author: HIGGINS, Commissioner.

text:
    Mrs. Elmer LANDS, Appellant, v. Erastus BOYSTER, Respondent. Mr. and Mrs. Elmer LANDS, Appellants, v. Erastus BOYSTER, Respondent.
    No. 52246.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellants.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
   HIGGINS, Commissioner.

Action by Mrs. Elmer Lands for $25,000 damages for personal injuries consolidated with action by Mr. and Mrs. Elmer Lands for $25,000 damages for wrongful death of a minor daughter. Verdict was for defendant in both cases with judgment accordingly, from which plaintiffs appeal.

The incident out of which these actions arose occurred May 21, 1964, on East Jefferson Street in Potosí, Missouri. East Jefferson is an east-west street, twenty feet wide, level, and of blacktop pavement. The south shoulder is about two feet wide with a ditch eighteen inches to three feet deep beyond; the north shoulder averages five feet in width and is seven feet wide at the scene. Beyond the north shoulder is Burton Creek.

Mr. Lands, aged 36, was driving his 1958 Ford eastwardly on East Jefferson at ten to fifteen miles per hour. His wife, aged 31, was a front-seat passenger; his three sons and a neighbor boy, all children, were in the rear seat. All occupants of the Lands car intended to stop along East Jefferson to seine minnows from Burton Creek and proceed to Clearwater Lake to fish.

Mr. Boyster, aged 60, was operating his 1949 Chevrolet pickup also eastwardly on East Jefferson at fifteen to twenty miles per hour. He first saw the Lands vehicle when he was three hundred to four hundred feet to the rear of it, and it was then three hundred yards west of the place of collision. Mr. Boyster closed the distance between the vehicles, then slowed to Mr. Lands’s speed and maintained his distance. When Mr. Lands was fifty feet from the place of collision, Mr. Boyster was twenty-five to thirty feet behind him; when Mr. Lands turned to the left side of the road, Mr. Boyster was between fifteen and twenty-five feet behind him. Mr. Lands said he used his left blinker signal; Mrs. Lands said she heard it clicking; Mr. Boyster said no signal was given. Mr. Boyster described Mr. Lands’s turn as “whipping” to the left. He applied his brakes and turned right sharply. Mr. Lands stated he looked into his side mirror and did not see Mr. Boyster; he did not look into his windshield mirror prior to turning left.

The Lands car was struck on the right rear fender by the left front fender of the Boyster truck. The car sustained damage also to the taillight, quarter panel, deck lid, and bumper on the right rear side. The truck’s radiator and grill were damaged and the door was hard to close. The truck stopped immediately in the middle of the street; the car moved forward about twenty feet and came to a stop with its left wheels on the north shoulder.

Respondent concedes that there was evidence from which the jury could have found that Mrs. Lands sustained personal injuries, including concussion and interruption of her pregnancy. The child, Myra Denise Lands, born by Caesarean section upon interruption of the pregnancy, died several hours after its premature delivery.

Appellants contend that giving Instruction No. 8 on contributory negligence was error because “the evidence clearly fails to demonstrate any causal relationship between Mr. Lands alleged negligence and the collision. It also fails to establish any failure of lookout.”

Instruction No. 8 directed a verdict for defendant in the wrongful death case of Mr. and Mrs. Lands if the jury believed:

“First, Elmer Lands either:

“failed to keep a careful lookout, or

“failed to signal his intention to turn and slow his vehicle, and

“Second, Elmer Lands’ conduct, in any one or more of the respects submitted in Paragraph First was negligent; and

“Third, such negligence of Elmer Lands directly caused or directly contributed to cause the death of Myra Denise Lands. (MAI 28.01 modified by 17.06 * * *.)”

The negligent acts attributed to Elmer Lands by this instruction are supported by the record as required by Civil Rule 55.10, V.A.M.R., and Committee’s Comment, MAI 28.01, and may be found to be acts “ ‘such as to enter into and form the direct, producing and efficient cause of the casualty, and absent which the casualty would not have happened.’ ” Danner v. Weinreich, Mo., 323 S.W.2d 746, 750[2]; 65A C.J.S. Negligence § 129, pp. 92-99.

According to Mr. Boyster, just prior to the collision he was following Mr. Lands at a distance of about fifteen feet at a speed of fifteen or twenty miles per hour when “all at once he (Mr. Lands) swung it over to the left. * * * He just cut it over right quick,” and “slowed it down. * * * I swung mine to the right and hit for the brake to try to miss him.” At another time he described the relation of the two vehicles: “When he cut it right over to the left I judge I was, oh, twenty, twenty-five feet when he just wheeled her right over like that. * * * He just cut it — whipped, just whipped it right across the road to the left.” Mr. Boyster saw no turn or slow signal from Mr. Lands by lights or otherwise, and he saw no brake light on the Lands vehicle. Mr. Lands said he looked into his side mirror but could not remember looking into the windshield mirror which admittedly would have revealed an automobile traveling directly at his rear or to his right rear, as was Mr. Boyster. This, together with the previous statement, supported the submission of the acts of contributory negligence attributed to Mr. Lands; and it would be for the jury to say whether those acts “caused or directly contributed to cause” the collision and injuries resulting in the death of Myra Denise Lands, or whether “defendant (negligently) permitted his automobile to come into collision with the rear of plaintiff’s automobile” (Instruction No. 5) and caused Myra’s death because, if Mr. Lands had looked and seen defendant, he could, among other things, have warned of his intention to slow or turn, or not have turned or slowed at all, thus avoiding collision. Myers v. Searcy, Mo., 356 S.W.2d 59, 62-63 [6], “ ‘The driver contemplating a left turn must keep a vigilant lookout * * * for vehicles which may be following him’ ”; Reed v. Shelly, Mo.App., 378 S.W.2d 291, 296[6], “* * * a driver who intends to turn left must make a proper observation to the rear to ascertain whether another vehicle is approaching from the rear in such close proximity that a left turn cannot be made with reasonable safety,” and “then, he must give an ap-propriaté signal of his intention to change direction.” Chandler v. Mueller, Mo., 377 S.W.2d 288, cited by appellants, is not in point because there was no evidence to support an inference of failure to maintain a lookout as compared to this case where to look into the windshield mirror would have been to see to the rear in the area of defendant’s truck.

Appellants’ brief contains a contention that the “evidence fails to support the submission of Mr. Lands’ contributory negligence as a defense against the separate cause of action of Mrs. Lands,” arguing that it “compels a verdict against Plaintiffs on both cases if Mr. Lands was contributorily negligent. It does not distinguish between the two cases.” No such contention was presented to the trial court by specific objection at trial under Civil Rule 79.03, V.A.M.R. Nor was any such allegation of error presented to the trial court in appellants’ motion for new trial under Civil Rule 70.02, V.A.M.R. Accordingly, the point is not preserved for review. Overton v. Tesson, Mo., 355 S.W.2d 909, 913-914[6]; Wolfe v. Harms, Mo., 413 S.W.2d 204, 213[17].

Appellants charge error in permitting Dr. Cresswell to testify for defendant “that he had read that Mrs. Lands had a hypo-pituitary and that this condition would be expected to produce the difficulty in Mrs. Lands pregnancy when there was no evidence Mrs. Lands suffered from a pituitary deficiency.”

One of the issues of causation was whether the child’s death was due to the collision or to some other cause. Dr. Cresswell, in response to a lengthy hypothetical question containing an assumption that Mrs. Lands suffered from a hypopi-tuitary condition, gave his opinion that he “would expect her to have difficulty at the time of labor, and I cannot believe the accident had anything whatever to do with the difficulty of her labor.” Appellants’ position is that this was improper because it permitted an expert to base an opinion on facts not in evidence and not of substantial and probative force, 32 C.J.S. Evidence § 546(63), p. 268; Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 548 [8]; Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 849[11]; that it permitted an expert opinion to be based upon opinions, inferences, or conclusions of another, 32 C.J.S. Evidence, supra; that it permitted an opinion based upon mere conjecture, 32 C.J.S. Evidence § 546(64), p. 271; that it permitted an assumption of fact not in evidence, 32 C.J.S. Evidence § 552, p. 537.

The foregoing are all proper criteria in the admission of expert opinions, but they do not support this charge of error.

