Opinion
No. 43331.
June 8, 1953.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
Moser, Marsalek, Carpenter, Cleary Carter, by Byron G. Carpenter, and O. P. Owen, St. Louis, for appellant.
Lyng, MacLeod Davidson and Russell N. MacLeod, St. Louis, for respondent (plaintiff).
Plaintiff Davidson obtained a judgment in the Circuit Court of St. Louis County, Missouri, in the sum of $15,000 against defendant Rodgers as damages for personal injuries alleged to have been sustained as a result of being struck by defendant's automobile. Defendant appealed.
Three points were briefed by defendant: The first, that the evidence was not sufficient to authorize a submission of the case to a jury under the humanitarian doctrine. The second, that the trial court erred in not declaring a mistrial because of improper injection of insurance on the voir dire examination. Third, that the verdict is excessive. The case was submitted to a jury on humanitarian negligence in that defendant failed to sound a warning and failed to stop.
We shall dispose of the assignments of error in the order in which they occurred in the trial of the case.
After a panel of 18 jurors was sworn for the voir dire examination, plaintiff's counsel informed the court (out of hearing of the jury) that he intended to ask the jurors whether any of them had any interest in the Hartford Accident and Indemnity Company. The attorney for the defendant then informed the court that the panel of jurors was the same panel which had been discharged that same day in another division of the court because the question of insurance had arisen in the voir dire examination. For that reason, he urged that asking about any insurance matter would be prejudicial. The court then stated, "Of course, I don't know what the circumstances were in the trial before Judge Brackman. I am going to overrule the objection." In the examination that followed, Juror No. 4 stated that he had had an accident while at work and the Hartford Company had handled the case. Thereupon, the attorney for the defendant (not within the hearing of the juror) asked for a mistrial because the question of insurance had been brought into the case. The trial court, after some colloquy with the attorney, overruled defendant's motion. Later, during further questioning, the following occurred:
"Juror No. 2 (Mr. White): I would like to ask if the Hartford is a member of the American Four Group?
"Mr. Carpenter: Yes, it is. I am quite sure.
"Juror No. 2 (Mr. White): I am a stockholder in the controlling company, I think Continental."
At the close of the voir dire examination, Mr. Carpenter, the attorney for the defendant, again asked that the panel be discharged, which request was refused by the trial court.
Defendant's counsel admitted that his client carried an insurance policy. Since there was no point made that the policy was not issued by the Hartford Company, we shall assume that to be the fact. Plaintiff's counsel, therefore, was in good faith in asking the jurors whether any of them was interested in the Hartford Company. It has been consistently ruled by this court that such inquiry may be made McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, loc. cit. 367 (3) (4) (5); Rystersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538, loc. cit. 539(3,4); Decker v. Liberty, Mo.Sup., 39 S.W.2d 546. loc. cit. 547, 548(1); Galber v. Grossberg, 324 Mo. 742, 25 S.W.2d 96, loc. cit. 97, 98(3).
What actually occurred in the other division of the court with reference to the same jury panel was not shown by the record. Counsel for the defendant frankly stated to the court as follows:
"Mr. Carpenter: I might say this: Since my information is purely hearsay, if your Honor might talk to Judge Brackman as to what actually happened, if you are desirous of knowing. It is hearsay with me, purely hearsay through Mr. Dearing.
"The Court: Of course, I always did feel the question was a difficult one to handle, but I know it is permissible to ask it."
The trial court has some discretion in matters of this nature and in view of the record made we are not justified in holding the trial court erred in overruling the motion to discharge the panel.
The evidence revealed the following: Plaintiff was struck as he was crossing east of Ferguson Avenue. The concrete pavement on Page is 56 feet in width. The center 10 feet was reserved for left turns and was marked by white lines from Ferguson east a distance of about 160 feet.
Plaintiff lived north of Page Boulevard. At about 5:30 o'clock of the afternoon of April 20, 1950, desiring to go to a place of business on the south side of Page, plaintiff attempted to cross Page Boulevard at a point a short distance east of the point at which the white lines for the left turn lane begin. There was much traffic at the time; two lanes of cars were standing still on the north of Page headed west, waiting for the traffic signal to change to green.
Parties agreed that when plaintiff began his way through the cars, the traffic signal was red against westbound traffic. The evidence was that the signals changed in the order from red to a white arrow for left turns and then to green. Plaintiff testified he walked south between the two lines of cars, then stopped momentarily, looked east and saw no cars coming toward the left turn lane, then proceeded to walk south and when in the center of the street, he looked west, saw no cars approaching, and after taking one more step, was struck by a car coming from the east. This car proved to be the defendant's car. There was evidence of other witnesses that plaintiff was struck by the left front portion of the defendant's car; that after the car stopped, plaintiff was lying to the left of and in front of the car. The defendant testified that he was driving west on Page Boulevard and about the time he reached the white lines for the left turn lane, plaintiff, walking rapidly, stepped out from between two cars into the path of his car; that plaintiff was struck by the right front fender of his car; that when his car stopped, plaintiff was lying to the right of the car. He stated that he could not have seen plaintiff sooner because the cars standing in the "through" traffic lanes obstructed his view; that when plaintiff came out from between the cars, he, the defendant, was only about 7 or 8 feet from plaintiff; that he immediately applied the brakes and stopped, but that he could not stop in time to avoid a collision. The evidence placed the speed of defendant's car at the time of the impact from 5 to 15 miles per hour.
