author: DOERNER, Commissioner.

text:
    Claude SMITH, Plaintiff-Appellant, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, Defendant-Respondent.
    No. 30895.
    St. Louis Court of Appeals. Missouri.
    May 15, 1962.
    Motions for Rehearing and to Transfer Denied Sept. 11, 1962.
    Lyng, MacLeod, King, Donnelly & Cor-coran, Russell N. MacLeod, St. Louis, F. Daley Abels, Clayton, for plaintiff-appellant.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff sought to recover damages for personal injuries claimed to have been sustained in a collision between a truck being driven by plaintiff and one of defendant’s passenger trains. Following an adverse verdict and judgment below, plaintiff appealed.

The locale of the collision was on First Street, a north-south street, in the City of St. Louis, north of its intersection with Biddle Street. There were a number of tracks in the area, some of which were on the paved portion of First Street, but the track here involved ran along the east side and the unpaved part of that street. The tracks were straight and level from a point south of Biddle Street to another considerably north of the place where the collision occurred. About 100 to 175 feet north of Biddle Street a paved crossing extended across the tracks, leading from the paved portion of First Street to the parking lot of the Booth Cold Storage Company, situated east of the tracks. The volume of vehicles leaving the premises of that concern, as well as the train traffic, was such that the Booth Company maintained a watchman at the crossing to assist vehicles to depart. It was admitted without contradiction that the watchman’s duties did not embrace helping incoming vehicles.

The collision occurred on November 8, 1955, about 4:30 P.M. The weather was clear and it was still daylight. Shortly pri- or to that time one of defendant’s southbound trains had been stopped so that the rear of the train blocked approximately the south half or 25 feet of the Booth crossing, leaving the north half open. Plaintiff, driving a 1954 International panel truck on his way to the C & S Company located in the Booth Company building, proceeded east on Biddle, turned left on a “cut-off” from Biddle to First, and drove north on First on the west side of the stopped train until he reached its rear end. Plaintiff’s testimony was that he made a turn to his right, around the rear end of the halted train, and came to a stop. He looked to his left and saw nothing approaching. He could not see southwardly down the set of tracks involved, located to the east of the stopped train, because the train obstructed his view. Plaintiff put the truck in low gear and started to creep forward. Because of his distance back from the bumper, the front end of the truck was in the middle of the northbound rails before he could see to the south down the tracks. He then saw a train approaching from the south, which was approximately 75 feet away, going at a speed he estimated at 10 to 14 miles per hour. Plaintiff immediately put the truck into reverse, started backing up, and had almost gotten clear of the track when the train struck the vehicle at its right front wheel. Plaintiff testified that he did not hear any whistle, bell or horn prior to the collision.

Defendant’s engineer, Belz, testified that he was on the right side of the cab of the engine, and that the nose of the engine cut off his view of anything to the left of the tracks which was closer than 70 or 80 feet. He did not see plaintiff’s truck prior to the accident. The first he knew of the impending collision was when the fireman, Bates, told him “stop her.” At that time the cab was 15 or 20 feet over the Booth crossing, and his train was traveling 8 to 10 miles per hour. He set the brakes and stopped the train as soon as he could. When it came to rest the front of the first of the two diesels was about 80 to 90 feet north of the crossing. Belz stated that as he approached the area he had the train bell on automatic, so that it rang constantly, and that he sounded the whistle for the Booth crossing.

Bates, the defendant’s fireman, testified he was keeping a lookout forward from the left side of the cab. He said that just as the engine entered the Booth crossing he saw plaintiff’s truck come out from behind the stopped train, and that the truck ran into the left front side of the engine. Bates hollered for the engineer to stop.

William F. Alexander, the watchman employed by the Booth Company, testified on behalf of defendant that he was standing on a switch track, slightly closer than 8 feet to the track involved, and at a point about even with the middle of the Booth crossing. He saw plaintiff’s truck as it started around the rear end of the stopped train. Knowing that the northbound train was approaching, he hollered at plaintiff to stop and waved at plaintiff to get back. Alexander said the front of plaintiff’s truck was on the northbound tracks when the train hit it. He did not know where the train was when he first saw the truck, could not estimate the speed of plaintiff’s vehicle, and didn’t know whether a bell was ringing or a whistle blowing.

Plaintiff testified on cross-examination that he was aware a watchman was maintained at the Booth crossing, to help outgoing traffic. He said that he saw Alexander at the same instant that he observed the approaching train; and that Alexander was not standing in the middle of the crossing but even with the end of the parked train so that he couldn’t see Alexander until he was a little past the train. Belz, the engineer, testified that as he approached the crossing he saw Alexander waving as though he was trying to stop someone. He said that after seeing Alexander he didn’t reduce the speed of the train. Belz also testified on cross-examination that if there had been anything to have stopped for, when he was at the Biddle Street crossing, he could have stopped the train before it reached the Booth crossing. Bates testified on direct examination that as the train approached the Biddle Street crossing he saw Alexander “ * * * giving some signal * * Upon request he demonstrated the motion Alexander had made and stated “ * * * It could have been a highball or stop * * On cross-examination he reiterated that he couldn’t tell what kind of signal Alexander was giving, and that he didn’t say anything to the engineer until he saw plaintiff’s truck.

In view of the limited issues raised, a statement of the evidence regarding plaintiff’s injuries is unnecessary.

Plaintiff submitted his case to the jury under the humanitarian doctrine on defendant’s negligent failure to stop, slacken speed, or warn. No claim is made by defendant that plaintiff failed to make a submissible case. At the request of the defendant the court gave instructions numbered 5, 6, 7, 8 and 9. Plaintiff’s only points on appeal are that Instructions 5 and 6 were erroneous and prejudicial.

Instruction No. 6 follows:

“You are further instructed that if you find and believe from the evidence that on the occasion in question as plaintiff drove the truck around the rear of the stopped train there was a crossing watchman who was in plaintiff’s view and who warned plaintiff back, and that the approaching train was sounding a warning and if you further find that by the exercise of ordinary care under the circumstances plaintiff could have seen such watchman, or that plaintiff could have heard such warning of the approaching train, in time to have stopped his truck in a place of safety, then you are instructed that if you find that plaintiff drove his truck forward onto the tracks in front of the approaching train and that in so doing he did not act with reasonable care, then you are instructed that plaintiff was negligent and if you find that his negligence was the sole cause of the collision and that defendant by the exercise of reasonable care could not have avoided the collision after plaintiff came into a position of imminent peril, then plaintiff is not entitled to recover from defendant and your verdict shall be in favor of defendant, Gulf, Mobile and Ohio Railroad Company.”

Plaintiff criticizes Instruction No. 6 on several grounds, among them being that the issue of plaintiff’s antecedent and contributory negligence was thereby injected into the case. In a case submitted solely on the humanitarian doctrine, it is improper for a defendant to inject the issue of plaintiff’s antecedent and contributory negligence into the case by his instructions. Fisher v. Williams, Mo.Sup., 327 S.W.2d 256; Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483. Instruction No. 6 begins with the hypothesization that there was a watchman at the crossing, in plain view, who warned the plaintiff back; that the train was sounding a warning; and that by the exercise of ordinary care plaintiff could have seen the watchman or heard the warning from the train in time to have stopped his truck in a place of safety. Such a submission could only refer to plaintiff’s antecedent negligence, as did the sole cause instruction held to be erroneous in Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743. Defendant contends that the Instruction No. 6 is similar to instructions approved in Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461 and Parmley v. Henks, Mo.Sup., 285 S.W.2d 710. An examination of the instructions approved in those cases discloses that in both the factual situation hypothesized was that plaintiff proceeded into a position of imminent peril so closely in front of an approaching vehicle that the defendant thereafter was unable to avoid injuring plaintiff. The facts submitted in the instant case that “ * * * plaintiff drove his truck forward onto the tracks in front of the approaching train * * *, tended only to show that a position of imminent peril came into existence, imposing a duty upon the defendant to act. Thayer v. Sommer, Mo.Sup., 356 S.W.2d 72, April 9, 1962.

Under defendant’s theory of the case the issue for decision was whether plaintiff drove his truck onto the tracks so closely in front of defendant’s train that the defendant could not thereafter, by the exercise of ordinary care, have stopped its train or slackened its speed to avoid the collision. However, as the instruction was drawn, the jury was told that if it found that plaintiff did not act with reasonable care in driving his truck onto the tracks in front of the approaching train “ * * * then you are instructed that plaintiff was negligent * * *_» It jjas been repeatedly held that 'when the defendant contends that the acts of the plaintiff (as distinguished from those of a third party) were the sole cause of plaintiff’s injuries, such acts should not be characterized as negligent. Sheerin v. St. Louis Public Service Co., supra; Carney v. Stuart, Mo.Sup., 331 S.W.2d 558; Thayer v. Sommer, supra. Under the humanitarian doctrine negligence or non-negligence of the plaintiff is beside the point. Sheerin v. St. Louis Public Service Co., supra. To characterize the plaintiff’s acts as negligent acts, or to submit to a jury the issue of whether plaintiff’s acts were negligent “ * * * is likely to mislead the jury into believing or allowing contributory negligence as a defense,” Thayer v. Sommer, supra, 356 S.W.2d p. 79. The effect is to distract the attention of the jury from the legal issue of defendant’s negligence and to direct it to the false issue of plaintiff’s negligence. Sheerin v. St. Louis Public Service Co., supra; Thayer v. Sommer, supra. And as stated in Sheerin v. St. Louis Public Service Co., 300 S.W.2d 483, 489, 490: * * * The courts have long since condemned such instructions by consistently holding them to be prejudicially erroneous. * * * ”

Since the case must be retried, and defendant will have an opportunity to redraft Instruction No. 5 to obviate the asserted errors, it is unnecessary for us to consider that instruction.