The evidence of pituitary insufficiency is in the hospital record in evidence (Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022) from Jewish Hospital in St. Louis where Mrs. Lands was hospitalized March 4, 1964, to March 11, 1964. The discharge note stated among other things: “ * * * Dr. Meyerhardt felt the amenorrhea (absence or abnormal stoppage of the menses) might be on a pituitary insufficiency basis. * * * Discharge diagnosis: * * * Amenorrhea, etiology undetermined.” Defendant had no burden to disprove plaintiffs’ case, but was entitled to show all possible causes of Mrs. Lands’s condition. It was not improper, therefore, for defendant to ask his expert witness if a condition, assumed from other evidence, might, could, or would produce a certain result, because an expert’s view of possibility or probability is often helpful to the jury and proper even though such assurance of possibility would not of itself be sufficient to make a submissible case for one having the burden of proof. Kimmie v. Terminal R.R. Ass’n of St. Louis, 334 Mo., 596, 66 S.W.2d 561, 565 [9-11]; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312, 316[8]; Welker v. MFA Central Co-op., Mo.App., 380 S.W.2d 481, 486[2]; Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 807[5, 6],

Finally, appellants charge error in permitting Dr. Mendelsohn to testify that all the side effects of the drug, Enovid, are not known “when the evidence did not demonstrate Mrs. Lands was taking Enovid and when such testimony was purely speculative.” Appellants’ brief recites that “Mrs. Lands was given Enovid while in Jewish Hospital, seventy-one days prior to this collision,” and Dr. Mendelsohn was asked, “Are all the side effects of Enovid known?” to which he answered, “Not entirely, no.” Appellants argue that this was highly prejudicial as an “attempt to show Enovid as a cause of the difficulty with pregnancy and to take advantage of Religious beliefs concerning the use of Enovid among the jury.”

If the doctor had undertaken to say that the drug had side effects damaging to pregnancies, his answer could have harmed plaintiffs’ cases; however, he simply said the side effects were not all known. No authority is cited in support of the argument, nor is there any attempt by appellants to demonstrate the alleged prejudice.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Pearl WEBER, William R. Weber and Wanda Weber, Appellants, v. L. O. MAGERS, Louwena Magers, and T. J. Walker, Sheriff, Stone County, Missouri, as Trustee, Respondents.
    No. 52253.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.

      J. Hal Moore, Bob J. Keeter, Moore, Pettit & Keeter, Aurora, for appellants.
    Royle Ellis, Cassville, Joe C. Crain, Ozark, for respondents.
   PRITCHARD, Commissioner.

The prayer of plaintiffs in this equity suit is for the cancellation of a note and deed of trust and for restoration of amounts paid on the note, $15,783.82, to plaintiffs. The note and deed of trust were given for the balance of the purchase price of a grocery store business and locker plant (the sale being consummated July 1, 1960) in Reed Springs, Missouri. After taking the case under advisement and permitting briefs to be filed, the court found the issues on Counts I and II of plaintiffs’ petition against them and dissolved a temporary injunction (against foreclosure of the deed of trust, Count II).

The gist of the allegations of Count I of the petition is that to induce plaintiffs to purchase the businesses defendants falsely and fraudulently represented to them that the operation thereof grossed $120,000 per annum and that locker rentals alone were $3,000 per anum; that all locker plant equipment was in first-class condition and met all requirements of the State of Missouri so that immediate operation could be anticipated; that they would deliver a mailing list of customers for hickory smoked hams which would require as many as 300 hams to be processed and smoked at one time; that upon payment of $15,000 gross on their note plaintiffs’ premises would be released from the second deed of trust; that the rental lockers were in full use by paying customers; and that all property was in perfect state of repair. Count II was for said injunctive relief against sale of the property secured by said deed of trust and from sale or transfer of the note secured thereby, pending a trial of the issues concerning the validity of the note. In general, the answers were denials of the allegations of the petition.

The sale of the building and business was for $57,300 initially, and plaintiffs paid $2,500 down ($500 cash and borrowing $2,000 more from Tommy Walker, the Sheriff). The note was drawn for $54,-800, and upon taking inventory of the stock of goods, first estimated at $12,000, a credit of $3,984.79 thereon was given by Magers.

In material respects of issues presented, plaintiffs’ evidence tended to show that Pearl Weber was in defendants’ store and one of them mentioned in the first part of June (1960) that they were wanting to sell the business. Upon remarking that she would like a business (Pearl was a schoolteacher) and her brother, Riley Weber, would like to come back from California, Pearl was later contacted by Mrs. Magers and asked to come to see Mr. Magers. “He wants to talk to you about buying the store.” She told him they didn’t have money to invest, and he told her it would not take very much. They talked three or four other times and she went back again and asked about the purchase price, the income from the store, about the condition of the property and everything that would have to do with being successful in the business. Her testimony was further that Magers wanted approximately $55,000 for the business, and that the business averaged a gross profit of $10,000 per month. He told her the property was in good condition; that he exhibited an electricity bill of $88 and said that was as high as it ever ran; that within a period of five years they could pay for the business and Riley and his family could live out of it, upon which representations she relied. She wrote these matters to Riley and in a few days he arrived in Reed Springs after which they talked with Magers three or four times, and he made the same statements he had previously made to Pearl alone. He told her they could afford to keep the lockers open which would produce an income of approximately $3,000 a year, and that it was in good working condition. Pearl worked in the business on weekends and most times after school. The first notice she had that the property was not in good condition was when the ceiling fell in the living room, and they had trouble with the drainage system until it was repaired in August, 1962. The largest annual gross from the business was $80,000. She and Riley asked Magers’ permission to sell the lockers, which he gave and suggested it be used for cold storage to an individual who had offered him $700 per month. She asked him to release the farm from the deed of trust so they could borrow money to restock the business, but he refused. She mentioned to Magers every time they had trouble making a payment that the business had never reached $10,000 a month, and he thought that it would do better after they had been there awhile, that they should keep trying and perhaps if they wanted to sell he could help find them a buyer. After they had paid Magers $15,000, she asked him to release the farm when she talked with him on the telephone on January 8, 1963, when he was in California, but he refused.

On cross-examination, Pearl stated that sometime in 1962 she wrote to Magers saying that business was not good for the weekend, “maybe saving up for Labor Day”; that they would need more time; that she thought perhaps they had their store problems solved; and she believed things were going to work out all right soon. She testified on deposition that she never made any complaints to Magers about his misrepresentations or the sale of the business. The store was closed on January 15, 1963, with some inventory left on the shelves after she had called Magers in California and told him that unless they could work out something satisfactory with him they would be forced to close the store because they could no longer pay the electricity bill and restock the shelves as they should be and carry on the business. Plaintiffs never did pay any taxes, and used the money for one half the taxes Magers had paid them. At the time they closed the taxes were about $1,500. One of the greatest wrongs Magers did her was that she was led to expect a better business than they had. Riley put in very little money; Pearl paid $500 down and borrowed $2,000 to make the total down payment. The main problem was that plaintiffs did not have enough working capital to keep a stock of groceries and liquor on the shelves. On re-direct examination, Pearl testified that she borrowed $8,000 or $10,000 to put in the business operation from the time it was purchased. Income tax records show it lost $4,554.77 in 1960; $5,376.72 in 1961; and $3,492.89 in 1962. The business was incorporated at the outset as “Shepherd of the Hills Market and Locker Plant.” Pearl drew a salary out of the store only a short time. Nothing was said about the farm as security until Riley had quit his California job and had come to Missouri. Magers then said, “Well, I guess you wouldn’t mind putting your farm up for security.” Pearl said, “Well, yes, I would, but if this is how you represent it, then I guess there’d be no danger of my losing it.” How he represented it meant an income of $10,000 every month and everything was in good condition.

According to Riley Weber, upon being contacted by Pearl he quit his California job and came to Reed Springs where he and Pearl talked with Magers two or three times in negotiating the sale. There was the locker plant, store and fresh meat department and a liquor license involved. Magers told him two cabins in the rear of the premises were rented most of the time at $10 per week. He said the Webers would get $3,000 the first of May out of the locker plant, there being 350 lockers in it. Riley looked in some of them and found meat “and stuff.” There was a card file with about 120 locker cards and Riley didn’t check them very well at first. When he got into the plant there were approximately 20 lockers which were drawing rent. On the other lockers which had meat in there there didn’t seem to be anyone available to claim the contents — no rent was being paid on them, and on closer inspection of a part he found packages of meat which had been there quite awhile — long enough to dry out completely.

Riley had never had any experience in operating a locker plant, a liquor store or a grocery store, but had worked a short time in a grocery store in the state of Washington checking and stocking shelves.

