo. 145, 101 S.W.2d 14; Hancock v. K.C. Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Hendrick v. Kauffman, 66 S.W.2d 985. (21) The trial court erred in not granting defendant a new trial for the reason that the verdict of the jury in the sum of Nine Thousand Dollars ($9000) is excessive. Johnston v. City of St. Louis, 138 S.W.2d 666; Kramer v. Lapse, 94 S.W.2d 1090; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27.
E.E. Thompson, Alfred H. Osborne and Thompson Osborne for respondent.
(1) Testimony of witness Brumfield was properly admitted. The competency of an expert is within discretion of trial court. The witness was qualified by knowledge, experience, and observation to express opinion regarding stopping distances of defendant's street car. McAnany v. Henrici, 238 Mo. 103, 141 S.W. 633; Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58; Robison v. Chicago Great Western R. Co., 66 S.W.2d 180; Adams v. Quincy, O. K.C.R. Co., 287 Mo. 535, 229 S.W. 790; Bebout v. Kurn, 348 Mo. 201, 154 S.W.2d 120; Kimpton v. Spellman, 173 S.W.2d 886; Spaulding v. K.C. Pub. Serv. Co., 16 S.W.2d 1012; Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881, certiorari denied, 287 U.S. 621, 53 S.Ct. 21; Borrson v. M.-K.-T.R. Co., 172 S.W.2d 826; Owens v. K.C., C.C. St. J. Ry. Co., 225 S.W. 234; Batsch v. United Rys. Co., 122 S.W. 371; Buzan v. K.C. Rys. Co., 212 S.W. 905; Mann v. Grim-Smith Hospital Clinic, 347 Mo. 348, 147 S.W.2d 606; Meily v. St. L. S.F. Ry. Co., 215 Mo. 567, 114 S.W. 1013; Hiatt v. Wabash Ry Co., 334 Mo. 895, 69 S.W.2d 627. (2) Defendant's demurrer to the evidence was properly overruled; plaintiff's peril and defendant's ability to avert his injury were questions for the jury's determination; there was ample evidence to warrant submission of defendant's humanitarian negligence in failing to stop or slacken the speed of its street car. Cento v. Security Bldg. Co., 99 S.W.2d 1; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Scott v. Term. Railroad Assn., 86 S.W.2d 116; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Grubbs v. K.C. Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 71; Thompson v. Quincy, O. K.C.R. Co., 18 S.W.2d 401; Kloeckner v. St. L. Pub. Serv. Co., 331 Mo. 396, 53 S.W.2d 1043; Allen v. Kessler, 64 S.W.2d 630; Perkins v. Term. Railroad Assn. of St. L., 340 Mo. 868, 102 631 S.W.2d 915; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; Levine v. Vigne, 339 Mo. 660, 98 S.W.2d 737; Lamoreux v. St. L.-S.F. Ry. Co., 337 Mo. 1028, 87 S.W.2d 640; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582; Beck v. Chicago, R.I. P. Ry. Co., 327 Mo. 658, 37 S.W.2d 917; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Mooney v. Term. R. Assn. of St. Louis, 176 S.W.2d 605; Chervek v. St. L. Pub. Serv. Co., 173 S.W.2d 599; Hendrick v. Kurn, 179 S.W.2d 717; Steger v. Meehan, 63 S.W.2d 109; Hoelzel v. Chicago, R.I. P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Swain v. Anders, 140 S.W.2d 730; Johnson v. Sheerer, 109 S.W.2d 123; Harry v. Thompson, 166 S.W.2d 795; Smith v. Producers Cold Storage Co., 128 S.W.2d 299; Ross v. Wilson, 163 S.W.2d 342; Young v. M.-K.-T.R. Co., 100 S.W.2d 929; Gann v. Chicago, R.I. P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Cameron v. Howerton, 174 S.W.2d 206; Sevedge v. Kansas City, St. L. C.R. Co., 331 Mo. 312, 53 S.W.2d 285; Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70; Phillips v. St. L.-S.F. Ry. Co., 337 Mo. 1068, 87 S.W.2d 1035; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Phillippi v. N.Y.C. St. L.R. Co., 136 S.W.2d 339; Sing v. St. L.-S.F. Ry. Co., 30 S.W.2d 37. (3) Plaintiff's Instruction 1 was properly given; defendant joined in theory of submission contained in said instruction; it did not unduly limit danger zone. Hoelzel v. Chicago, R.I. P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Melenson v. Howell, 334 Mo. 137, 130 S.W.2d 555; Gann v. Chicago, R.I. P.R. Co., 319 Mo. 214, 6 S.W.2d 39; Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70; Phillips v. St. Louis-S.F.R. Co., 337 Mo. 1068, 87 S.W.2d 1035; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Phillippi v. N.Y.C. St. Louis R. Co., 136 S.W.2d 339; Sing v. St. Louis-S.F.R. Co., 30 S.W.2d 37; Perkins v. Terminal Railroad Assn., 340 Mo. 868, 102 S.W.2d 915; Banks v. Morris, 320 Mo. 254, 257 S.W. 482; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 11 S.W.2d 54; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413; Lake Shore M.S. Ry. Co. v. Johnson, 135 Ill. 641, 26 N.E. 510. (4) Plaintiff's Instruction 3 properly declared and applied the law with respect to the sole cause issue. Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Billingsley v. K.C. Pub. Serv. Co., 181 S.W.2d 204; Semar v. Kelly, 176 S.W.2d 289; State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; Stanich v. Western Union Telegraph Co., 348 Mo. 188, 153 S.W.2d 54; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Gower v. Trumbo, 181 S.W.2d 653; Dove v. Atchison, T. S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548. (5) The court did not commit error in refusing to discharge jury because of alleged improper argument of plaintiff's counsel. Atchison v. Weakley, 350 Mo. 1092, 169 S.W.2d 914; Gettys v. Amer. Car. Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Crews v. K.C.P.S. Co., 341 Mo. 1090, 11 S.W.2d 54. (6) The verdict is not excessive. Coleman v. Rightmyer, 285 S.W. 403; Schaefer v. Transamerican Fgt. Lines, 173 S.W.2d 20; O'Brien v. Vandalia Bus Lines, 173 S.W.2d 76; Schroeder v. Wells, 298 S.W. 806; Mattice v. Term. Railroad Assn., 270 S.W. 306; Wagner v. Gilsonite Const. Co., 220 S.W. 890; Taylor v. Lumaghi Coal Co., 181 S.W.2d 536; Kelley v. Ill. Cent. R. Co., 177 S.W.2d 435; Charlton v. Lovelace, 173 S.W.2d 13.
Action for personal injury; verdict and judgment for $9,000 went for plaintiff; defendant appealed.
About 4:30 P.M., on August 25, 1941, plaintiff was driving his automobile north on Troost Avenue in Kansas City. In front of him were defendant's northbound street car and an automobile some 25 or 30 feet to the rear or south of the street car. Out to the right some 3 or 4 feet and 10 or 15 feet in front of plaintiff's automobile was a boy on a bicycle; and about 25 or 30 feet south of plaintiff was an automobile also traveling north. The northbound line of traffic, unless it was the boy on the bicycle, was traveling at 25 or 30 miles per hour. Shortly after plaintiff's automobile crossed 29th street in this line of traffic the northbound street car, for some reason not shown, suddenly slowed down. Thereupon the automobile next to the street car turned to the right in front of the boy on the bicycle; the boy turned to the left in front of plaintiff; and plaintiff turned to the left and onto the southbound [874] street car track and before he got off the track his automobile was struck by defendant's southbound street car resulting in the injuries complained of.
Plaintiff alleged primary negligence and negligence under the humanitarian rule, but submitted the cause under the humanitarian rule only. Negligence under the humanitarian rule is alleged as follows:
That defendant's operator "saw or by the exercise of ordinary care could have seen the plaintiff and his automobile on defendant's southbound track and in the position of peril and danger from the approach of defendant's said street car; in that defendant's said operator saw or by the exercise of ordinary care could have seen plaintiff and his said automobile on defendant's track or so near thereto as to be in the path of defendant's said street car and in a position of imminent peril and danger from the approach of defendant's said street car in time thereafter for defendant's said operator by the exercise of ordinary care to have stopped said street car or slackened the speed thereof . . . and thus and thereby avoided the aforesaid collision and the injuries to plaintiff, but defendant's said operator negligently failed so to do."
The answer was a general denial, and alleged negligence on the part of plaintiff alleged to be "the contributory cause or the sole, proximate and direct cause of any and all injuries that plaintiff may have sustained."
Error is assigned: (1) On the refusal of defendant's demurrer to the evidence; (2) on the admission of evidence; (3) on plaintiff's instructions 1 and 3; (4) on argument of counsel; and (5) on an alleged excessive verdict.
[1, 2] The assignments on the refusal of the demurrer to the evidence and on the admission of evidence are so related that they may be considered together. Defendant says that plaintiff's expert witness on stopping or slowing down the street car was not qualified to give such evidence.