For the prejudicial error in the giving of Instruction No. 6 the judgment should be reversed and the cause be remanded for a new trial. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, judgment is reversed and the cause remanded for a new trial.

ANDERSON, P. J., WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Irene Agnes DUPREE, Plaintiff-Appellant, v. A. J. DUPREE, Defendant-Respondent.
    No. 31067.
    St. Louis Court of Appeals. Missouri.
    July 17, 1962.

      See also 357 S.W.2d 241.
    Frank Mashak, St. Louis, for plaintiff-appellant.
    William L. Weiss, William L. Mason, Jr., St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an ancillary proceeding to the case of Dupree v. Dupree, No. 30,959, decided by this court on May 15, 1962, to which reference is made for a statement of the basic issues in dispute. For the purpose of prosecuting her appeal in that case plaintiff by an appropriate motion sought the allowance of suit money of $152 and an attorney’s fee of $350. After a hearing the court sustained plaintiff’s motion and ordered defendant to pay plaintiff $150 for suit money and $200 for an attorney’s fee. Being dissatisfied with the latter amount, plaintiff appealed.

The sole contention made by plaintiff on appeal is that the amount allowed by the trial court for an attorney’s fee was so inadequate as to amount, in her words, to “ * * * a Palpable Abuse of Judicial Discretion.”

Plaintiff testified that she was employed at a net salary of $62 a week, and that the defendant paid her $17 a week for the maintenance of their 12 year old daughter. She also testified that their living expenses amounted to $320 a month, which figure included the cost of operating plaintiff’s automobile used in going to and from work, as well as installment payments of $48 a month on certain debts. Plaintiff called as a witness on her behalf Robert J. Gillon, Chief Timekeeper at the plant where defendant was employed, who stated that the defendant’s rate of compensation was $2.83½ an hour, and that defendant’s normal wages were $84.60 net per week. It further appeared from the testimony of this witness that the defendant’s net earnings from December 26, 1960 to July 9, 1961, (five days before the hearing) were only $1734, but that defendant had lost several weeks work during that period, for which he received an unstated amount of insurance benefits. Plaintiff also called defendant as her witness. He testified that he had remarried, and that his present wife was employed at a salary of $85 a week net. Whether she contributed anything towards their household expenses, and if so, what amount, was not developed in the evidence. On examination by his own counsel defendant related that the payments on his home were $78.37 per month, that on his automobile $65, that the taxes on his house were $180 a year, and that his insurance cost $245 a year.

Mr. Frank Mashak, counsel for plaintiff, testified that the cost of the transcript in the companion case, as determined by the reporter, would be $40, and estimated that the brief would run at least 30 pages, at a cost per page of $3.50 plus $7 for the cover, or a total of $112. An examination of our file in the companion case reveals that in fact the brief contained only 18 pages, which at the rates mentioned should have cost $70. Mr. Mashak also estimated that his preparation of the brief would require not less than 35 hours, and stated that in his opinion a charge of $10 an hour, or $350, would be a fair and reasonable fee under all the circumstances. Senator Milton Napier, a practising attorney, called as an expert witness, likewise expressed the opinion that a charge of $10 an hour would be fair and reasonable.

There is no dispute between the parties as to the law which governs matters of this kind. As was held in one of the cases cited by plaintiff, Shepard v. Shepard, Mo.App., 194 S.W.2d 329, it is not an abuse of judicial discretion for the court to refuse to make any allowance to the former wife when their financial circumstances are relatively equal. It has likewise long been the rule in this state that the amount of an allowance, where one is made, rests within the discretion of the trial court, Gross v. Gross, Mo.App., 319 S.W.2d 880; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71; and that an appellate court will not interfere with the exercise by the trial court of its discretion unless it has been manifestly abused. State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S.W. 342; Gross v. Gross, supra; Wonneman v. Wonneman, supra. In the light of the foregoing evidence, we see no reason for interfering with the discretion exercised by the trial court in this case.

Accordingly, the Commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, judgment is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


author: WOLFE, Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Plaintiff), Respondent, v. RAWLINGS MANUFACTURING COMPANY, a Corporation, William Quigley and Richard E. Harder (Defendants), Richard E. Harder, Appellant. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Plaintiff), Appellant, v. RAWLINGS MANUFACTURING COMPANY, a Corporation, and William Quigley (Defendants), Respondents.
    Nos. 30943, 30944.
    St. Louis Court of Appeals. Missouri.
    June 19, 1962.
    Rehearing Denied Sept. 11, 1962.

      John Mohler, Leo E. Eickhoff, Jr., Wm. C. Sullivan, Murry L. Randall, St. Louis, for appellant Southwestern Bell Tel. Co.
    Wm. J. Becker, Clayton, for appellant Richard E. Harder.
    Aubrey B. Hamilton, St. Louis, for respondent Wm. Quigley.

      J. C. Jaeckel, St. Louis, for respondent Rawlings Mfg. Co.
   WOLFE, Judge.

This is a suit to recover damages that the plaintiff sustained when its underground cables were caused to fall into an excavation made by a contractor employed by the Rawlings Manufacturing Company. The action is against Rawlings Manufacturing Company as employer, Quigley as its agent, and Harder as an employee making the excavation. There was a verdict and judgment for the plaintiff against all three defendants in the sum of $5,4C0.

The Southwestern Bell Telephone Company and William Quigley filed motions for a judgment in accordance with their motions for a directed verdict or, in the alternative, for a new trial. Richard Harder moved for a new trial. Harder’s motion for a new trial was overruled and he appealed. The motion of Rawlings Manufacturing Company and Quigley’s motion for a judgment on the pleadings were sustained and a judgment entered for them. From this the Southwestern Bell Telephone Company appealed. Both defendant Harder’s appeal and the appeal of the plaintiff, Southwestern Bell Telephone Company, are herein considered.

The petition alleges that plaintiff had underground telephone conduits and cables in a public alley which adjoined the property of the Rawlings Manufacturing Company. The cables had been there since 1905 and were placed under the surface of the alley with the permission of the City of St. Louis. The Rawlings Manufacturing Company, in excavating for a basement on its own property, extended its excavation for three feet into the public alley, and the depth of the excavation was from 15 to 18 feet. The petition alleges that no permit was obtained from the Director of Streets'and Sewers as required by Section 9 [Ordinance 30386], Section 92 [Ordinance 41298] of the Municipal Code of the City of St. Louis. It also alleges that the excavation was not braced or shored, in violation of Section 95 [Section 2321, Chapter 32, Article V, Revised Code 1936] and Section 107 [Ordinance 36721], Chapter 64 of the Code.

It alleges that Harder and Quigley were the agents and employees of the Rawlings Manufacturing Company, and that all of the defendants, in the exercise of ordinary care, should have known of the presence of the plaintiff’s cables in the alley. The petition charges that Rawlings Manufacturing Company negligently failed to obtain a permit from the City of St. Louis as required by two of the ordinances pleaded. Quigley is charged with the same negligence, and Harder is charged with excavating without first determining if a permit had been obtained. The Rawlings Manufacturing Company is charged with the failure to require Harder to shore, and brace the sides of the excavation, and Harder is charged with the failure to shore and brace the sides.

The defendant Rawlings Manufacturing Company, by their answer, denied that Quigley and Harder were their agents, and Quigley denied by his answer that Harder was his agent. Harder’s answer was in the nature of a general denial.

The facts of the matter are that the Rawlings Manufacturing Company desired to erect an addition to buildings that they occupied in 1950. Architects were employed, and they prepared plans for a building 43 feet x 117 feet. On the north sjde of the building it was to extend 117 feet along a public alley. The west side of the building fronted on Jefferson Avenue for 43 feet, and to the south and east the new structure adjoined the existing buildings belonging to the Rawlings Manufacturing Company.

The plans called for an excavation under the proposed building and extending into a public alley upon which the Rawlings property line abutted. This “overdig” was for foundation footings which were to be put in.