As to the condition of the locker plant, Magers represented to Riley that it was in good shape and ready to operate. Magers told him that he had a mailing list of ham customers which he would furnish and advise him of what season the most hams were needed. As to the true situation, Riley testified there were only the 20 lockers rented at $12 per year; they got a leak in the ammonia line and the cooling system broke down and they had to get it fixed. “Finally got it so it wasn’t so bad.” It cost $250 to have the locker plant repaired. Magers told him he had mailed 200 to 300 hams and bacon at Christmas time; that he had grossed $10,000 a month in the business; and that the Webers would have no trouble in paying for it in five years. After they got into business the gross averaged $5,000 per month. Riley discovered six missing meat trays in the attic catching leaks, and he had to find additional things to catch water a week or two after it started raining. He had to have the living quarters roof repaired, and the floors, except the kitchen and bathroom, had cardboard over subfloor. The drains were stopped up; the septic tank had collapsed and he replaced it, putting in new lateral lines; and also he put in a septic tank for the meat department. Magers told him the average electricity bill for the place ran about $80 per month, but their bills never ran under $100 and sometimes as high as $165 for electricity alone. He first complained to Magers in August (1960) — that they were not making enough the first part of the time to average out what they had to have to get $10,000 a month. It was taking it all to meet their obligations. Magers said, “Well, it’s the season. Stay with it.” The main thing, he said, was that if they would stick with it, he knew a buyer and would send him to them — just keep the business going. Magers told the Webers when they were negotiating to buy that after they had paid $15,000 (principal and interest) on the business he would release the farm. In January, 1963, Magers refused to release Pearl’s farm, and the business was closed the latter part of January or the first of February. Riley was working in Springfield, Missouri, doing what he could to support the business. His wife and Fanna Belle Nickel were helping run it. He testified that the building was in considerably better condition in January, 1963, than it was in July, 1960, when they took possession of the property. He had repainted the cabins, replaced one ceiling, replaced the living quarters roof, replaced a septic tank for the living quarters, completed a new drainage system for the kitchen and a new tank for the butchering department, all at a cost of about $300. He asked Magers’ permission to dispose of lockers, which was given, and he testified Magers was present when lockers were moved out.

On cross-examination, Riley testified that he looked at the living quarters two or three times and saw no wet plastering where water leaked and stained it — he saw just a crack. He prettty well looked over the interior of the plant and saw the coils covered with ice. He went into one cabin, but not the other. There was a compressor for the cooling room, and one for the dairy case; there was a cash register there; there were 350 lockers; the locker plant, machinery and equipment ran for about a year with help in repairing. The $8,900 stock of merchandise went for expansion, repairs and other stock, and he, his wife and three children lived out of it. He started to prepare the locker plant for bulk storage by making an outside entrance thereto through concrete blocks, but the door was never installed. He started to work in September, 1962, in Springfield, and his wife ran the store. The main problem all the way through was that they just didn’t have enough working capital to keep a stock of merchandise in the place. He sold a compressor to Orr or Reynolds, and some locker units to different persons.

Clell McGinnis, State Dairy-Locker Inspector, testified there were no proceedings for condemnation or restrictions on the locker plant. ,

Leon Frederick testified he was at the business and locker plant after plaintiffs left, and the “interior of the plant was a mess.” There were compressor parts on the floor, about 25 or 30 lockers in the freezer room, the living quarters were in run-down condition, with plaster off the walls and a broken stool.

George Orr testified he bought from Riley an evaporating unit from the chill room and a fan for $150, and resold it for $300. Johnny A. Holt bought six sections of frozen food lockers from Riley for $30.

Leonard Magers testified that with Johnny Workman he built the plant in 1947 and in 1949 bought out Workman. Magers’ health failed from 1955 through 1959 and 1960. In 1960 he tried to sell it to a man from Kansas City and during those negotiations Pearl came in and told him she had heard he wanted to sell, and he told her he did. When Pearl talked with him there was no discussion about either his gross or net income; he did show her his 1959 income tax returns (showing a profit of $4,309.97). He denied telling Pearl that his operation grossed as much as $120,000 per year, and he did not remember discussing the locker rental average income. He didn’t think she asked questions about whether or not the plant and equipment were in first-class condition, but she could have — she had been in the plant. There was no discussion about whether or not the butcher shop or meat operation was in first-class condition. His biggest item, was curing hams, bacon and loins, October, November and December being the three biggest months. There was no discussion about furnishing mailing lists of customers for hickory smoked hams, but he did leave a list with the Webers. In 1959 he had 689 smoked ham and bacon customers. Prior to the time he consummated the transaction, before he took the note and mortgage, nothing was said by him about releasing the mortgage and Pearl’s 160-acre farm when $15,000 was paid. There was nothing asked about whether the property was in perfect state of repair — he had not had any trouble with it. At no time after the transaction was closed did plaintiffs complain to him about misrepresenting the buildings or business or anything about it. He did not at any time discuss with Riley any permission to sell equipment, the furniture, or fan, and first knew of the removal of various articles of equipment in January, 1963, when he returned from California. He then found the lockers gone, a hole cut in the north side of the building, the meat and display cases were all gone but one, the National Cash register was gone, one set of computing scales was gone, and there was only $30 worth of groceries on the shelves. He gave the Webers $72.48 for one half the taxes for 1960; the land was advertised for a tax sale and he paid $221.50 to prevent it. From 1961 through 1965 total taxes due amounted to $1,555.19 county and state and $991.70 to the city of Reed Springs. The cost of restoration of the building (to its previous condition) in 1963 was in his judgment $26,000.

Magers denied telling Tommy Walker (who so testified) that he was going to release the farm after he received $15,000 from plaintiffs, or making the statement to anybody that the property when he had it grossed $10,000 per month, or that any person trying to buy it could pay for it within three to five years.

Upon proof clear and convincing to the court, plaintiffs might prevail upon their allegations of misrepresentation of present facts which induced them to enter into the contract of sale. Goar v. Belinder, 213 Mo.App. 330, 249 S.W. 977, 980; Strafer v. Bodney, Mo., 247 S.W.2d 630, 635; Wendell v. Ozark Orchard Co., Mo.App., 200 S.W. 747; Luchow v. Kansas City Breweries Co., Mo.App., 183 S.W. 1123. The plaintiffs’ case rests, however, upon proof of their allegations that Magers misrepresented to them that his operation had grossed $10,000 per month; that he would (intending not to) release the farm from the deed of trust when the plaintiffs had paid $15,000; that the building and equipment were in good condition; that the lockers would produce $3,000 per year; and other facts were sharply controverted by the parties. Their testimony was diametrically opposed upon these issues vital to plaintiffs’ case. The matter of proof here initially turns upon the trial court’s ability and superior position to adjudge the credibility of the parties and other witnesses testifying. In this review deference must be accorded to the trial court’s opportunity to adjudge such credibility. Sloan v. Dunlap, 354 Mo. 1211, 194 S.W.2d 32; Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731; Ragan v. Schreffler, Mo., 306 S.W.2d 494. But in considering this record as a whole, it is apparent, aside from the fact that Magers made no misrepresentations concerning his business so as to induce plaintiffs to purchase it, that their difficulties were brought about by their own mismanagement and their admitted lack of capital to keep the business adequately stocked. The trial court’s judgment is not against the overwhelming weight of the evidence, and should not be disturbed. Sebree v. Rosen, Mo., 349 S.W.2d 865.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: BARRETT, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Benito Vincente ROSSINI, alias Benedict Bernard Hobbs, and John Thomas Ferguson, Appellants.
    No. 51295.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, William J. Raack, Asst. Atty. Gen., St. Louis, for respondent.
    P. M. Marr, Milan, for appellants.
   BARRETT, Commissioner.

Benedict Bernard Hobbs, with an assumed alias of Benito Vincente Rossini because of his dislike of his father, and John Thomas Ferguson, both with prior felony convictions, have been found guilty of burglary and stealing and have been sentenced by the court to concurrently serve sentences of 10 years’ imprisonment for the burglary and 5 years for the larceny.

Upon the trial of the cause Hobbs was represented by counsel of his own choosing and when Ferguson’s counsel withdrew the court appointed Hobbs’ lawyer to also represent him. The lawyer defended the cause with diligence and represented the appellants up to and including the filing of motions for acquittal, a joint motion for a new trial and the filing of a notice of appeal. Since then, upon a showing of in-digency, appellants have been furnished a transcript of the record as made by their trial counsel and a highly respected lawyer has been appointed to represent them in this court and he has done so with skill and diligence.