Plaintiff testified: "The northbound street car and the automobile ahead of me were traveling, just before the collision, about 25 miles per hour; the street car made a sudden decrease of speed; the automobile in front of me made a sudden turn to the right; the boy on the bicycle made a quick turn to the left, getting right in my path which made me cut shortly to the left and onto the southbound track. When I got over to the southbound track, I had changed my speed from 25 to 20 miles per hour, because I applied my brakes; I would say I was going 15 miles per hour when I got on the southbound track; my left wheels were between the rails of the southbound track. When I got on the southbound track, the southbound street car was approximately 100 feet away, or maybe a little over, and was moving at about 25 miles per hour." Plaintiff said that when he swerved onto the southbound track, he then released his brakes; turned sharply to the right to try to get off the track; tried to gun it; that there was no change in the speed of the street car as it came south; that the left front of the street car struck his automobile at about the door on the left side; that he was moving northeast when hit.
Plaintiff's witness Pruitt was driving in the southbound traffic lane to the right and to the rear of the southbound street car. He said that when plaintiff swerved onto the southbound street car track, the southbound street car was 100 or 125 feet north of plaintiff and was moving between 20 and 25 miles per hour. Other witnesses for plaintiff testified that the southbound street car did not slow down prior to the collision, and one witness said that plaintiff was on the wrong side of the street for about 15 feet, that is, his automobile moved north about 15 feet, while astride the east rail of the southbound street car track. Morrison, the operator of the street car, testified that the street car was moving about 25 miles per hour when plaintiff cut out 75 feet away "on the southbound track", and that he (Morrison) "at once gave it all emergency brakes", and that the street car stopped about 25 feet south of the point of collision. There was evidence that the street car did not stop till 100 feet south of the point of collision.
Robert Brumfield was plaintiff's expert witness on stopping or slowing down the street car and who, defendant says, was not qualified to give evidence on that subject. Brumfield testified: "Immediately prior to October 29, 1940, I was employed for 6 years by defendant as street car operator and bus driver. I operated street cars on Troost Avenue between 28th and 29th streets. I operated the 1400 type car. Since the new type street car (the 700 type) has been in use (July, 1941) on Troost, I have frequently ridden and observed its operation. I have been on the new type car several times when an emergency stop was made, and observed the [875] operation on such occasions. In making the emergency stops of the new type car, the operator applied the brakes with his foot, with his foot pedal. The brake equipment on the new cars is very modern; it is applied by foot pedal; it is a dynamic braking equipment. They also had a magnetic braking equipment. The magnetic brake is a bar that drops down on the rail, entirely free from the wheel. The dynamic brake works on a principle of on the motors, electric motors of a car. The dynamic principle is a slowing up of the axle by the motors itself. It is comparable to the slowing down of an automobile when you take your foot off the gas.
"Q. Now then, Mr. Brumfield, I want to ask you, taking into consideration your experience in operating, say the 1400 type street car, for a number of years, and taking into consideration your observation and examination by observation of the new type street car and your experience while riding in them while making emergency stops, and state whether or not in your opinion the new type car, such as was in use on Troost Avenue in August, 1941, could be stopped in a less or greater distance (than the old type) under the same or similar circumstances at the same speed? A. In my opinion, I would say it could be stopped quicker than the old type cars." On hypothesized facts Brumfield gave it as his opinion that the southbound street car, at a speed of 20 miles per hour, could have been stopped with safety, etc., in 30 or 35 feet, and at a speed of 25 miles in 40 or 50 feet, and at a speed of 30 miles in 50 or 55 feet.
"Expert testimony is the opinion of a witness possessing peculiar knowledge, wisdom, skill or information regarding a subject matter under consideration, acquired by study, investigation, observation, practice or experience, and not likely to be possessed by the ordinary layman or an inexperienced person, and consequently who is incapable of understanding the subject under consideration, without aid of the opinion of some person who possesses such knowledge, wisdom, skill, practice or experience; and a person who is competent to give expert testimony is denominated as `expert witness.'" McAnamy v. Henrici et al., 238 Mo. 103, l.c. 113 (and cases there cited), 141 S.W. 633. The question of the qualification of a witness to testify as an expert is a matter resting largely in the discretion of the trial court, and the ruling of the trial court on such question will not be overturned unless it appears that such discretion was abused. Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58, l.c. 62, and cases there cited; Bebout v. Kurn et al., 348 Mo. 501, 154 S.W.2d 120, l.c. 125-126, and cases there cited; Robison v. Chicago, Great Western R. Co. (Mo. App.), 66 S.W.2d 180 (certiorari denied). It will not be necessary to review these cases. It is quite clear, we think, that discretion was not abused in permitting witness Brumfield to testify on the subject of stopping the street car, and that the demurrer was properly refused.