The plaintiff introduced in evidence the following agreement entered into between the Rawlings Manufacturing Company and J. Wm. Quigley:

“J. WM. QUIGLEY CONSTRUCTION CO.
“General Repairing
"\
“4625 Kossuth Avenue
“St. Louis 15, Mo.
“July 10, 1950
“Rawlings Mfg. Co.,
“2703 Lucas Ave.
“St. Louis, Missouri
“Gentlemen:—
“I propose to act as General Contractor and to supervise North Addition to Rawlings Manufacturing Company, as follows:—
“Obtain all sub-contractors’ bids
“Select bidders best suited to perform the work
“Supervise all forms of construction and installations
“Obtain all licenses and permits pertaining to the work
“Erect temporary office and tool shed
“Stake out the job
“See that all material delivered on site is stored in the most convenient place and protected from the weather
“Give all lines, levels and grades to sub-contractors
“Lay out sub-contractor’s work as building progresses
“Supervise all rough carpenter work and finish carpentry
“See that all crafts carry out their portion of the work in the best workmanlike manner, according to plans and specifications by Brussel and Viterbo, Engineers
“Settle any discussions or disputes that may arise between sub-contractors due to conflicting work
“Supervise all wrecking of rear walls of building
“Supervise protecting of working area of building when north wall is removed
“See that all sub-contractor’s work is properly protected, such as covering of window jams, door jams, stone sills, etc., and that all well holes and stair ways are barricaded
“I shall spend as much time as is necessary to expedite construction of North Addition to the Rawlings Manufacturing Company, this supervision time to be a minimum of four (4) hours per day while work is in progress, for a fee of 10% (ten percent) of total cost of the above mentioned addition; fee to be payable monthly as work progresses.
“(signed) J. Wm. Quigley
“JWQ:G
“Accepted July 10, 1950
“R. M. Co. — by O. D. Schnaare
“Sec.’’

The plaintiff also introduced in evidence a letter signed by Richard E. Harder and addressed to J. Wm. Quigley Construction Co., as follows:

“RICHARD E. HARDER CONTRACTING CO.
“1518 Sulphur Avenue
“St. Louis 10, Mo.
“July 13, 1950
“J. Wm. Quigley Construction Co.,
“4625 Kossuth Ave.,
“Saint Louis, Missouri
“Subject: Rawlings Co., Addition
“Dear Sir:
“We propose to furnish the necessary equipment and labor for excavating the addition to the present building. This proposal includes all machine excavation, hand excavation, underpinning, removal of present concrete areaway, all back-filling, and replacing alley in rear where overdig occurs, according to plans shown me by you. This bid also includes bracing of bank along the alley and Jefferson Ave. side.
“Basement is to be overdug approximately three feet.
“We will do the above mentioned work for the sum of (six thousand three hundred nineteen dollars and twenty five cents) $6319.25
“Yours truly,
“Richard E. Harder Contracting Co.
“(signed) Richard E. Harder
“In strict accordance with drawings dated June 20th, 1950 and specifications therefor prepared by BRUSSEL & VITERBO ENGINEERS, as per set initialed by J. Wm. Quigley, which is to remain of record with Rawlings Manufacturing Co.
“July 18th, 1950 (signed) Richard E. Harder
“By (signed) J. Wm. Quigley
“Rawlings Manufacturing Company
“By (signed) O. D. Schnaare
“Secretary”

Mr. Schnaare, who was employed by the Rawlings Company in 1950, testified that after the plans were completed the company entered into the above contract with Mr. Quigley, and that Quigley selected the subcontractors, which were approved by ■ the architects and paid by the company.

Quigley had submitted the plans showing the “overdig” to the Building Department for the City of St. Louis and had obtained a building permit. This was the only permit applied for in connection with the work. About two weeks after the contract with Harder was signed he started the excavation.

In 1903 or 1904 the Kinloch Telephone Company had installed what was described as a multi-tile conduit in the alley in question. This installation had been made with the permission of the City of St. Louis. The conduit contained four tile ducts through which the lead-covered cables could be run. Three of the four ducts had cables running through them, and the fourth was empty. These tiles, which were laid in sections, were encased in concrete after they had been laid. The concrete covered the ducts containing the cables and was about eighteen inches below the surface of the alley, which was paved with brick. These conduits below the surface ran parallel to the Rawlings property line and about three feet four inches from that line. The concrete casing was fourteen inches wide and seventeen inches high. The Southwestern Bell Telephone Company had acquired all of the property of the Kinloch Telephone Company.

Mr. Schnaare testified that in 1946 a survey had been made of the Rawlings property and the streets and alley upon which it abutted. The survey was offered in evidence, and it showed gas and water lines under the streets but it showed nothing in the alley except a brick sewer on the far side of the alley from the defendant’s property.

As the work progressed the sides of the concrete covering of the conduit came into view near the top of the excavation. The concrete strip was observed by Quigley and Harder, but they did not know what it was. The conduits remained undisturbed near the top of the side until August 27. At that time part of the wall or side of the excavation caved in and the conduit above the cave-in fell. As it fell it pulled the rest of the conduit with it down into the excavation.

There was evidence that excavation to the depth dug should have been braced to prevent the wall from caving. To the contrary defendant Harder testified that bracing was unnecessary as the ground was hard. He testified that the cave-in was caused by heavy rains.

The cables served to connect two downtown exchanges and some municipal exchange connections. This service was cut off by the fall of the conduit, and the conduit itself was rendered useless. There was evidence of the damage that plaintiff suffered by reason of this, and such evidence will be set forth in a discussion of the point in relation to its sufficiency.

The plaintiff introduced four city ordinances, over the objection of the defendants. Ordinance 36721 has to do with removing the lateral support of a public street or alley by excavation along the side of such street or alley. Ordinance 41298 requires that a permit be obtained for excavating in a public alley or street and requires a deposit to assure that the street will be returned to a proper condition after the excavation has been made. Ordinance 30386 makes unauthorized obstruction, excavation, et cetera in a public street or alley a misdemeanor and prescribes punishment for its violation. Chapter XXXII, Article V, Section 2321, Revised Code 1936, City of St. Louis, provides the manner in which excavated material must be removed and that excavations shall be done in such a way as to not inconvenience the public.

As stated, the jury returned a verdict for the plaintiff against all of the defendants, and the court sustained an after-trial motion for a judgment for the defendants Rawlings Manufacturing Company and William Quigley.

We consider, first, the appeal of the Southwestern Bell Telephone Company, which, of course, was directed to the court’s action in entering a judgment for the two defendants, Rawlings Manufacturing Company and Quigley. The question of their liability hinges upon whether or not Harder, who did the actual excavating, was their servant for whose negligence they were liable, or an independent contractor for whose negligence they were not liable.

The appellant Telephone Company maintains here that Rawlings Manufacturing Company is liable because they were engaged in a trespass, and that by reason of this it does not matter what the status of Harder may have been. This is asserted as being based upon the rule that one cannot escape liability for an unlawful act by employing an independent contractor to do it. Williamson v. Fischer, 50 Mo. 198. See, also, Press v. Penny & Gentles, 242 Mo. 98, 145 S.W. 458. This would of course include a trespass if it were directed by the employer. Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077.

It is asserted that a trespass was directed by Rawlings Manufacturing Company. This is advanced for the first time on .appeal, as the case was submitted to the jury only upon the negligence of the defendant’s agents in failing to shore up or brace the excavation. We fail to find any evidence of trespass being directed, but if it were present it could not be considered, for it is foreign to the theory upon which the case was tried and submitted.

It is asserted that Rawlings had a non-delegable duty to avoid causing damage to plaintiff’s property. It is an established rule that an employer of an independent contractor is not liable for the torts of the contractor or his servants. There is an exception to this where the work, during its progress, creates a peculiar risk of bodily harm to others unless special precautions are taken. If the risk is such that it should be recognized by the employer and personal injury results to a third party by reason of the contractor’s failure to take necessary precautions, then the non-dele-gable duty is imposed and the employer held liable. Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718. No such situation is here present. The relationship of an independent contractor existed between Rawlings Manufacturing Company and Quigley and Harder, and no evidence presented in any way brings into play exceptions which would make Rawlings Manufacturing Company liable for the omissions, if any, of the contractors. Williamson v. Southwestern Bell Telephone Co., Mo.Sup., 265 S.W.2d 354; Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758.

As for Quigley, his position was that of a general contractor charged with sufficient control over the work to see that it was done according to the plans furnished by the architects. He had no control over Harder’s employees, their payment, or the method of excavating. The fact that Quig-ley exercised a certain measure of control does not remove Harder from his status as an independent contractor and make him Quigley’s agent. Quigley cannot therefore be held, under the doctrine of respondeat superior, for Harder’s acts or omissions. Williamson v. Southwestern Bell Telephone Co., Mo.Sup., 265 S.W.2d 354, l. c. 358; Dulley v. Berkley, Mo.Sup., 304 S.W.2d 878; Wilkey v. Rouse Const. Co., 224 Mo.App. 495, 28 S.W.2d 674; McGrath v. City of St. Louis, 215 Mo. 191, 114 S.W. 611.