On behalf of appellants counsel urges three collateral matters: (a) he objects to Instruction 7 relating to argument of counsel, a matter not objected to and not contained in the motion for a new trial (State v. McCarthy, Mo., 336 S.W.2d 411), (b) there is an objection to argument of state’s counsel and to an alleged incident between a witness and a juror but these are not reflected in the transcript, shown only by defendants’ motion and in any event were in the court’s discretion (State v. Turnbough, Mo., 388 S.W.2d 781) and so are not open reviewable questions here. There is also an elaborate objection to an amendment to the information but the amendment merely added the appellants’ prior criminal records as second offenders (24B C.J.S. Criminal Law § 1962, p. 482; State v. Hill, Mo., 396 S.W.2d 563), all of which the appellants of necessity admitted when testifying and consequently there could be no prejudicial error in the court’s permitting the amendment.

The meritorious question vigorously urged by appellants’ counsel is whether from the facts and circumstances the jury could fairly and reasonably draw the inference and find as a fact that these two appellants had participated in the burglary and the larceny. In substance the claim is that there is only a series of “disconnected circumstances,” entirely circumstantial and rising only to the dignity of suspicion. It is said that there is no evidence identifying appellants as persons who broke into the building, no proof they stole anything, that stolen articles and burglary equipment found in the automobile in which they were passengers did not belong to them and was not under their control, that there were no fingerprints and for all these and other reasons it is said that the conviction rests on “mere suspicion, conjecture, or mere opportunity to commit the crime” as in State v. Moore, 339 Mo. 52, 95 S.W.2d 1167; State v. Walker, Mo., 365 S.W.2d 597, and State v. Murphy, 356 Mo. 110, 201 S.W. 2d 280, and therefore it is said that the judgments should be reversed and the appellants discharged.

Specifically the charge was that in the early morning hours of June 25, 1965, four persons, William John Politte, Ted Leroy McKinney, Benito Vincente Rossini and John T. Ferguson burglarized Leo Harns-berger’s “Chuck Wagon” cafe in the village of Luray (population 154) in Clark County and took $46.33 in money, cigarettes and several items of merchandise. Politte and McKinney entered pleas of guilty to the charge and were witnesses on behalf of Rossini and Ferguson and corroborated their testimony that they were asleep in the automobile from St. Louis to Memphis and knew nothing of the burglary and larceny until stopped and arrested by highway patrol officers. In brief the background insofar as all these people are concerned is that four days prior to June 25th at least two of these people, Ferguson and McKinney, had been in St. Joseph (Ferguson’s home), however, Politte said, “We had brought him up to St. Louis about 4 or 5 days before, I believe, from St. Joseph to find a job.” McKinney said that he was in St. Joseph, they had been swimming, and when Ferguson said he needed a job McKinney volunteered that “if he wanted to go with me I could probably get him a job.” (In two years in and out of St. Louis McKinney had worked 4 or S weeks for Taystee Bakery and had a “part-time job with Electrolux Cleaners.”) And so they were in St. Louis, no job was found for Ferguson and when it developed that Ferguson’s wife in St. Joseph was unable to get his traffic court case continued it was necessary, so they all said, for him to be in St. Joseph the next morning, June 25, by 8:30 or 9:00 o’clock, as “I received a traffic ticket * * * and it was supposed to be paid the 25th, which was the next day.” And, he says, although McKinney owned the Chevrolet automobile involved here, he was going to look at a 1957 “Olds” Ferguson had purchased a few days previously. The trip was decided upon on the spur of the moment at Ted’s home and the four of them left St. Louis in McKinney’s 1960 Impala about 8:30 or 9:00 o’clock and were stopped at 3:13 a.m., at the junction of Highways 15 and U.S. 136 near Memphis in Scotland County by a highway patrolman.

As McKinney conceded, since they were anxious to be in St. Joseph the next morning by 8:30 or 9:00 o’clock for Ferguson’s benefit, it is a circumstance worthy of note that instead of driving across Missouri by two much shorter routes — Interstate 70 to the Kansas City area and then north; or, more directly, north to Hannibal from St. Louis and straight across the state on Highway 36 to St. Joseph — they were on Highway 136 at Memphis in Scotland County when arrested at approximately 3:30 in the morning, a route many miles out of the way and several hours from their stated destination.

Another and significant circumstance is the automobile, McKinney’s 1960 two-door, red Impala Chevrolet. In the language of automobile buffs and “hot rodders,” this automobile had been “customized,” its motor revved, all the door handles, including the handle to the trunk lid, had been removed and the doors and lid could only be operated from the inside by a solenoid switch (Webster’s Third International Dictionary). The switch to the trunk lid was out of order and McKinney had attached and ran a wire from the trunk latch into and through the back seat and the trunk lid could only be opened by pulling on that wire. From their arrest in June to the date of the trial in November the automobile had been held in a garage and it was stipulated that a demonstration on that date “would not result in the trunk lid popping up or flying open in the manner that some of the witnesses (I think) testified to.” However, the highway patrolman who made the arrest testified that the trunk “could not be opened from the outside.” And he said that after obtaining a search warrant “I reached in and pulled that wire and that trunk lid flew open. * * * It flew open and stayed up.” After the patrolman signaled and the red Impala pulled off the road and stopped the driver, McKinney, walked back to the patrol car. The patrolman shined his flashlight into the front seat and there was one person there, Rossini, and in the back seat “crouched down” were two more, Po-litte and Ferguson. In the automobile officers found the cigar box, containing $46.-33, from the Chuck Wagon Cafe, also a number of other items, including a badminton set. Also from between the seats there was a crowbar with green paint on it, screwdrivers and nine canvas gloves. Ferguson told the officers, he says because of his past criminal record, that his real name was “Robert Eugene Jones.”

As stated, Politte and McKinney admit the burglary and larceny of two places of business in the village of Luray and corroborate Rossini’s and Ferguson’s claim that they were asleep in the automobile and had no knowledge of the burglaries and the question is whether, despite these claims, there is any evidence, direct or circumstantial (State v. Durham, 367 S.W.2d 619), from which the jury could reasonably infer and find that Ferguson and Rossini directly took part in the burglary and larceny or, overlooked by them, were present aiding and abetting by concerted action in a common purpose and were therefore likewise guilty as principals. State v. Ramsey, Mo., 368 S.W.2d 413 1.c. 417; State v. Key, Mo., 411 S.W.2d 100, 103. Owen Hawkins operates a bus and has a garage in Luray and his residence is in the same building with his business on Route K, the main business street. The residence is a block west of the stores and between them and the garage is the city park but there is an unobstructed view across the park. Hawkins’ daughter, Connie, was awakened in the early morning hours and heard an automobile pass. She looked out the door and stopped at the public well was a ’60 or ’61 Impala, which she recognized because her boyfriend had a ’60 black Impala, stopped in front of Selway’s (the other place burglarized). She awakened her father who dressed and went outside to see if anyone might be tampering with his combine. As he got to the corner of his garage the automobile started up. He said that he saw “one fellow come across the street. The trunk opened, and he threw a bag of some kind or something in there. * * * And another fellow appeared from the other side of the car.” He returned to the residence, told his daughter to call the police, and got in his school bus “and the carat that time had moved on down to Hams-berger’s Cafe facing west. I could just see the back end of the car. I seen movement there, people moving around.” As to the trunk lid he said, “I didn’t see anyone open it. * * * It just opened.” He was positive that two people were out of the car in front of Selway’s although he could not identify them and he was positive that the trunk lid “popped” open. But Connie remained at the door and this is her testimony (italics supplied):

“A. I saw two people then walk to this store, and the car went on around the block and stopped by my father’s combine.
* * * * * *
“A. I seen two people come from — it looked like Selway’s — * * * and the two people threw something in their trunk, and it went on, and the two people ran alongside the car out of my sight.
***** *
“Q. Did one of these two men running alongside the car, did they open the trunk ?
“A. I didn’t notice them open it.
“Q. Tell the Court whether it did or did not fly open as it appeared to you without anybody opening it?
“A. Yes, it did.
“Q. After they threw this stuff in, _ then what happened?
“A. Then the car went on down the road and they were running along beside the car.
* * * * * *
“Q. How many people did you see running alongside the car ?
“A. Two people.
“Q. Was the car in motion then?
A. Yes, sir.”
On cross-examination she said that there were no other automobiles on the street, the two men outside were not pushing it, and she testified:
“Q. You say you saw the trunk fly up?
“A. Yes.
******
“Q. You mean to say with a block and a half distance, trees and shrubbery in your way (which she denied obscured her view), that you would want to tell a jury that a trunk opened of itself ?
“A. Yes, sir.
******
“Q. Could you tell what was being put in the trunk?
“A. Each of them had two armloads, but I couldn’t tell what it was.”

