Eaves v. Wampler

11 Citing cases

  1. Hemann v. Camolaur, Inc.

    127 S.W.3d 706 (Mo. Ct. App. 2004)   Cited 10 times
    In Hemann, the court distinguished Hoffman because the plaintiff there did not argue that the defendant had the right or obligation to have the plaintiff examined.

    Nor did Plaintiff's argument assert that Defendant had an obligation or duty to bring in medical evidence, thereby shifting the burden of proof. Rather, we find that Plaintiff's argument was more similar in effect to the arguments distinguished from Hoffman in Chailland v. Smiley, 363 S.W.2d 619, 629 (Mo. banc 1963), and Eaves v. Wampler, 390 S.W.2d 922, 929 (Mo. App. 1965); that is, when considered in light of the entire record, the argument briefly commented on the fact that Plaintiff's medical evidence was uncontroverted, a permissible argument, and it did not amount to prejudicial error. In Chailland, 363 S.W.2d at 629, the court found no error in the trial court's admission of the plaintiff's argument: "'I want to get briefly to the injuries in this case.

  2. Rooney v. Lloyd Metal Products Company

    458 S.W.2d 561 (Mo. 1970)   Cited 23 times

    Under the probative facts of this case, while we do not judicially know the precise distance in which plaintiff could have brought his automobile to a stop before the collision, we have no hesitancy in holding that he could not have stopped under the facts and circumstances in evidence in this case using either reaction time figure of a second or a second and a half. Johnson v. Bush, Mo.App., 418 S.W.2d 601, 608 [16, 17]; McCarthy v. Wulff, Mo., 452 S.W.2d 164, 168 [9]; Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 930 [17, 18]. We opine that while unquestionably charts dealing with speed and stopping distances of automobiles are helpful and useful implements in determining the nice calculations involved in automobile collision cases (Danner v. Weinreich, Mo., 323 S.W.2d 746, 752[5-7]), the conclusiveness thereof, without more, should not be overemphasized because of the fallible human estimates upon which the application of the chart calculations are based. 9C Blashfield, Cyclopedia of Automobile Law, Section 6237, page 411.

  3. Duboise v. Railway Express Agency, Inc.

    409 S.W.2d 108 (Mo. 1966)   Cited 13 times

    As stated the general rules are conceded and the problem here is whether the trial court so manifestly abused its discretion in overruling their motion that they are entitled to a new trial at the hands of this court. Halley v. Schopp, Mo., 400 S.W.2d 123, 126; 68 A.L.R.2d l. c. 1081; Eaves v. Wampler, Mo. App., 390 S.W.2d 922, 929. In this case there was no explanation for the failure of Railway Express to call as witnesses its three employees who had inspected the truck for the purpose of ascertaining whether it bore any marks indicating that it had been involved in a collision.

  4. Pretti v. Herre

    403 S.W.2d 568 (Mo. 1966)   Cited 20 times

    We must take the record as it comes to us and it cannot be supplemented by extraneous matter not found in the transcript nor conceded by adverse counsel. Eaves v. Wampler, Mo.App., 390 S.W.2d 922; Baker v. Missouri National Life Ins. Co., Mo.App., 372 S.W.2d 147. Since the only point relied on by plaintiffs to support the granting of the new trial is one which we are precluded from considering, it follows that the action of the trial court cannot be sustained.

  5. Kratzer v. King

    401 S.W.2d 405 (Mo. 1966)   Cited 12 times
    In Kratzer we ruled the exclusion of the testimony of a highway patrolman that when the two cars collided they left debris at the point of collision not error as against an objection that "this is a subject of expert testimony," citing Hamre v. Conger for the rule that this is not a proper subject for expert or opinion evidence.

    our seconds to reach the east edge of East Street. Appellant was traveling at 30 feet per second (20 m. p. h.) and, at the beginning of the 4-second time period, would have been 120 feet south of the south edge of Clinton Street, a distance well within that in which she could see traffic on Clinton Street for at least the 60 feet mentioned. Under such circumstances, the question of appellant's contributory negligence was for the jury because a jury reasonably could find that had appellant looked and applied her brakes she could have stopped her truck within that 120 feet plus the 17' width of the south half of Clinton Street, or slackened her speed sufficiently to let respondent pass from appellant's right through the intersection without collision; likewise, the jury reasonably could infer that a warning at that time would have alerted respondent and that she could have stopped or slowed sufficiently to permit appellant to pass ahead. See Elliott v. Wescoat, Mo., 336 S.W.2d 649, 652; Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 930[17, 18]; Loyd v. Moore, Mo.App., 390 S.W.2d 951, 956[9]. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 607[10].