As for the ordinances and any permit required by them, there is no causal connection shown to be related to the ordinances and the damage suffered. If a permit had been obtained, it is certain that this would not have prevented the wall from caving, and neither is there any showing that such a permit would have revealed the presence of the cables. In fact, it is stated in the appellant Southwestern Bell Telephone Company’s reply brief: “The liability of the defendants is not predicated upon a breach of a duty created by the City Ordinances. Their liability was based upon a breach of their common law duty to refrain from conduct of a character likely to cause injury to plaintiff’s property without just cause or excuse.”

For the reason stated we see no theory upon which Quigley could be held liable.

As to Harder’s appeal, he does not question the sufficiency of the evidence to make a case against him. He knew from his experience in excavation work that there were underground installations of various utilities in the alleys and streets of St. Louis. He stated that the telephone conduit was exposed for about three weeks before it caved in. Harder did not know what it was, but he made no inquiry of the Telephone Company to find out if it was a conduit. He did not brace the face of the excavation. He stated that in the matter of shoring and bracing he was the one who decided whether or not it should be done, and that he was not instructed by any one in relation to it.

Harder does contend that the court erred in submitting the case to the jury on common law negligence. He states that this was a departure from the pleadings which charged a violation of the ordinances mentioned. In State v. Mayfield, 365 Mo. 238, 281 S.W.2d 9, the Missouri Supreme Court held that ordinances may be pleaded where they might make applicable a common law rule of liability, and this is apparently what the plaintiff sought to do by its petition. In the case of State v. Mayfield, supra, the court clearly stated that it was dealing only with the sufficiency of the petition. It went on to say that the question of causation and applicability of the ordinance was a matter to be determined at the trial. As we stated, the ordinances here appear to have no application to the occurrence complained of or any causal connection with it. We therefore hold that it was error to permit their introduction into evidence.

Some objections are raised as to the proof of damages, but there is no contention that the amount of $5,400 is excessive. It is contended that the proper measure of damages was not the cost of repairing the cables, but the difference between their value before and after the occurrence. If this measure had been used, there was evidence upon which the jury could have found damages in the sum of $87,221.45. Where repairs can and are effected and they are less than the difference in value before and after damage, then the cost of repairs is the measure where such repairs completely restore the damaged article to its former condition. Conner v. Aalco Moving & Storage Co., Mo.App., 218 S.W.2d 830. The proof of the cost of such repairs was made from the books of the plaintiff company, and we find no error in connection therewith.

For the reasons stated, the judgment of the trial court in favor of defendants Rawlings Manufacturing Company and Quigley is affirmed; and the judgment against Harder and in favor of the plaintiff is reversed and remanded for a new trial as to this defendant on the issue of liability only.

ANDERSON, P. J., and ELGIN T. FULLER, Special Judge, concur.


text:
    Floyd JETT, Employee, Appellant, v. CHAIN OF ROCKS AMUSEMENT PARK, Employer, and London Guarantee and Accident Company, Insurer, Respondents.
    No. 30894.
    St. Louis Court of Appeals. Missouri.
    July 17, 1962.
    Rehearing Denied Sept. 11, 1962.
    Vernon C. Oetting, Ernest L. Keathley, St. Louis, for appellant.
    Fred B. Whalen, Whalen O’Connor & Grauel, St. Louis, for respondents.
   DOERNER, Commissioner.

This claim for compensation under our Workmen’s Compensation Act was filed by the employee, Floyd Jett. The referee who heard the claim and the Industrial Commission on review found against the employee and a final award was entered denying compensation. On appeal the Circuit Court of the City of St. Louis affirmed the final award and the employee appealed to this court.

In 1958, arid for some years prior thereto, the employee was employed during the summer season by the employer, Chain of Rocks Amusement Park, as the operator of a ride known as a “swooper.” In his claim the employee alleged that on July 26, 1958, he slipped while ascending some steps inside the ride enclosure, injuring his right ankle and leg, which aggravated a pre-existing osteomyelitis of the right leg and necessitated the amputation of that member above the knee. The employer and insurer by their answer denied the occurrence of any accident, denied that the employee had sustained an accidental injury, and denied that the amputation was necessitated by or connected with any accidental injury. As an additional defense they also alleged that the employee had failed to give the notice required by Section 287.420 of the Act.

At the hearing the employee testified that he developed osteomyelitis in his right leg below the knee in 1929, when he was 12 years old, following an accidental blow with the hammer. He testified that shortly thereafter the leg began to drain, and that from that time on, until the amputation in 1958, it would alternately heal and drain. He stated that the leg had not incapacitated him from working, and that he had performed hard manual labor of various kinds all of his life. In describing the accident he testified that about 3:30 or 4:00 P.M., on July 26, 1958, while ascending the steps of the ride, his left foot slipped, causing him to pitch face forward and to slide down the three steps on his stomach. His right ankle and the middle of his right shin struck the steps, causing the ankle to be bruised and the shin to be skinned. He said that he had been in the rest room at 1:00 P.M. and that his leg had not been draining at that time, but that immediately following his fall, “I got up and started to walk and I could feel it oozing out.” From that time on until the amputation, he claimed, it continued to drain. He said that he worked the balance of that day, and also the next day, although his leg was swollen and hurting him, and continued to work off and on until August 10, when he couldn’t get out of bed. He rubbed liniment on his leg, and on August 13 he went to the clinic at City Hospital. Asked what the condition of his right leg was on that day he replied that “It was swollen up and running,” and that he was using crutches because he wasn’t able to stand up and support his weight without their aid.

On cross-examination the employee testified that his right leg had been bowed ever since the osteomyelitis developed in 1929. He admitted that on the day of the accident he had bandages on it, although it was healed at the time, and explained that he wore them because he never knew when the leg would open and start to drain. He was operated on at Barnes Hospital in 1936, and the leg stopped draining, but after about a year it opened up again. He stated that after 1945 the leg stopped draining “One or two times,” but that he couldn’t remember when. Later he stated that it drained off and on, but the better part of the time. The employee admitted that as early as 1945 he had been in City Hospital because of his leg, and had been advised at that time that it would be best for him to have it amputated. He acknowledged that when his deposition had been taken, and he was asked whether he had been in the City Hospital in 1939, he answered that he had been in and out of the hospital so many times he didn’t know, and testified at the hearing that he really didn’t know. He recalled that he had entered City Hospital in 1950, because his right ankle had been injured, and that from time to time thereafter, when his leg would swell and pain him, he would obtain pills for the pain and treatment for the swelling at the hospital’s clinic. He also recalled that he had again been a patient in City Hospital in 1957, after he bumped his knee at work. He admitted that on every occasion when he was a patient in the hospital he was advised to have the leg removed and that he refused to do so, because “I wanted to keep it as long as I could.” At one point he stated that the leg began to drain through a second opening in 1950, but he subsequently said that the second drain didn’t open until 1957. He admitted that one hole or spot was getting larger all of the time, and when asked whether the drainage ever stopped and the opening healed after 1957 he replied, “It would check it a lot but it wasn’t all the way healed, no.”

The employee testified that the skinned place on his shin cleared up in two or three days after his fall on July 26, 1958, and that the small bruise on his ankle cleared up in about three days; that there wasn’t any indication on the leg to indicate an injury to his ankle when he went to City Hospital; that while he told Mrs. Trippe, the manager of the Amusement Park, and his foreman, Esposito, that he had fallen at work and hurt his ankle, he never asked either of them to furnish him medical attention; that he didn’t go to a doctor until he went to the City Hospital clinic on August 13 for pain pills because for the preceding three days his leg had been hurting him; that he didn’t know whether or not the injury he received in falling on the steps had any effect on his upper leg; and that he decided to have the amputation in 1958 because his leg was hurting so bad. He was asked on cross-examination :

“MR. WHALEN: When did you first decide that this fall on the steps that you are testifying about, had anything to do with causing your leg to be removed ?
“A. I decided that after I was in the hospital.
“Q. When?
“A. It was after it was cut off. I was laying and thinking, I had a lot of time to think.”

Witness Charles Wade testified that he was also working at the Amusement Park on July 26, 1958, about 20 feet from where the employee was located; that he saw the employee slip and fall on the steps, and assisted him to his feet; that the employee complained that his right leg and ankle hurt him; and that he saw swelling immediately afterwards in the leg and ankle. On cross-examination he stated that all he saw was the employee’s ankle and about 6 inches above it, and that he didn’t know whether the employee was wearing a bandage.