In this connection, while Ferguson insisted that he was but a sleeping passenger, he knew about the “customizing” of the automobile and he knew about the trunk, he had seen McKinney open it in St. Joseph. Rossini said that he had never seen the trunk opened and, contrary to the patrolman’s testimony, he claimed that he was riding in the back seat.

Thus the essence of this case is the permissible inferences from the fact that in the course of an admitted burglary and larceny, there were two people in the automobile employed in the crime and two outside — it makes no difference which two were in or out — two of them enter pleas of guilty. While two are outside throwing things in the vehicle is moving and so one of the two inside had to be driving; the trunk lid pops open and it can only be opened by means of the wire in the back seat and the other of the two inside was admittedly in the back seat and thus all four are accounted for. And all four are active in one capacity or another, one pair in breaking and entering and carrying out loot, and one in driving and operating the receptacle vehicle while the other in the back seat is pulling the wire and opening the trunk lid, the latter two if not thus actively participating as conspirators, present aiding, encouraging and abetting in concert the common purpose of a completed burglary and larceny. In addition to these telling circumstances as to Ferguson there was the incriminating circumstance of his attempt to deceive the officers as to his true name and identity. State v. Whitaker, Mo., 275 S.W.2d 322, 325. Thus in this case the “criminal agency” of the appellants is not based on mere opportunity and suspicion as in State v. Walker, Mo., 365 S.W.2d 1.c. 602, State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282, and State v. Moore, supra. Here active conduct on the part of all those present is a permissibly fair inference from the circumstances. Here as in State v. Jordan, Mo., 235 S.W.2d 379, and its companion case, State v. Dowling, 360 Mo. 746, 230 S.W.2d 691, 694, “[t]he jury could reasonably find from all of the facts concerning the disappearance of the goods and the activities of defendant and her companions that they were acting together with a common purpose to steal them.” Or as it was said in State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921, the evidence is sufficient to support the inference “that the stranger and defendant conspired together to steal an automobile, that the stranger stole one, and that defendant was present as an accessory aiding and abetting him.” The case nearest in point in all respects but not nearly so compelling in its facts is State v. Ramsey, supra, in which the mere presence of the accused, without active participation, was noted as a factor. It was there pointed out that “aiding, abetting or encouraging the crime” could be established circumstantially and if found “ ‘makes a defendant a principal.’ ” The same circumstances said to be weaknesses and to show that no case was made were pointed to there as here (but need not be enumerated) but after detailing the record the court concluded there, as it must here, that “(t)hese circumstances raised a fair and reasonable inference of concerted action which involved defendant either as an actual participant or as an aider and abettor in the crime; and this inference, in our opinion, was sufficient ‘ * * * to permit reasonable minds to believe the defendant guilty beyond a reasonable doubt,” ’ * * and thus to make a submissible fact issue.”

Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by BARRETT, G, is adopted as the opinion of the court.

All of the Judges concur.


author: PRITCHARD, Commissioner. PER CURIAM:

text:
    James D. SELLENS, Appellant, v. Elvin CHRISTMAN, Respondent.
    No. 52546.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.
    Brown & Normile, Edina, Rolin T. Boul-ware, Shelbina, for appellant. '
    Bollow, Crist & Bollow, Shelbina, Edwards, Hess & Collins, Macon, for respondent.
   PRITCHARD, Commissioner.

The injuries for which plaintiff sues were occasioned by a felled tree, lodged in the top of another partially sawed tree on defendant’s land, falling upon him necessitating amputation of his leg. The claim was for $25,000. The trial court directed a verdict against plaintiff at the close of his evidence upon the stated grounds that plaintiff had entirely failed to establish that the accident was in some way the fault of defendant and that the evidence showed plaintiff was himself at fault.

Orville Vanskike, a brother-in-law of plaintiff, was staying at plaintiff’s home on January 13, 1963, a Sunday. He saw defendant, Christman, there and heard a conversation between plaintiff and Christman about noon of that day. Christman said that he had a new chain saw and wanted to go try it out, to cut some wood. Christman brought up that desire first. Vanskike, plaintiff and Christman took a chain saw and two axes, they all got into Christman’s car and went down into the timber on Christman’s land. Christman didn’t want the walnuts and red elms to be cut, and he first cut down what is denominated Tree No. 1.

It was stipulated: Tree No. 1 is 14 inches in diameter at the top of the stump 10 inches above the ground. Tree No. 2, 37 feet east and 9 feet 9 inches south of Tree No. 1, is 11 inches in diameter at a point 7 inches above the ground where it was cut. Tree No. 3 is 13 feet 11 inches south and 6 inches west of Tree No. 2, all measured from the centers of the trunks.

From Tree No. 1 there were some little trees to the south thereof where they wanted it to fall. Christman said, “Let’s cut the brush so we can fell the tree.” Upon being cut (by Christman) Tree No. 1 fell to the southeast but lodged at an angle of about 45 degrees in the top of Tree No. 2, a little to the west side of it. Christman said, “We got to get No. 1 down, got to get the trees down.” He was having trouble with his chain saw and said, “Don, you get your chain saw. Get it, and while I’m fixing mine we can cut some more trees.” Plaintiff then cut Tree No. 2 pretty well through but not clear off. Christman and all of them went to its northeast side and tried to push down the tree to the west, but it did not fall. They did manage to get the chain saw, stuck in the cut, loose. Vanskike then “hit it a couple of licks” with an ax on its other side (opposite to where it had been sawed), then all three tried to push it down again, but it didn’t fall. Christman said, “It must be safe. We might as well clear out some more.”

Plaintiff then sawed down Tree No. 3, which was 10 or 12 feet south of Tree No. 2 (stipulated to be 13 feet 11 inches south). Tree No. 3 fell straight to the west. Van-skike started trimming it with an ax and plaintiff “grabbed a saw and started up the tree to blocking it off,” both being on the north side of it facing south. The chain saw was running and at the time of the accident plaintiff was on the second cut of the 8 to 10 feet long logs (16 to 20 feet from the stump). Trees Nos. 1 and 2 fell 8 to 10 minutes after the three had attempted to push over Tree No. 2. Vanskike was then facing west and was 6, 8 or 10 feet from plaintiff. There was no conversation between Christman and plaintiff between the time they attempted to push over Tree No. 2, and the time the first two trees fell upon plaintiff. Vanskike heard no warning given plaintiff by Christman about working on Tree No. 3 where he was actually working. Christman was then west of Vanskike about 10 or 20 feet, and was looking back toward Trees Nos. 1 and 2. Vanskike did not see the trees fall but heard the crash, and the main part of the body, about 40 feet from the bottom, and one limb struck plaintiff.

Pertinent portions of Christman’s deposition, read as admissions against interest, are: He has been a farmer for 35 years, with 20 years’ experience in cutting up trees, timber and working with logs, in selling stove wood. On January 13, 1963, the wood was to be for plaintiff and Christ-man; and that was the first time plaintiff had come to his place and worked in the woods. Christman decided to cut Tree No. 1, and an area was cleared of underbrush to the southeast of Trees Nos. 1 and 2. He had cut a lot of trees which had lodged in the tops of other trees, and always got them down. After plaintiff removed his chain saw and no longer cut on Tree No. 2, Christman did not thereafter say anything to him about the danger of working within 12 feet of Tree No. 2. Christman, having his back to plaintiff, did not see Trees Nos. 1 and 2 fall, and did not know they had fallen until Vanskike told him._ Christman knew that plaintiff was on his knees cutting on the trunk of Tree No. 3, and that it was not possible for him to watch Trees Nos. 1 and 2 at the same time.

Plaintiff has owned two chain saws, the first, a used one, about 2 years prior to January 13, 1963. After six months, he purchased a new chain saw. He testified that chain saws are dangerous machines. His prior wood cutting experience was just in getting firewood. Christman first started the conversation by saying, “Let’s go cut some wood.” Plaintiff complained that it was too cold. Christman told him, “I could go to the timber with them and cut some wood and I could have some wood.” The day was cold and the wind was blowing from the north and west (Vanskike testified it was not blowing strongly at the scene of the accident). Plaintiff cut Tree No. 2 seven inches above the ground, and was standing on its south side with the saw blade pretty well north and south on the east side of the tree, swinging the saw around to the north. Tree No. 2 moved about 2 feet and stopped, and plaintiff remembered nothing thereafter. On cross-examination, plaintiff testified that he had cut a few trees with a chain saw from 1952 to 1961, and had seen others cut trees with a chain saw and a crosscut saw. At one time Christman and plaintiff cut up some downed tree tops left by a stave bolt man on a farm operated by plaintiff.