It is our opinion that the evidence presented a jury question. Many questions of fact were not in dispute. The facts as to the vital issue, whether defendant saw or should have seen plaintiff in time to have avoided a collision, were in dispute. In such a situation we must assume that the jury believed the evidence consistent with the verdict.
Plaintiff, as well as the defendant, was well acquainted with the traffic conditions at the intersection of Pagec and Ferguson; also that at the time of the evening when plaintiff was struck the traffic was unusually heavy. The evidence on plaintiff's part was that defendant could have seen plaintiff when he was at least 8 to 10 feet from the center of the street. Plaintiff was struck when he was about 3 feet south of the center line. Plaintiff's evidence was that he walked slowly and stopped or hesitated momentarily after coming from between the cars, looked to the east and saw no cars approaching the left turn lane. There was evidence that the defendant turned his car toward the center of the street and thus towards the left turn lane when he was about 200 feet east of Ferguson which would be about 40 feet from the point at which plaintiff was struck. If that be true, then defendant could have seen plaintiff at the time defendant turned his car towards the center of the street. Plaintiff did not again look to the east. A jury could well find that in the circumstances defendant, who intended to drive through the left turn lane which plaintiff was about to cross, should have sounded a warning and had he done so, plaintiff could have avoided being struck. Defendant admitted that he gave no warning.
A finding from the evidence was also justified that the defendant could have, after plaintiff began his journey south across the left turn lane from in between the cars, stopped his car and avoided a collision. Defendant testified he stopped his car within a distance of 10 feet. If plaintiff was struck by the left front of the defendant's car, taking into consideration the time consumed after plaintiff emerged from between the cars, defendant must have been a distance of about 40 feet east of plaintiff when plaintiff started to cross the white lines of the left turn lane. Defendant testified he was driving about 15 miles per hour. There was substantial evidence that plaintiff was struck by the left front of defendant's car. The defendant's wife who was riding in the rear seat of the car testified that after the collision she saw plaintiff lying to the left and front of the car. Other evidence was to the same effect. We rule that the evidence was sufficient to sustain a verdict for plaintiff. We have made a rather complete statement of the facts; the applicable law may be found in Romandel v. Kansas City Public Service Co., Mo.Sup., 254 S.W.2d 585, loc. cit. 593 (18) (19); and Wofford v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 529, loc. cit. 531 (1-3) (4).
Defendant cited Turbett v. Thompson, 363 Mo. ___, 252 S.W.2d 319. The facts there were very much unlike the facts and circumstances in the present case. Turbett was struck by a train which he had watched approach at a slow rate of speed. There were several tracks. He walked forward to cross the track on which the train was traveling thinking the train was on another track. This court held there was nothing in Turbett's conduct which would have led the engineer to conclude that Turbett was mistaken as to the track on which the train was approaching. The case is not in point. What was said in the Wofford case, supra, applies to our present case.
In his last point briefed, defendant says the verdict of $15,000 is grossly excessive. Defendant cited a number of cases among which were Mrazek v. Terminal R. Ass'n of St. Louis, 341 Mo. 1054, 111 S.W.2d 26, where a $15,000 judgment was reduced by $5,000, and O'Brien v. Vandalia Bus Lines, 351 Mo. 500, 173 S.W.2d 76, where a $15,000 judgment was reduced by $2,500.
Plaintiff before his injury was a strong, healthy man, 61 years old. A carpenter by trade, he earned about $6,000 per year, His injuries consisted of a fracture of the left femur and bruises to other parts of his body. Difficulties were met in attempting to reduce the fracture. Five days after his injuries, an operation was performed and a steel plate was screwed to the bone of his leg. He was in a cast for months and was forced to return to a hospital for treatment. Phlebitis developed which at the time of the trial (two years after the injury) was bothering plaintiff considerably. Plaintiff was unable to work for one year resulting in a loss of about $6,000. Medical expenses and hospital bills were in excess of $1,000. Plaintiff in the future will not be able to perform many duties required of a carpenter, such as climbing a ladder.
The doctor who treated plaintiff testified that at the time of the trial there was some restriction in the ankles, thighs, and knees of plaintiff and for that reason he could not assume a squatting position; that this condition was permanent.
We think it is obvious that the verdict of the jury was not excessive.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.