Dr. William H. Grundmann, the employee’s medical witness, described osteo-myelitis as an inflammation of the bone, caused for the most part by a blood borne infection, and a blow at the part of the bone where the osteomyelitis develops. He stated that an osteomyelitis condition could be chronic, that is, stationary, with no continuing progress in the destruction of the bone, even though it continued to drain; or it could be acute, in which the clinical symptoms would be pain, swelling, redness, and increased discharge and disability. A lengthy hypothetical question was propounded to the doctor, in which he was asked to assume, among other facts, that the employee fell and struck his right leg below the knee on July 26, 1958; that his right leg and ankle immediately began to swell, and his osteomyelitis immediately began to discharge; that for 10 days after July 27 the swelling remained and the discharge continued; that because of the increased swelling and pain he was unable to work; that he entered the City Hospital on August 13 and his right leg was amputated the next day; and that the employee had fractured his ankle in 1950 and injured his right knee in 1956, but that no permanent injury resulted from either of those accidents. The doctor stated that assuming that the two prior accidents had not resulted in any permanent disability or injury, “On the basis of the hypothetical question, * * * ” it was his opinion that the last blow would have been the factor which necessitated the amputation. The doctor was not asked to assume that the employee had been advised in 1945, 1950 and 1956 that his leg should be amputated, nor was he asked on cross-examination whether such facts would have altered his opinion. Neither was he asked to assume that x-rays made in 1958 showed an area of rarefaction much more extensive and with many more sequestrum formations when compared with those taken in 1950.

On cross-examination Dr. Grundmann stated that he hadn’t seen the x-rays taken of the employee, and that comparative x-rays were the best means of determining whether the destruction of the bone had progressed during the interval. He admitted that the opening of a second sinus or drain would mean that there had been a progression of the osteomyelitis and that it had probably spread to another area, and that a bowing or deformity of the bone might also indicate the progress of the disease. He also stated that in diagnosing osteo-myelitis as acute the manifestations, in addition to a discharge or increase thereof, would be swelling, pain and disability.

Dr. Justus W. George, a resident in surgery at City Hospital, who performed the amputation of the employee’s leg, was called as a witness by the employer and insurer. He testified that he examined the employee and took a history from him on August 14, 1958. His examination disclosed several open areas just below the right knee which were draining purulent material, that the lower leg was bowed and the limb was one centimeter shorter than the left one, and that the convexity was such that the employee was not walking with a normal gait. Although the employee told him of dislocating his ankle in 1950, and of the recommendation made at that time of amputation, the employee did not tell him of any recent injury, made no complaint of pain, and in his examination the doctor found no evidence of any recent injury. At the time he examined the employee he had available to him the records of the employee’s prior hospitalization at City Hospital, including the reports of the x-rays made on May 14, 1950, November 21, 1956, and the x-rays made on August 13, 1958, the day before his examination. The latter x-rays revealed, “Examination of right leg in AP and oblique views to include the knee and ankle joint, reveals the previously described area of rarefaction, sclerosis, and periosteal proliferation involving the proximal 3rd of the tibia. The area of rarefaction compared with roentgenogram of 11-21-56 is much more extensive and many sequestrum formations are noted.” Sequestrums, the doctor explained, were pieces of bone which had been deprived of their supply of blood. He said that the tibia, the weight bearing bone, had been affected by the destructive process to the extent of Yio to ⅛ of its length, and from 30 to 33VS per cent of its thickness, but that there was no osteo-myelitis in the fibula. He diagnosed the employee’s condition as chronic osteomy-elitis of long duration, found nothing to indicate that a recent trauma had caused or aggravated the condition, and in his opinion the condition of osteomyelitis he found had not been brought about by any recent trauma.

The doctor further stated that the employee was examined by other physicians, and that the recommendation that the leg be amputated was made after their evaluation and consultation. He testified that the leg was a viable or live leg, and that there was no urgent emergency which required its immediate removal, but that the amputation was recommended because of the past history of the patient’s trouble, the deformity, and the danger that the infection might spread throughout the employee’s system and deteriorate other organs in his body. The employee told him, in fact, that he had lost 10 pounds in weight in the prior 6 months. He stated that if the employee had chosen not to have had the leg removed the employee could have been walking on it at the time of the hearing, but that he would have continued to have had episodes of drainage. The doctor performed the operation on August 15, 1958.

On cross-examination Dr. George testified that he had no recollection and had no record that the employee complained of pain, or of any recent fall and injury to his leg, and that his recollection was that the employee was able to walk at the time he examined him. He stated that a trauma could reactivate a latent osteomyelitis which had not been draining, and that in his opinion if there had been no drainage prior to the trauma, and a discharge began after-wards, it would indicate that the trauma had reactivated and aggravated the latent osteo-myelitis.

On behalf of the employer and insurer, and by agreement, portions of the City Hospital records were read into evidence. Briefly summarized, they showed that the employee entered the hospital as a patient on May 14, 1950, because of a dislocated ankle suffered from a fall in his home. The history recorded was that the osteo-myelitis began in 1929 following a blow by a hammer; that in 1936 an operation known as a saucerization, in which the diseased bone was removed, was performed at Barnes Hospital. Physical examination made in 1950 showed a large 5 to 6 centimeter ulceration with a foul-smelling purulent discharge present. The radiological examination revealed the angulation or bowing of the right tibia and an old os-teomyelitis. The record showed that at a staff conference held on May 15, 1950, the consensus of opinion was that the leg should be amputated or saucerized, with the final judgment to be made by the patient. On June 3, 1950, after a discussion with Dr. Horwitz, it was decided that the saucerization would have to be so extensive that it might compromise the structural integrity of the tibia. An authorization for the amputation signed by the employee was introduced into evidence, but the hospital record showed that he decided to wait, and that he was discharged to the clinic where the osteomyelitis was to be continually observed. The record of the clinic showed that the employee did not return for observation. The records further showed that the employee was again admitted to the City Hospital on November 21, 1956, with a history of having fallen at work and of hitting his right knee on a brick floor. The physical examination disclosed a swollen, contused, and tender knee, as well as what was described as an old osteomyelitis at the proximal and middle third of the right tibia. The x-ray examination revealed a gross deformity and irregularity of the proximal portion of the tibial shaft and enlargement of the shaft and sclerosis from the osteomyelitis.

The record of the City Hospital’s emergency admitting room, made on August 13, 1958, showed that the employee had been brought from home accompanied by his wife and brother, that he gave a history of having osteomyelitis since 1939 (1929?), that he complained of having had pain in his leg for the prior three days, and that he asked for pain pills. The physical examination showed two large, draining holes below the knee, and the diagnosis was chronic osteomyelitis. Emperin and codeine were prescribed, and the employee was referred to the orthopedic clinic. The record of the latter clinic, made August 14, 1958, showed that the employee entered for an elective amputation above the knee. The two sinuses which were draining were later measured in the pathological laboratory and found to be 3.5 by 2.5 centimeters and 2.5 by 2.5 centimeters. As previously stated, the x-ray made on August 14, 1958, revealed that the area of rarefaction was much more extensive than that shown in the x-ray made on November 21, 1956. The records further showed that after the operation on August 15, 1958, the employee made a satisfactory recovery and was discharged from the hospital on August 28, 1958.

Dr. A. H. Diehr, called as a medical expert by the employer and insurer, testified that he had reviewed the hospital’s records of the employee’s various confinements, including the x-ray and pathological reports, and that in his opinion they showed a very extensive osteomyelitis of long duration, with a gradual progressive destruction of the bone from the infection. He expressed the opinion, based upon the hospital records, that the employee’s osteomye-litis was not aggravated by any accident, and that the amputation which the employee voluntarily chose to have performed was advisable and inevitable because of massive destruction of the bone.

Mrs. Margaret Trippe, the manager of the Amusement Park and president of the corporation, denied that the employee had ever reported his accident to her, and testified that the first she knew of the matter was when she received the notice of the claim for compensation, on September 12, 1958.

The referee found that the employee sustained an accidental injury to his right leg on July 26, 1958, and that the accident arose out of and in the course of his employment; but he also found that the employee lost no wages or time from work as a result of the accident; that he sustained no permanent disability therefrom and that no medical aid was needed or required because of the accidental injury; that the employee had osteomyelitis of the tibia of his right leg since 1929; that the osteomye-litis was not caused or aggravated by the accident of July 26, 1958; that the osteo-myelitis necessitated the amputation of the employee’s right leg above the knee; and that the amputation was not the result of or in any way connected with the accident of July 26, 1958. As stated, the Industrial •Commission and the Circuit Court affirmed these findings on review and appeal.

In his brief the employee recogniz■es the oft-repeated rule that where the facts were in dispute, as they were here, the •scope of appellate review in a case of this ■nature is limited to a determination of whether the findings of the Industrial Commission are supported by competent and-•substantial evidence upon the whole rec•ord, and that the appellate court is not at ’liberty to substitute its judgment for that of •the administrative tribunal unless the findings are clearly contrary to the overwhelming weight of the evidence. Gennari v. Norwood Hills Corporation, Mo., 322 S.W. 2d 718; Lake v. Midwest Packing Co., Mo., 301 S.W.2d 834; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647. But he contends that the medical evidence offered by the employer and insurer was insufficient to sustain the award, and that the testimony of both Dr. George and Dr. Diehr should have been disregarded because they expressly or tacitly conceded that their opinions were influenced by the fact that the hospital record did not make mention of the accident of July 26, 1958.