The complaint on plaintiff's instruction No. 1 is that there was no substantial evidence upon which to base it. That question is ruled in ruling the assignment on the refusal of the demurrer to the evidence.
Defendant says that plaintiff's instruction No. 3 is bad because it "authorizes a recovery for plaintiff on a mere scintilla of evidence." In order to better appreciate this assignment it is necessary, we think, to make reference to defendant's sole cause instructions F, G, and H. Instruction F told the jury that if they found that plaintiff's manner of operating his automobile was the sole cause of the collision, then to find for defendant. Instruction G told the jury that if they found that plaintiff's violation of a city ordinance (in evidence) prohibiting the driving of a vehicle on the left side of the street was the sole cause of the collision, then to find for defendant. Instruction H was similar to Instruction G except that H was based on the violation of a city ordinance prohibiting the driver of a vehicle from following another vehicle more closely than is reasonable and prudent.
Plaintiff's instruction No. 3 told the jury that defendant's instructions F, G, and H "are what is known in law as sole cause instructions and that by the term sole cause is meant acts which were the sole cause of the collision without any contributing negligence whatsoever on the part of defendant's operator as submitted in (plaintiff's) instruction No. 1. Therefore, if you find that defendant's operator was negligent as submitted in said instruction No. 1, and thereby directly contributed in any degree whatever to cause the collision in question, then you cannot find the issue of sole cause referred to in said instructions lettered F, G, and H in favor of defendant" (italics [876] ours). The complaint on instruction No. 3 is leveled at the phrase in any degree whatever. Plaintiff says that these sole cause instructions did not properly hypothesize the facts, but, in the situation, we are not concerned with that question.
Hollister v. A.S. Aloe Company, 348 Mo. 1055, 156 S.W.2d 606, was a personal injury action submitted under the humanitarian rule. Defendant's truck collided with an automobile in which the plaintiff was riding, and being driven by her husband. The defendant contended that plaintiff's injury was caused by the sole negligence of her husband, and such theory was submitted in the defendant's sole cause Instruction M. On behalf of the plaintiff the court gave instruction No. 5, as follows:
"The court instructs the jury as regards instruction M that said instruction constitutes what is known as a sole cause instruction, that is, it submits issues as to whether Dr. Hollister (plaintiff's husband) did not obey the stop sign and whether he drove to his left of the center of the street and thereby solely caused said collision, and in this connection you are further instructed that sole cause in this case means a collision occurring without any intervening and concurring negligence as submitted in instruction No. 1, and if you should believe Dr. Hollister did not obey said stop sign and so drove to his left of the center of the street, or either or both, yet if you further believe from the evidence that said truck driver was negligent in any respect whatever as submitted in said instruction No. 1 and thereby directly contributed in any degree to said collision, then you must find the issues under said instruction M, that is the issues of sole cause therein, in favor of plaintiff Mrs. Hollister and against the defendant company" (italics ours).
On appeal (in the Hollister case) the defendant assigned error on the plaintiff's instruction No. 5. Several complaints were made on the instruction, and among these was a complaint on the phrase in any degree. In ruling the point adversely to the defendant the court said [156 S.W.2d l.c. 610]: "Instruction number one told the jury the negligence that was necessary for them to find before they could return a verdict for respondent and that instruction told the jury that the collision must have been the `direct result of the aforesaid negligence.' This was incorporated in instruction five by direct reference. Moreover, this instruction required the jury to find the negligence as defined in instruction one to be such negligence that `directly contributed' to the collision. The point is without merit." It will be noted that instruction No. 3, in the present case, made specific reference to plaintiff's instruction No. 1 as to the negligence required to be found in order to find for plaintiff. But defendant says that "the point of proximate cause was raised" in the Hollister case, but that such is not the point here; that the point here is on "submitting degrees of negligence", and that such point was not raised in the Hollister case. We think the Hollister case, in effect, rules the question here.
In Dove et al. v. Atchison, Topeka Santa Fe Ry. Co., 349 Mo. 798, 163 S.W.2d 548, l.c. 553, the court criticised an instruction on contributory negligence containing the language "directly contributed in any degree", but held that when all the instructions were read together such was not reversible error. The court said: "While the matter of degree would better be omitted from such instructions because of the possibility of confusion or misunderstanding, this statement (by including the word `directly') is not technically incorrect and it must be considered in connection with the definitions given and the facts submitted." In view of the evidence in the present case, and plaintiff's instruction No. 1, specifically referred to in instruction 3, we do not think that defendant was harmed by the phrase complained of in instruction 3.