  6. Rogers v. Hester

    334 S.W.3d 528 (Mo. Ct. App. 2011)   Cited 34 times
    Dismissing points relied on that included multiple allegations of trial court error

    The court stated that Hemann's argument was more similar in effect to the arguments distinguished from Hoffman in Chailland v. Smiley, 363 S.W.2d 619, 629 (Mo. banc 1963), and Eaves v. Wampkr, 390 S.W.2d 922, 929 (Mo.App. 1965); that is, "when considered in light of the entire record, the argument briefly commented on the fact that [p]laintiffs medical evidence was uncontroverted, a permissible argument, and it did not amount to prejudicial error."Id. (footnote references omitted).

  7. State v. Overkamp

    865 S.W.2d 376 (Mo. Ct. App. 1993)   Cited 3 times

    In light of Defendant's testimony he had observed the farmer pull out onto the road when he was 500 to 1000 feet from him, sufficient evidence exists to show Defendant failed to keep a proper lookout. See, McCarthy v. Wulff, 452 S.W.2d 164, 168-69 [8, 9] (Mo.App. 1970) (court may take judicial notice a motor vehicle travelling 50 to 55 miles per hour can be stopped within 350 to 400 feet); Eaves v. Wampler, 390 S.W.2d 922, 930 [17, 18] (Mo.App. 1965) (judicial notice a motor vehicle travelling 45 to 50 miles per hour may be stopped within 300 to 350 feet). Point denied.

  8. State v. Manning

    612 S.W.2d 823 (Mo. Ct. App. 1981)   Cited 23 times

    While we cannot take judicial notice of the exact distance within which a particular automobile may be stopped under given conditions, we do note the limits above within which a stop can be made. Eaves v. Wampler, 390 S.W.2d 922, 930 (Mo.App. 1965). The above figures assume reasonably good tires which appellant knowingly did not have.

  9. Cope v. Thompson

    534 S.W.2d 641 (Mo. Ct. App. 1976)   Cited 4 times

    Witness Don Cope offered experimental testimony from which it reasonably might have been inferred that, if defendant had been traveling no faster than 60 miles per hour when he sighted the Cope automobile, he could have brought his Plymouth to an absolute stop well within the 204 feet which, in the most favorable view of the evidence from plaintiff's standpoint, was available for braking action after the lapse of reaction time. And, since an appellate court may take judicial notice of the limits, although not the precise distance, within which an automobile may be stopped under given conditions [ Jones v. Fritz, 353 S.W.2d 393, 396-397(5) (Mo.App. 1962); Highfill v. Brown, 340 S.W.2d 656, 664(10) (Mo. banc 1960); Nelms v. Bright, 299 S.W.2d 483, 490(17) (Mo. banc 1957); Eaves v. Wampler, 390 S.W.2d 922, 930(17) (Mo.App. 1965), we reasonably might be permitted judicial knowledge that, under the conditions shown in evidence, defendant's Plymouth moving at 60 miles per hour could have been braked to a stop within a distance of 204 feet. See Autrey v. Swisher, 155 F.2d 18, 21-22(7) (5th Cir. 1946); State v. Arena, 46 Hawaii 315, 379 P.2d 594, 609-610(20), 20 A.L.R.3d 450 (1963).

  10. Shelton v. Bruner

    449 S.W.2d 673 (Mo. Ct. App. 1969)   Cited 39 times

    wledge as to the exact distance within which those vehicles could have been stopped under the circumstances existing at the time and place of accident; and any effort to probe the hazy, undelineated area of professed judicial knowledge as to the limits within which the drivers could have stopped their vehicles would be fatuous and vain because, even if (contrary to our announced determination) defendant might have seen plaintiff's Chevrolet somewhat sooner than he did, nevertheless the record affords and plaintiff's counsel suggest no basis whatever for a determination of the intervening distance between the automobiles at that time, and thus no support for a finding, essential to submission of failure to keep a careful lookout, that defendant could and should have seen plaintiff in time thereafter to have taken effective precautionary action. Perry v. Dever, Mo., 303 S.W.2d 1, 7 (14); Nelms v. Bright, Mo. (banc), 299 S.W.2d 483, 490(17); Mallow v. Tucker, Mo., 281 S.W.2d 848, 851(4); Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 930(17). Plaintiff assumed the burden of showing a causal connection between the submitted negligence, i. e., failure to keep a careful lookout, and the injury sustained [Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91, 94(4); Smith v. Seven-Eleven, Inc., Mo.App., 430 S.W.2d 764, 770; Prosser on Torts (2nd Ed.), ยง 44, l.c. 222], such that the injury would not have happened but for the negligence.