It is true that on cross-examination Dr. Diehr, who based his opinion on the hospital records, did state that the lack of any reference to an injury had influenced his opinion, but when asked whether his opinion would have been changed if an injury had been referred to in the records he replied that that would depend upon the nature of the injury. Dr. George did not admit, tacitly or otherwise, that his opinion was influenced by the absence of any reference in the hospital records to an injury on July 26; he had examined the employee on August 13, found no evidence of any injury, studied the x-ray reports, and based his opinion on what he observed and what the x-rays revealed.

While the occurrence of any accident and resulting injury were disputed by the employer and insurer, it is obvious from its findings that the Industrial Commission accepted the employee’s testimony that he had fallen and skinned his shin, for it found that he sustained an accidental injury. But the vital question then presented was whether the accidental injury so aggravated the employee’s pre-exist-ing osteomyelitis as to necessitate the amputation. Such a medical question is one peculiarly for the determination of the Industrial Commission, Gennari v. Norwood Hills Corp., supra; Vollmar v. Board of Jewish Education, Mo., 287 S.W.2d 868, and as to that issue the Commission specifically found that the osteomyelitis was not aggravated by the accident, that the amputation was not the result of or in any way connected with the accident, and that the amputation was the natural result of the progressive destructive process, over a long period of time, of the osteomyelitis. The medical history of the employee’s case, and particularly the testimony of Dr. George, amply supports the Commission’s findings.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

The foregoing opinion hy DOERNER, C., is adopted as the opinion of the court.

Accordingly, judgment is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    Anthony GLOWCZWSKI (Plaintiff) Respondent, v. William Edgar FOSTER (Defendant) Appellant.
    No. 31009.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.
    Motion for Rehearing or to Transfer Denied Sept. 11, 1962.

      Adolph K. Schwartz, St. Louis, Chapman, Schwartz & Chapman, St. Louis, of counsel, for appellant.
    Padberg & Raack and Godfrey Padberg, St. Louis, for respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is a damage suit arising out of an automobile collision on Kingshighway a short distance south of Barnes Hospital in St. Louis, Missouri. Plaintiff obtained a verdict for $7,500, and from the judgment rendered thereon defendant has perfected an appeal to this court.

Kingshighway, at and near the point of the accident, is an eight lane avenue running generally north and south with a raised concrete divider separating the north from the southbound traffic. On November 18, 1959, at approximately 10:30 A.M., plaintiff was proceeding north on Kings-highway traveling in the lane next to the concrete divider in the center of the street following a car driven by an elderly lady. As the two vehicles approached the first crossover of the concrete divider south of Euclid Avenue, the elderly lady signaled a left turn and came to a stop at the crossover with plaintiff bringing his automobile to a stop behind her vehicle. After she had waited fifteen or not more than twenty seconds for the southbound traffic to clear, she started to make a left-hand or U-turn at the crossover. At this time, before plaintiff started to move ahead, his vehicle was struck from the rear and knocked forward about one car length by an automobile driven by defendant. The first vehicle driven by the elderly lady had moved out of the way through the crossover and was not struck by plaintiff’s vehicle when it was knocked forward by the impact. Plaintiff stated that he did not see defendant’s car prior to, or at the time of the collision.

The only evidence offered in the case as to what the defendant did prior to the accident is the testimony of defendant himself. Defendant testified that he turned on to Kingshighway from Chouteau about two blocks south of the scene of the accident and pulled into the same lane of traffic traveled by plaintiff next to the center divider. Plaintiff put in evidence as an admission against interest a portion of a deposition made by defendant wherein defendant stated that he first saw plaintiff’s car when it was a block away, and at that time plaintiff’s vehicle was stopped and the car ahead of the plaintiff was making a left-hand turn. Defendant in testifying in his own behalf at the trial stated that he first saw plaintiff’s car a block and a half away following another vehicle and plaintiff was slowing for a stop; that there were no cars in the same lane between defendant and plaintiff and that he did not see plaintiff’s vehicle actually stopped until he was only about fifty feet away. Defendant further testified on direct examination that he was traveling about twenty to twenty-five miles per hour when he saw plaintiff’s car was stopped; that he started slowing down and braking and the car slid on the street which had been freshly watered with a water truck and that he bumped into the back end of plaintiff’s car at a speed of about ten miles per hour. Defendant further testified on direct examination that he did not notice the water on the pavement until after the accident but on cross-examination stated that he noticed the pavement was wet prior to the collision. Defendant further testified on cross-examination that he did not put his foot on the brake until he got within fifty feet of plaintiff and ran straight into the back end of plaintiff’s vehicle.

Defendant assigns as error the action of the trial court in overruling his motion for directed verdict for the reason that plaintiff did not make a submissible case under his petition and main instruction, which were on the theory that the defendant drove and allowed or permitted his automobile to collide with the rear of plaintiff’s vehicle. Defendant contends that all of the evidence showed that the accident was actually caused by defendant skidding into plaintiff. Defendant argues that plaintiff produced no evidence of any pleaded negligence and did not instruct on any theory of pleaded negligence and then concludes that the accident was caused by skidding and that mere skidding does not make a submissible case if there is nothing more, citing Evans v. Colombo, Mo., 319 S.W.2d 549, and cases therein cited.

We believe that plaintiff did make a submissible case under what is sometimes called the “rear end collision” doctrine which recognizes that if one person has his vehicle in a portion of the highway where he should have it, or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; McVey v. St. Louis Public Service Co., Mo.Sup., 336 S.W.2d 524, 527; Boresow v. Manzella, Mo., 330 S.W.2d 827; Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302, 305; Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360.

In this case, plaintiff’s evidence showed that his vehicle was in a position on the street where he was entitled to have it, i. e., stopped behind a vehicle in the northbound lane which had halted to permit traffic in southbound lane of street to clear before making a left turn; that plaintiff was stopped in such position for a period of fifteen or at a maximum of twenty seconds and then was struck in the rear by an automobile operated by defendant traveling in same northbound lane of traffic occupied by plaintiff. Plaintiff in presenting his case offered no evidence that defendant skidded into his vehicle. The only evidence of skidding was defendant’s own testimony that his car slid on the wet pavement. This was not a part of plaintiff’s case but was apparently offered as a defense to plaintiff’s case. Evans v. Colombo, supra, and other cases cited by defendant are not in point as they involved situations where plaintiff as well as defendant presented evidence of skidding by defendant or the fact of skidding by defendant was admitted by plaintiff.

Defendant also contends that plaintiff did not make a submissible case because there was no evidence that plaintiff’s head was thrown backward and then forward and thus there was no proximate cause between the casualty itself and any resulting “whiplash injury.” Such contention is without merit. Plaintiff in describing what happened to him when his stopped car was struck from the rear testified as follows: “Well, that was something I had never experienced before and it’s kind of hard for me to explain it other than the fact that it felt like I was being thrown one way and then another all of a sudden like and actually, when it happened, I didn’t know exactly what had hit me or what had happened.” Plaintiff’s car was forcibly struck from the rear and knocked forward at least one car length and a cigarette in plaintiff’s mouth at time of collision was found in the back seat of the car. The plaintiff apparently was facing forward in the direction his car was headed, as he described in detail the movements of the vehicle in front of him. Plaintiff also testified that his neck started paining him that evening, that his neck was stiff and hurt, that the next day (Thursday) he called Dr. Walker and made an appointment and was examined by Dr. Walker on Saturday. That the pain in his neck did not go away but remains with him constantly. We conclude that the plaintiff’s evidence was sufficient to establish the causal connection between the casualty and the plaintiff’s injuries described in evidence.

Defendant next assigns as error the giving of Instruction No. 1 which was plaintiff’s main verdict directing instruction. Defendant contends that this instruction ignores the admitted factual element of skidding. This contention is not well taken. A careful examination of the record does not disclose any evidence, either direct or circumstantial, offered by plaintiff that defendant’s car slid or skidded into plaintiff’s vehicle, nor is there anything in the record showing that plaintiff in any way admitted as a fact that defendant’s automobile slid or skidded. Defendant again cites the case of Evans v. Colombo, supra, but that case is entirely different on the facts because, as previously stated, skidding was an established fact demonstrated by the evidence of both plaintiff and defendant.