The parties are in controversy as to whether plaintiff was a licensee or an invitee upon Christman’s land. Viewed in the light most favorable to plaintiff, there was sufficient evidence which would have justified a finding by the jury that plaintiff was an invitee. At Christman’s behest, plaintiff was to assist him in trying out the new saw and to cut firewood. This firewood was to be shared by Christman and plaintiff. The aid in cutting down the trees and converting them into firewood was a real benefit and convenience to Christman notwithstanding the fact that plaintiff would receive part of the wood. See the leading en banc case in this state, Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 3, 22 L.R.A.,N.S., 1045, “But the situation, with reference to liability, radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure, and convenience. That change calls into play other rules of law, in order to do full and refined justice. The rule applicable to that change is that a licensee, who goes upon the premises of another by that other’s invitation, and for that other’s purposes, is no longer a bare licensee. He becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for the breach of that duty an action lies. (Citing cases) The word ‘invitation’ used in the rule covers and includes in it enticement, allurement, and inducement, if the case in judgment holds such features. Also, the invitation may be implied by a dedication, or it may arise from known customary use.” See also Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 823 [4]; Abel v. Campbell 66 Express, Inc., Mo.App., 378 S.W.2d 269, 272 [4,5]; Gruhalla v. George Moeller Construction Co., Mo.App., 391 S.W.2d 585, 594; Lynch v. Rosenthal, Mo.App., 396 S.W.2d 272, 277 [4, 5].

Although plaintiff’s status was an invitee, under the facts and circumstances of this case there was no breach of any duty resting upon Christman to make the premises safe for plaintiff, or to warn him of the danger, the assignments of negligence below and here argued. In the invitee case of Dixon v. General Grocery Company, Mo., 293 S.W.2d 415, 418, the rules of 2 Restatement, Torts, § 343, were adopted, and the court went on to say, loc. cit. 293 S.W.2d 418 [2, 3], “‘The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.’ 65 C.J.S. Negligence, § 50, p. 541. (Citing cases and authority.) ‘Thus, defendants as storekeepers are not liable for injuries resulting from open and obvious conditions which are or should be as well known to the invitee as to defendants.’ Douglas v. Douglas, Mo., 255 S.W.2d 756, 758 [5]. ‘* * * and neither does he breach his duty to such an invitee when the condition complained of is open and obvious or as apparent to the invitee as it is to the owner or proprietor, because the basis of liability in such cases is the owner’s superior knowledge. Murray v. Ralph D’Oench Co. [347 Mo. 365, 147 S.W.2d 623, 626 [1]]; * * * When the condition relied on is obvious or actually known to the invitee there is no duty on the owner to warn him. Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723 [728].’ (Citing cases.) These decisions mean that an inviter is under no duty to protect an invitee who is in an equal position to protect himself. Where the danger is obvious or known to the invitee he consents to the risk and the inviter owes no duty.”

Here, the plaintiff knew that Tree No. 1 was lodged high in Tree No. 2. He, himself, cut through the bole of Tree No. 2, leaving but 3 to 4 inches of its 11-inch diameter. His chain saw was stuck in the cut, and the three men rocked the tree sufficiently to remove the saw. Plaintiff saw the tree move about two feet after the saw and ax cuts had been made. The defendant, Christman, had no superior knowledge of the dangerous situation to that of plaintiff who helped to create the danger. Christman’s assurance, “It must be safe. We might as well clear out some more” (offered here as an excuse to relieve plaintiff of contributory negligence), does not show a superior knowledge of this open, obvious, apparent danger of which plaintiff must be held to be aware, having helped to create it. Under the foregoing authority, there was no duty upon Christman to warn plaintiff of the danger which was open, obvious and apparent to him. See also Kenward v. Hultz, Mo.App., 371 S.W.2d 344. Not only is this proposition true as to the danger in the possibility that Trees Nos. 1 and 2 might fall, but it applies to plaintiff’s claim of Christman’s negligence in clearing insufficient space into which the trees were to fall.

Plaintiff’s cited cases of Liddle v. Collins Construction Company, Mo., 283 S.W.2d 474; Fletcher v. Kemp, Mo., 327 S.W.2d 178, and Beckett v. Kiepe, Mo.App., 369 S.W.2d 258, and others, are all employer-employee cases, and are inapplicable to rules of law applied to those entering lands of another as trespassers, licensees and invitees, which rules should not be extended beyond the ever-changing conditions of work, and consequent duties to provide a safe place to work in master-servant relationships.

While it was true that the environment in which plaintiff was working when he entered the premises was then safe, but was later made unsafe by the cut in Tree No. 2, that did not constitute active negligence on defendant’s part which would entitle plaintiff to recover. Defendant did not commit any affirmative act toward plaintiff constituting negligence. Plaintiff, having helped to create the danger, and knowing of it, cannot escape those facts. His cited case, Cupp v. Montgomery, Mo. App., 408 S.W.2d 353, 360, so holds: “ ‘It is clearly the law that absence of knowledge of the dangerous condition, on the part of the plaintiff, is an essential element of plaintiff’s case.’ ”

Humanitarian negligence in its element presented here of failure to warn, is likewise inapplicable because plaintiff was already aware of the existing danger of the trees falling. Besides, that doctrine applies to the operation of a dangerous instrumentality by a defendant, with the plaintiff within the range of the same being so operated as to be in imminent peril. Here, the evidence clearly shows that defendant was some distance to the west of the trees, and was not doing anything to cause the trees to fall at the time they fell so as to be under a duty to warn plaintiff.

The judgment' is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HENLEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thomas Paul GOWER, Appellant.
    No. 52420.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion to Modify Opinion or to Transfer to Court en Banc Denied Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O’Brien, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Jerry L. Red-fern, Springfield, for appellant.
   HENLEY, Presiding Judge.

By information alleging a prior felony conviction defendant was charged with burglary, second degree, and stealing. Sections 560.070 and 560.156 (all references to sections of statutes are to RSMo 1959 and V.A.M.S.). A jury found him guilty as charged. His motion for new trial was overruled and he was sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of seven years for burglary and seven years for stealing, the sentences to run concurrently. Sections 556.280, 560.095-, 560.110. Defendant appeals.

There is no contention that the evidence is not sufficient to sustain the judgment of conviction; hence, a brief summary will suffice. On Monday, November 15,1965, at about 11:00 P.M., defendant and one Jerry Keltner broke into and entered the Little Reno Club located on a. highway by-pass between Highways 166 and 266 in Greene county; there they tore open and took $76.25 in coins from a cigarette vending machine. They were caught inside the Club. Edgar Walters, owner, and his wife live in a house approximately 100 feet east of the Club building; they had retired for the evening a few minutes before the burglary occurred. Mrs. Walters saw an automobile drive up to the building; it stopped, its lights were turned off, and two men got out and went to the building. By the time Mr. Walters could get outside his home the defendant and his companion had entered the Club; Walters could hear them tearing open a cigarette machine. Mrs. Walters immediately called the sheriff’s office and reported the burglary in progress. Within a few minutes sheriff’s deputies Jerry McCafferty and Ken Nobles arrived at the scene. Nobles stayed with the police car while McCafferty, with a gun in one hand and a flashlight in the other, walked into the Club building. As he entered he saw defendant and Keltner standing behind the bar; he called to them to stand still and raise their hands; instead, “They * * * ducked down behind the bar * * Walking closer to the bar, McCafferty identified himself as a police officer and told them he was armed; a voice behind the bar said: “I’m armed, too, and I’ll shoot * * at this instant, McCafferty saw “ * * * a hand sticking around the end of the bar with a gun in it.” He immediately stepped back and as he did so a shot was fired, missing him. The officer fired one shot in the direction from which the shot had been fired at him; he heard “ * * * a very strange laugh * * * ” and then a hand from behind the bar placed a .22 caliber H & R revolver on the bar top and “ * * * pushed it down the bar * * * defendant slowly followed that hand upwards and “ * * * stood up with his hands in the air.” Keltner remained hidden. McCafferty arrested defendant and took him out to Officer Nobles at the police car. Nobles was searching defendant when Lieutenant Ronald Wilcox of the Greene county sheriff’s office drove up and took over from Nobles the search of defendant’s person. Shortly thereafter officer McCaf-ferty and Lieutenant Wilcox entered the building and found Keltner hiding on a shelf below and behind the bar. The Club had not opened for business that day; earlier in the evening Mr. Walters had checked and found all outside entrances to the Club building securely locked. Defendant did not testify.