During the closing argument plaintiff's counsel said: "Oh, how I wish we could have brought to you what is in those police records. We couldn't identify them, men in the service, men doing defense work away from town, but how I wish we could have given you men the advantage of the records of this city's police department." Objection to this argument was made on the ground that "all proper evidence went to the jury" and that such argument was improper. The objection was sustained and the jury directed to disregard such argument. Then defendant moved to discharge the jury, which was denied. In the brief defendant says that notwithstanding that the police vehicular report and the police diagram of the scene of the accident were excluded as hearsay, plaintiff's counsel "wilfully and in bad faith . . . gave the jury to infer that said police records were favorable to plaintiff . . . [877] and, in effect, advised the jury that if defendant had not objected to them the jury could have considered such exhibits."
In the opening statement plaintiff's counsel told the jury that four officers were at the scene of the collision. That "some made pictures and some made measurements. As far as we are able to determine all four of those officers are in the service. We will have records here, however, including the pictures that will be brought in by the custodian of records. There is a possibility of one of the officers being available if we can get hold of him, but I don't know whether we can or not."
The vehicular report and the diagram from the police file were not before the jury, but there were before the jury an elaborate diagram of Troost Avenue between 28th and 29th streets and the immediate adjacent area east and west, and photographs taken at the scene. We think the refusal to discharge the jury was proper. Atchison v. Weakley et al., 350 Mo. 1092, 169 S.W.2d 914, l.c. 916; Gettys v. American Car Foundry Co. et al., 322 Mo. 787, 16 S.W.2d 85, l.c. 90; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54, l.c. 62.
Was the verdict excessive? Plaintiff's injuries are correctly stated in the brief to the following effect: Laceration of the left arm extending from just below the shoulder downward 17 inches to a point about the mid forearm; the triceps muscle was split and laid open. There was an injury to the ulnar nerve, which required an operation for the purpose of transplanting the ulnar nerve. The laceration covered a width of about three inches on the surface of the arm; the olecranon or knob of the left elbow was fractured; he received a blow to the head and an injury to his back; he was taken from the scene of the accident to General Hospital in Kansas City, where he remained until about December 12, 1941. While at the hospital two operations were performed on his arm, one on the date of admission, which consisted of repairing the laceration and the insertion of a Stieman pin in the olecranon, and into the shaft of the ulna; thereafter his arm was placed in a cast. On November 12, 1941, an operation was performed to transplant the left ulnar nerve at the elbow. The ulna was fractured in two places, a fracture in the upper third and in the olecranon process; the latter was torn out; the fragments of the olecranon and shaft of ulna were wired together; the union of the fractures in the arm was bad, leaving a separation of a fragment of the olecranon from the ulna. Plaintiff was administered drugs to allay pain, consisting of codeine, aspirin, membutal, and morphine, daily until he was discharged from the hospital. At the time of trial on October 11, 1943, plaintiff had suffered permanent loss of 75% of the use of his left arm; also 20% loss of the use of his left shoulder. The muscles of the left arm and hand were somewhat atrophied and were in the process of disintegration; there was partial loss of the use of the left hand; the left arm, shoulder and hand were smaller than the right arm, hand and shoulder, which condition did not exist prior to receipt of his injuries. He had been subjected to considerable pain because of the type of injury to his nervous system and this painful condition was permanent.
Plaintiff was 40 years old and in good health when injured and was earning $40 to $45 per week. He had been earning that amount for about 8 or 9 months out of each year; he worked at odd jobs during remainder of year; he returned to work after the injury about the middle of March, 1942, thus losing 8 months from his work. After returning to work he was unable to work full time by reason of his condition resulting from his injuries, and up to the time of trial had averaged about three days per week. It was shown that he was not qualified by education or training for any kind of work other than labor work.
We do not think the verdict out of line with the rule of uniformity. See Coleman v. Rightmyer (Mo. Sup.), 285 S.W. 403; Schaefer v. Transamerican Freight Lines (Mo. Sup.), 173 S.W.2d 20; Kiefer v. City of St. Joseph (Mo. Sup.), 243 S.W. 104; Rose v. St. Louis-San Francisco Ry. Co., 315 Mo. 1181, 289 S.W. 913; Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536.
The judgment should be affirmed, and it is so ordered. Dalton and Van Osdol, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.