Defendant also contends that plaintiff’s Instruction No. 1 fails to hypothesize the fact of skidding and the language of the instruction requiring a finding that defendant “drove his automobile” and “allowed and permitted his automobile to overtake and collide with plaintiff’s automobile” assumes that defendant drove his automobile and ignored the possibility of an accidental or non-negligent skidding as the proximate cause of the casualty. This contention apparently is made on the theory that defendant’s evidence of sliding or skidding is a necessary element which must be hypothesized in the instruction. In support of this contention defendant cites Evans v. Colombo, supra; Karch v. Stewart, Mo., 315 S.W.2d 131; and Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59. These three cases all held that plaintiff’s verdict directing instructions were prejudicially erroneous because they did not hypothesize the factual element of skidding. These were cases, however, in which the real issues involved either negligence in causing the skidding or negligence in the operation of a skidding vehicle. The skidding of defendant’s vehicle in those cases was established as a fact by the evidence of both plaintiff and defendant and was the sole factual basis for the fundamental determination of negligence or no negligence. The other cases cited by defendant are not analogous in any way to the situation presented here.

The fundamental issue in the instant case was negligence or no negligence on the part of the defendant in overtaking and colliding with the rear of plaintiff’s vehicle. We believe that this issue was properly submitted in Instruction No. 1. Jones v. Central States Oil Co., supra; McVey v. St. Louis Public Service Co., supra. The evidence of skidding was only evidence offered by defendant, from which defendant claims the jury could have found he was not negligent. A plaintiff’s verdict directing instruction properly hypothesizing his affirmative facts and theory of recovery is not erroneous in omitting reference to or ignoring the defendant’s evidence which merely tends to disprove the plaintiff’s affirmative allegations and evidence. Merrick v. Bridgeways, 362 Mo. 476, 241 S.W.2d 1015, 1021; Gately v. St. Louis-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54, 63. Defendant did not plead skidding as a defense and did not offer an instruction submitting any theory of defense based on his evidence that his car slid or skidded. The evidence of skidding was offered under the general denial in defendant’s Answer. Assuming that such evidence of skidding was a defense, it would be in the nature of a sole cause situation which is not an affirmative defense. McVey v. St. Louis Public Service Co., supra. In this type of situation, plaintiff is not required to hypothesize for recovery any facts which go beyond plaintiff’s own theory of recovery. Shepard v. Harris, Mo., 329 S.W.2d 1, 6; Easterly v. American Institute of Steel Construction, 349 Mo. 604, 162 S.W.2d 825, 827; Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120, 127. We, therefore, conclude that Instruction No. 1 was not prejudicially erroneous.

Defendant next assigns as error, the admission in evidence of the deposition of Dr. A. W. Wentz, (1) because his hypothetical opinion therein was based on hearsay, and (2) because he is a chiropractor and not qualified to give an expert medical opinion. We do not believe defendant’s contentions can be sustained. At the trial the defendant made only two significant objections to Dr. Wentz’s testimony read from his deposition. The first objection made at the time plaintiff offered the deposition in evidence, was on the basis that the witness was available under a subpoena and because he did not qualify under any of the provisions of Section 492.400 V.A.M.S. The second objection was to a hypothetical question asked Dr. Wentz involving the causal relationship between the collision and the condition in which he found plaintiff. Defendant objected to the question on the grounds that it was a hypothetical question and assumed facts not in evidence and omitted facts which he anticipated would be in evidence. The only pertinent specifications or error in the motion for new trial were (1) “the court erred in permitting the introduction of irrelevant, immaterial and prejudicial evidence,” and (2) “the court erred in permitting the plaintiff to read into evidence, on his own behalf the deposition of A. W. Wentz. Said deposition was offered by the plaintiff under provisions of 28 V.A.M.S. § 492.400; whereas the only facts which might authorize the reading of this deposition were contained in the deposition itself, and they disclose that the witness resides in St. Louis County, has his office in St. Louis County, and was present in St. Louis County at the time of the trial, and was subject to subpoena under said statute. The witness is a chiropractor, and does not come under the exemption of physician under said statute.”

Considering defendant’s contention that the hypothetical question asked Dr. Wentz was based on hearsay not in evidence, it is apparent that this point was not set out in defendant’s Motion for New Trial. It would thus appear that under Rule 79.03, Rules of Civil Procedure, V.A. M.R., the point is not preserved for review by this court. Aside from the question of whether defendant has preserved the point for appellate review, the objection made by defendant at the trial to the hypothetical question on the basis that “it assumes facts not in evidence and omits facts which I anticipate will be in evidence” does not comply with the necessary legal requirements for making such an objection. “It is the duty of counsel, objecting to a hypothetical question on the ground that it assumes facts not in evidence or that it omits facts shown in evidence, to point out what matters not in evidence are assumed in and what matters in evidence are omitted from such question. Failing to do this, the trial court is fully justified in overruling the objection.” Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 402. We, therefore, conclude that the trial court did not err in overruling defendant’s objection to this hypothetical question. Defendant also contends in his brief that Dr. Wentz was a chiropractor and, therefore, was not qualified to give a medical opinion. The defendant made no specific objection to his qualifications as an expert witness. Aside from the point that the trial court was not specifically required to rule on an objection to Dr. Wentz’s qualifications as an expert witness, it should be noted that such matters as determining the qualifications of an expert witness rest primarily in the discretion of the trial court. It has previously been held that no error was committed in allowing a chiropractor to give his expert opinion as to the interpretation of X-rays. Guiley v. Lowe, Mo.Sup., 314 S.W.2d 232, l. c. 238. We find no merit to this contention of defendant.

Defendant next assigns as error the action of the court in permitting Dr. Harvey Walker, Jr., to answer a hypothetical medical question that assumed material facts not in evidence. There is a serious question as to whether the general specification in defendant’s Motion for New Trial permitting the introduction of “irrelevant, immaterial and prejudicial evidence” is sufficient to preserve defendant’s contention of error for review by this court. However, aside from this consideration, we do not believe defendant’s contention is well taken. Defendant argues that the hypothetical question put to Dr. Walker containing the assumption “that inside the car his (plaintiff’s) head was snapped backwards and forwards” was not supported by any evidence. As previously noted, plaintiff testified that “it felt like he was being thrown one way and then another”; that plaintiff’s car was forcibly struck from the rear and driven forward one car length. That plaintiff was apparently facing in the direction his vehicle was headed as he described the movements of the vehicle in front of him. We believe that these circumstances developed by plaintiff’s evidence are sufficient to warrant the assumption made in the hypothetical question.

Defendant next complains that plaintiff’s Instruction No. 6 was erroneous on the measure of damages, because it submitted the question of permanent injuries, and contends there was no credible evidence that plaintiff sustained any permanent injuries. The evidence required to sustain a submission that the injuries will be permanent must show a reasonable certainty to that effect. Doelling v. St. Louis Public Service Co., Mo.App., 258 S.W.2d 244, 249. In the instant case, Harvey Walker, Jr., M.D., plaintiff’s physician, testified as follows:

“Q. Doctor, would you describe for us, please — strike that — did you form any opinion, doctor, as to what happened to the muscles, the muscle structure in Mr. Glowczwski’s neck ?
“A. Yes. I thought, from the description of the accident and his symptoms that he had a whiplash injury and I thought that he had damaged the muscles in his neck and other structures in his neck due to the accident.
“Q. What kind of damage did you think he had to the muscle structure of his neck, Doctor?
“A. The whiplash action tears the muscle fibers and there may be some bleeding in the muscles and in the other tissues in the neck.
“Q. Did you form an opinion as to whether or not any of the muscles in Mr. Glowczwski’s neck were torn?
“A. I believed them to be, from his symptoms.
“Q. Doctor, when those muscles are torn how do they heal?
“A. They heal by scar tissue forming across the torn part of the muscle.
“Q. Doctor, does a muscle normally have some resiliency or elasticity to it?
“A. Certainly, normal muscles.
“Q. What is the effect on the elasticity of the muscle, the stretching of it, what is the effect of scar tissue in that area?
“A. Scar tissue doesn’t stretch, so the muscle loses some of its ability to stretch.
“Q. Is that a painful condition, Doctor?
“A.' Yes.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“Q. (By Mr. Padberg) Doctor, does he have scar tissue in the muscles of his neck as a result of this accident?
“A. Yes.
“Q. Is that a permanent disability?
“A. Yes.”

We conclude that there was evidence sufficient to submit to the jury the permanency of plaintiff’s injuries.

Defendant complains that the court erred in refusing Instruction No. C offered by defendant which reads as follows:

“You are further instructed that, if you believe and find from the evidence that the injury to the plaintiff was caused by an accident, mischance, or misfortune, and not due to any negligence on the part of either the plaintiff or defendant contributing thereto, then the plaintiff is not entitled to recover, and your verdict must be in favor of the defendant.”

We believe the court ruled properly in refusing to give this so-called accident instruction. The rule followed in a number of recent cases is that a general accident instruction should not be given when the cause of the casualty is known. Klesath v. McQueen, Mo., 312 S.W.2d 122, 125, 126; Little v. Wilkerson, Mo., 273 S.W.2d 182; Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 129. In the instant case the cause of the casualty was known, i. e., defendant overtaking and colliding with the rear of plaintiff’s vehicle and this was established by the evidence offered by both plaintiff and defendant.