Two points are briefed: (1) error in refusing to strike testimony of Lieutenant Wilcox in which he related an incriminating statement involuntarily made by defendant while under arrest; ’ (2) error in the court, rather than the jury, assessing defendant’s punishment, because the court had not first complied with the provisions of § S56.280.

Lieutenant Wilcox testified that when he arrived at the scene defendant was standing in “spread eagle” fashion leaning against the police car and officer Nobles was searching him; that he took over from Nobles the search of defendant’s person; that during this search defendant “swung on me and I socked him and then fought him to the ground.” He further testified that he questioned defendant “ * * * with regard to firing a shot [at officer McCafferty] * * $ in the Little Reno Club * * * that defendant said: “Yes, I fired the gun, but I was scared and it went off accidentally.” Before Wilcox could give this answer, defendant objected on the ground that the inquiry was “ * * * purely inflammatory and having nothing to do with the crime being tried * * The objection was overruled. Six other questions were asked Wilcox on the same general subject, and then, in a conference at the Bench, counsel for defendant made further objection to testimony regarding defendant’s admission that he fired the shot. The substance of this objection was that he had been assured before trial by counsel for the state that there was not “ * * * any confession in regard to any of the charges or in any of the matters connected with this * * *that this evidence of defendant’s ' admission to Wilcox that he was the one who had fired the shot at McCafferty came as a complete surprise to counsel and that had he known of it prior to trial he would have moved to suppress the admission, because defendant had “ * * * been brutally beaten * * * by Wilcox before defendant made the ‘confession.’ ” Counsel for the state admitted that defense counsel had inquired before trial whether the state had a. confession, but he implied that the inquiry was solely whether there was a confession to the burglary and not to any particular'incriminating event or statement made during the burglary or defendant’s apprehension. He further implied that he had told counsel that the state had no confession to “the burglary," but that he had not told counsel that “He [defendant] did confess that he fired a shot * * * ” at McCafferty in the building, although he had knowledge of that confession at the time. The court said: “I am going to overrule Mr. Daniel’s [counsel for defendant] objection at this time, but I am going to certainly have to go into the legal end of this further * *

At the close of this witness’s testimony, the judge and counsel retired to the judge’s chambers where the court made further inquiry into defendant’s objection. The court asked defense counsel whether it was defendant’s position that he had not made this admission to Wilcox, or that it had been made but was made “* * * under circumstances that would make it inadmissible.” Defense counsel replied that it was defendant’s position that the admission had not been made, “ * * * but that if it were, it was done after this man [Wilcox] had beaten him up * * * ” while he was in custody. In response to another inquiry by the court, defense counsel said he wanted to offer testimony by defendant on this subject outside the hearing of the jury. At this point state’s counsel intervened and stated that it was the state’s position that defendant had waived any objection he had to this testimony; that defendant had not raised his objection on constitutional grounds before trial and he had, therefore, waived such right. At the close of the conference in chambers the court stated: “The Court is satisfied that his [defense counsel’s] position is that the man [defendant] did not make the statement, so there would be no purpose of further inquiry as to whether or not it [defendant’s admission] was voluntary.” Although the court was obviously aware that defendant’s position was that this admission was the result of physical coercion and not voluntary, no evidence was heard by the court on its voluntariness and admissibility outside the hearing of the jury. The court did not make a specific finding that defendant’s. admission was voluntary and, therefore, admissible, unless we may say that the court did so indirectly by its failure to change its tentative ruling made just before the conference in chambers.

The state contends that defendant’s admission that he shot at McCafferty was made before the altercation between defendant and Lieutenant Wilcox; defendant contends that it was made afterwards and was the result of his being “brutally beaten” and physically coerced by the Lieutenant. The record is not clear as to the sequence of these events; we cannot determine conclusively from the transcript whether defendant’s admission was before or after this altercation; nor can we determine conclusively from the transcript what the facts are concerning the circumstances surrounding the confession or admission.

The substance of parts (b), (c), (d) and (e) of defendant’s first point briefed is that the court erred in ruling that “there would be no purpose of further inquiry as to whether or not it [defendant’s admission] was voluntary.” Defendant contends that further inquiry should have been made during that conference outside the hearing of the jury; that the state should have been required at that time to prove that the admission was voluntary and, failing in that proof, the testimony pertaining to the admission should have been stricken and the jury instructed to disregard it.

The burden was on the state to prove that the incriminating admission was voluntarily made by defendant. State v. Williams, Mo., 369 S.W.2d 408, 418 [4]; State v. Bradford, Mo., 262 S.W.2d 584, 586 [1]. In State v. Washington, Mo., 399 S.W.2d 109 [12], at 1. c. 114, this court said: “The Missouri practice contemplates a preliminary or voir dire examination to determine the competency of a confession before it is presented to the jury. This is a full hearing on the voluntariness of a confession out of the presence of the jury and a finding by the court that the confession was voluntary before it is admitted in evidence. State v. Howard, Mo., 383 S.W.2d 701, 702 [1], Thereafter, the witnesses to the circumstances under which the confession was made testify before the jury. The jury then determines the probative value of the confession under the instructions of the court which direct the jury to disregard it entirely if the jury finds the confession was not voluntarily made.” Also see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

Apparently the court overlooked defendant’s position that if the admission was made it was the result of physical coercion and therefore involuntary and inadmissible. The court obviously dismissed summarily defendant’s desire to offer evidence on this issue during the conference in chambers; it thereby ignored the necessity of a full hearing on this separate issue outside the presence of the jury and the necessity of a finding and determination by the court that defendant’s admission or confession was either voluntary and therefore admissible in evidence or involuntary and inadmissible. The court erred in refusing to hear evidence on that issue; it also erred in not determining that issue based on evidence heard at a preliminary or voir dire examination, as is required by State v. Washington, supra. The result is that defendant was denied that hearing and determination to which he was constitutionally entitled. Jackson v. Denno, supra.

However, it does not necessarily follow that, for these errors, defendant is entitled to a new trial on all issues. He is entitled now only to a full, adequate evi-dentiary hearing before the trial court, without a jury, on the coercion issue, and a determination and finding by the court of whether the admission or confession was voluntary or involuntary. If the court determines that his “ * * * confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for * * * [he] has already been tried by a jury with the confession placed before it and has been found guilty * * * [;] there is no constitutional prejudice * * * if the confession is now properly found to be voluntary . and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the * * * court, at an evidentiary hearing, redetermines the facts and decides that * * * [his] confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.” Jackson v. Denno, supra, 84 S.Ct. at 1. c. 1790 [18].

In part (a) of his first point defendant contends that his admission or confession should have been excluded, because he was not first advised of his constitutional rights to remain silent, to counsel, and to consult with a friend. In support of this contention he cites Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; State v. Boykins, Mo., 399 S.W.2d 70; State v. Pughe, Mo., 403 S.W.2d 635. Defendant recognizes that Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not applicable, because the case was tried before Miranda. As related above, defendant’s admission or confession that he fired the shot was made at the police car during a search of his person for a weapon, or immediately after that search, within minutes after his apprehension inside the building and while his companion Keltner was still at large, so to speak, inside the building. Under these facts and circumstances, neither Escobedo, Boykins at 1. c. 72 [1] of 399 S.W.2d, nor Pughe at 1. c. 640 [8] of 403 S.W.2d is applicable. We have held in several recent cases that the court will not expand Escobedo beyond its facts. See State v. Dixon, Mo., 411 S. W.2d 185, and cases cited at 1. c. 186.

In his second point defendant contends that the finding of the court was insufficient to permit the court to assess the punishment under the provisions of the Habitual Criminal Act, § 556.280.

He also contends, as a part of this point, that the sentence of seven years on his conviction of stealing in connection with burglary is excessive. This sentence for stealing is excessive; the maximum sentence is five years. § 560.110.

After hearing evidence of a prior conviction, sentence and imprisonment therefor, the court made the following finding: “ * * * that defendant is an Habitual Criminal within the meaning of the Statute as defined by law.” This finding is not a sufficient compliance with the requirements of § 556.280 to authorize the court, rather than the jury, to assess punishment on conviction. State v. Garrett et al., Mo., 416 S.W.2d 116 (Division 2 opinion handed down June 12, 1967); State v. Hill, Mo., 371 S.W.2d 278, 282 [7, 9]. In Garrett the court said: “ * * * in order to make the act applicable the Court must find that the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary and that he had subsequently been imprisoned, fined, paroled or placed on probation therefor (in the alternative, to accord with the evidence).” Unless the court can, and does, make these findings the specific requirements of the statute have not been met and the court would be without authority to assess the punishment on conviction. The sentence is void, State v. Hill, supra, 1. c. 283, and for this and other reasons, the judgment must be reversed and the cause remanded.