The next assignment of error made by defendant was that the verdict was so grossly excessive as to indicate bias and prejudice on the part of the jury and thus entitle defendant to a new trial. This question was presented to the trial court in the Motion for New Trial and the point was ruled against defendant. There is nothing in the record to indicate any misconduct during the trial or any indication that the jury was prejudiced in any way. It has been frequently held that the amount of the verdict does not necessarily indicate passion and prejudice, Knight v. Swift and Co., Mo., 338 S.W.2d 795, 802, and cases therein cited. We do not consider that under the circumstances shown in this case that the amount of the verdict establishes bias and prejudice on the part of the jury.

Defendant also argues that the verdict is so excessive that a remittitur should be ordered. “There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries and to the fact that the jury and the trial judge were in a better position than this court to measure an award of reasonable compensation, as well as to the fact that the trial court has approved the verdict in question.” Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, l. c. 127.

In applying these rules we must consider plaintiff’s evidence as true and give him the benefit of all reasonable inferences arising therefrom. In the instant case we have a man 28 years old at the time of trial who was in good health up to the time of the accident; that at the time of trial some 16 months after the accident he could not freely move his neck without pain; that the muscles in his neck were torn and the scar tissue formed in the healing process and this condition caused pain and is permanent; that he will suffer pain in the future; that since the accident he had a constant aching and any sudden move caused pain to shoot down through his back; that he had headaches after the accident about every eight to ten days; that plaintiff sustained property damage in amount of $146.00 and medical expenses at time of trial totaled $211.00, and that he would need treatment in the future. No standard or measure can be found for arriving at reasonable compensation for the type of pain and suffering involved in this case, except the judgment of the so-called reasonable man.

The trial court and the jury had the opportunity to observe the plaintiff during the trial. Although the amount of the verdict appears to be a liberal award, we do not feel it so excessive as to require that a remittitur be ordered. This view finds support in these cases where somewhat similar injuries supported awards in excess of the verdict in this case. Davis v. Ball, Mo.App., 271 S.W.2d 605, 609; Bullock v. Sklar, Mo.App., 349 S.W.2d 381, 387, 388.

The judgment should be and is affirmed.

ANDERSON, P. J., and WOLFE, J„ concur.


text:
    Catherine C. HOLTKAMP (Plaintiff), Respondent, v. Emmett Arthur GIBBS and Helen Gibbs (Defendants), Appellants.
    No. 30964.
    St. Louis Court of Appeals. Missouri.
    July 17, 1962.
    Edwards, Wright & Seigfreid, Jerome W. Seigfreid, Jackson A. Wright, G. Andy Runge, Edward D. Hodge, Mexico, for appellants.
    Barnes & Barnes, Latney Barnes, Mexico, for respondent.
   WOLFE, Judge.

This is a suit brought to recover damages arising from personal injuries that the plaintiff sustained. The injuries were inflicted when the automobile in which she was driving was struck by a car driven by Emmett A. Gibbs. Gibbs, by motion, asked that Helen Gibbs, his wife, be made a party defendant so that they could join in a counterclaim for damages to the automobile driven by Gibbs and jointly owned by them. Helen Gibbs was joined as a defendant, and they counterclaimed against the plaintiff. There was a verdict and judgment for the plaintiff on her cause of action, and also in her favor on the counterclaim. The defendants appealed.

The facts of the case are that Mrs. Holt-kamp was driving her husband’s car on her way to work on April 16, 1959. She was proceeding northwardly on Calhoun Street in the City of Mexico, Missouri. This street runs to the north and south and is intersected by Promenade Street, which runs to the east and west. Calhoun Street, as it runs northwardly toward Promenade Street, rises slightly until it reaches an elevation of about 3½ feet higher than the Promenade intersection. This elevation is about a half a block from the intersection, and from this point Calhoun Street slopes gradually downward toward Promenade. On the southwest corner of the intersection there was a house that stood back 37 feet from the south curb of Promenade Street and 3yi feet from Calhoun. It had a picket fence 4 feet high on the Calhoun side. The fence was on a terrace about 18 inches above the street level and extended along Calhoun up to a point about 9 feet from the curb of Promenade. There were shrubs along the fence in the yard that it enclosed. Parking was permitted only on the south side of Promenade Street, and there were cars parked there, to the west of the intersection, at the time in question.

When the plaintiff Mrs. Holtkamp reached a point about 45 feet south of Promenade Street, as she was going northward on Calhoun, she saw the car driven by defendant Gibbs 120 feet west of the intersection driving eastward. It appeared to her at this view to be moving at a “high speed”. She was traveling at 10 miles per hour at the time, but she slowed almost to a stop at the intersection, and she proceeded to cross Promenade. She testified that at this point she did not know his speed, and she proceeded into the intersection because she thought that she had time to cross in front of the defendant’s car and thought she had the right of way. She had reached a speed of 15 miles per hour. Her car was in the right lane of Calhoun Street, and the front of the car passed the center line of Promenade when it was struck on the left side by the car Gibbs was driving. Gibbs’ car was partly over the center line of Promenade. The plaintiff’s car was knocked into a tree near the northeast corner of the intersection, and she suffered a “whiplash” injury. No point is raised in relation to the injuries that the plaintiff suffered, so they will not be further elaborated upon.

Gibbs testified that he was traveling east-wardly on Promenade Street, and that as he approached the intersection his speed was 20 miles per hour. He said that his view of the intersection was blocked by a car parked on the south side of the street and by the fence and shrubbery about the house on the corner. He said that he looked right and left when he was 20 feet from the intersection and saw no automobile. He said that he did not see the plaintiff’s car until the moment of impact. The car that Gibbs was driving was owned by him and his wife, and the title was in “Emmett Arthur Gibbs and Helen Gibbs, right to survivorship”.

Both the plaintiff’s cause of action and the defendant’s counterclaim were submitted on primary negligence.

All points raised by the defendant relate to the counterclaim of Gibbs and his wife. It is contended that as the title to the automobile was in the names of Emmett Arthur Gibbs and Helen Gibbs, it was owned by both in the entirety. Having reached this conclusion, it is asserted that the negligence of Emmett Gibbs cannot be imputed to Helen Gibbs, and that therefore there should have been a judgment in favor of both defendants on the counterclaim, if the plaintiff was guilty of negligence contributing to the collision. We are cited to Smith v. Smith, Mo.App., 300 S.W.2d 275, and Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23 S.W.2d 102, 69 A.L.R. 470. Neither of these is authority for the point advanced, and we need not further consider it, for the reason that the appellant predicates the point upon the assumption that the plaintiff was guilty of contributory negligence as a matter of law

In urging that the plaintiff was guilty of contributory negligence as a matter of law, the appellant states that the plaintiff saw Gibbs’ car approaching the intersection, knew it was traveling at a high rate of speed, and not knowing whether it would stop and permit her to cross in safety, she failed to sound a warning and drove into the intersection. This quite ignores the fact that the plaintiff had the right of way and that, according to the defendant’s testimony, he never reached a speed of more than 20 miles per hour. It also overlooks the fact that Gibbs’ car was 80 feet from the west side of the intersection. The position of the cars as they came to rest was in the northeast quadrant of the intersection. There seems to be no doubt that the collision took place while the cars were upon the plaintiff’s side of the street, which would have given her additional space in which to cross. The obvious facts of the matter are that the defendant Emmett A. Gibbs was not looking and drove into the intersection. His view was blocked, and without attempting to see if a car was approaching on his right, he did not stop or slow down. We are cited to a number of cases where the courts held one or the other party to a suit guilty of negligence as a matter of law. None of them are comparable in facts to the case before us. Here the jury could, and probably did, accept the defendant’s statement that his speed never exceeded 20 miles per hour as he approached the intersection, and from this there was nothing to alert the plaintiff that he would not yield the right of way when she saw him still some distance from her.

We cannot hold that the plaintiff was guilty of negligence as a matter of law. In passing upon this question we must bear in mind that the plaintiff’s negligence is for the jury to determine; unless it may be said from all the evidence and proper inferences therefrom, viewed in the light most favorable to the plaintiff, that the only reasonable conclusion is that the plaintiff was negligent and that her negligence was the proximate cause of her injury. We cannot so hold upon the evidence here. Dye v. Geier, Mo.Sup., 345 S.W.2d 83; Kickham v. Carter, Mo.Sup., 314 S.W.2d 902; Moore v. Southwestern Bell Telephone Company, Mo.Sup., 301 S.W.2d 817.

One other point is raised relating to a sole cause instruction covering the counterclaim. It is contended that it fails to hypothesize facts showing that the plaintiff was not guilty of negligence. This point is not raised in the motion for a new trial, or the alternative request for a judgment in accordance with plaintiff’s motion for a directed verdict. It is therefore not properly before us for review,_ but we have examined all of the instructions, including the one of which the appellant complains, and find that the instruction sufficiently covered all of the issues to be determined.

For the reasons stated, the judgment is affirmed.

ANDERSON, P. J., and ELGIN T. FULLER, Special Judge, concur.