The cause will be remanded so that the trial court may bring defendant, with counsel, before it at an appropriate time for these purposes:

1. A full evidentiary hearing on the coercion issue and a determination and finding by the court whether the admission or confession was voluntary or involuntary. If, after such hearing, the court finds and determines that it was involuntary, then it shall grant a new trial on all issues, without his admission or confession being admitted in evidence.

2. If the court finds and determines that the admission or confession was voluntary, it shall then further consider the evidence already submitted, and any such additional evidence as may be submitted, on the issue of prior conviction, sentence, and imprisonment, fine, parole or probation therefor; and, it shall make and enter appropriate findings thereon. If the court finds this issue against defendant, it shall proceed to grant allocution and render proper judgment and sentence; in the alternative, if the court finds this issue in favor of defendant, it shall grant him a new trial on all issues. See State v. Hill, supra, 1. c. 282-283.

We find no error in those parts of the record we are required to examine under Criminal Rule 28.02, V.A.M.R., except those related above pertaining to the judgment and sentence.

The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.

SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.

      . We note, parenthetically, that defendant did not request, and the court did not give, an instruction submitting to the jury the issue of voluntariness of the admission or confession. Parenthetically again, we note that unless requested by defendant he would be in no position to complain of the court’s failure to give an instruction on this collateral issue. State v. Pughe. Mo., 403 S.W.2d 635, 641 [11, 12].


author: HOLMAN, Judge.

text:
    Alvie WILCOX, Guardian of the Estate of James E. Wilcox, a Minor, (Plaintiff) Appellant, v. ST. LOUIS-SOUTHWESTERN RAILROAD COMPANY, a Corporation, and Norvel W. Duncan, Administrator of the Estate of William E. Childs, Deceased, (Defendants) Respondents.
    No. 52204.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.

      Charles M. Cable, Kennett, James W. Jeans, St. Louis, for appellant.
    Coburn, Croft & Kohn, Thomas L. Croft, Alan C. Kohn, St. Louis, for defendant-respondent, St. Louis Southwestern Railroad Co.
   HOLMAN, Judge.

Plaintiff, through his guardian, filed this suit in an effort to recover damages in the amount of $500,000 for personal injuries he received when the car in which he was riding was struck by a train. Defendants are St. Louis-Southwestern Railroad Company and Norvel W. Duncan, administrator of the estate of the driver of the car. The jury returned a verdict for plaintiff and against Duncan in the sum of $108,000, and in favor of the defendant railroad company. Plaintiff has duly appealed and his only contentions here relate to the admission of certain evidence offered by the railroad company.

Plaintiff’s case against the railroad was submitted upon the theory that his injuries resulted from the negligence of the engineer in that he “knew or by the use of ordinary care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened the speed of the train but he failed to do so.”

The collision in question occurred about noon on September 18, 1964. Earlier that morning plaintiff’s uncle, William E. Childs, the driver of the car involved, accompanied by his father-in-law, Mr. Mize, had stopped by the Wilcox home. When they indicated that they planned to go fishing plaintiff and his younger brother John were given permission to go with them. They were en route to a “fishing spot” when the collision occurred. It was a bright clear day and the pavement was dry. The accident occurred on Highway “K”, a north-south blacktop public road 18 feet wide. A single track of the defendant railroad company crossed Highway K at an angle in a northeasterly-southwesterly direction. The track is straight and level. The road is straight and as it approaches the track from the south there is a gradual rise of about one foot every 100 feet for a distance of 300 feet. A railroad crossbuck sign was located 20 feet south of the nearest rail six feet east of the east edge of the highway. A house was located on the east side of the highway approximately 700 feet south of the center of the track. There was a railroad warning sign 604 feet south of the crossing. A tree frequently referred to in the evidence was located 371 feet east of the center of the highway on the south edge of the railroad right-of-way. The train was approximately 150 feet in length and consisted of a Baldwin switcher-type locomotive pulling an empty flatcar and a caboose. The locomotive was traveling rear end first which placed the engineer on the left side of the cab. The head brakeman, Earl Venable, was riding on the right side of the cab.

Mr. Childs and Mr. Mize were both killed in the collision, and plaintiff and his brother were injured in such a manner that neither retained any memory of the facts relating to the collision.

Harry Johnson, the engineer on the locomotive at the time in question, called as a witness by plaintiff, testified that the engine had no speedometer or speed tape, but he gave it as his “estimate or best judgment” that the train was traveling from 30 to 32 miles per hour as it approached the crossing. He further testified that he saw the automobile approaching from the south when it was about 700 feet from the crossing and was going at a speed which he estimated at 60 m.p.h.; that the engine was then 371 feet from the crossing; that he blew the whistle continuously after he saw the car, giving first the normal whistle and then a series of short alarm whistles as the train neared the crossing; that he noticed a slackening of the speed of the automobile as it “drifted” to the right; that although he had his hand on the brake lever from the time he first saw the automobile he did not make any application of the brake until he made a service application four or five feet before impact, and at the moment of impact made an emergency application. Apparently his explanation for not having applied the brake earlier was that after the car got to a point where it could not have been stopped before reaching the crossing, he knew he could not have applied the brakes and slowed the train before it reached the crossing. He stated further that the car was traveling from 25 to 30 m.p.h. at the time of the collision, and that it was his opinion that the car’s stopping distance at a speed of 60 m.p.h. was 251 feet.

On direct examination Mr. Johnson stated that he could have slowed the train to 20 m.p.h. in 100 feet. On cross-examination he attempted to explain that answer by stating that he meant that such reduction could be made in 100 feet after the brakes took effect; that there is a lapse of five or six seconds after either a service or emergency application before there is any reduction in the speed of the train.

Robert Boehlow, a driver’s education instructor, testified that an automobile in good condition traveling at a speed of 60 m.p.h. could be stopped in 272 feet, of which 66 feet is reaction time and 206 feet braking distance; that a car going 25 m.p.h. would move at the rate of 38 feet per second, and at 30 m.p.h. would move at 44 feet per second ; that the Chevrolet Nova here involved was 15 feet 7 inches long and that it would have passed' the 11-foot-wide locomotive in 2⅞4 of a second traveling 30 m.p.h., and in ¾ of a second at 25 m.p.h.

A highway patrolman, Richard Hurst, testified that he arrived at the scene shortly after the collision and that he found a skid mark which began 136 feet south of the rail but which left the highway on the right side 38 feet south of the rail. From the skid mark and other evidence he estimated the speed of the automobile at 50 m.p.h. when the brakes were applied and 25 m.p.h. at the time of impact. He further stated that the crossarm located just south of the crossing had been knocked down and that his measurements showed that the train stopped 395 feet beyond the point of impact.

As indicated, the only points raised on this appeal relate to the admission of certain testimony concerning brake tests made by the defendant railroad company on January 19, 1966. Plaintiff contends that if there had been a reduction of the speed of the train to the extent that it would have arrived at the collision point about ¾ of a second later than it did, the car would have crossed the tracks ahead of the train and the collision would not have occurred. The day the tests were made was a very cold dry day. Present were John William Bland, professional engineer, Clifford Ki-fer, District Engineer for Westinghouse Air Brake Company, and Edward E. Bergman, a retired railroad employee with considerable air brake experience. Also present were the following employees of defendant railroad: Ralph Miller, road foreman of •engines, J. R. Johnson, conductor, William Ware, superintendent of the branch line involved, Earl Venable, brakeman, and the company attorneys. The train used in the tests consisted of a Baldwin engine, No. 1024, which was purchased at about the same time and was said to be a “sister engine” of the one involved in the collision, the same type flatcar, and the identical caboose as those on the accident train. Distance marks were made every 44 feet for some distance east of the crossing. Mr. Bland was stationed at a point near the crossing and Mr. Kifer at a point 220 feet east of the crossing. Bergman and Miller were in the cab. The test engine was equipped with a speedometer. The first test was made in order to test the accuracy of the speedometer. The engineer ran the train toward the crossing at a speed of 30 m.p.h. As it passed Kifer he made a signal with his arm, at which time Bland, on the ground, and Bergman in the cab, started their stop watches. When the train reached Bland, the watches were stopped and both showed that the train had used five seconds in moving 220 feet, which indicated that it had traveled at 30 m.p.h. The second test was performed in exactly the same manner as the first, except that when the engine passed Kifer, the engineer made an emergency application of the brake and the stop watches showed that it had taken five seconds to traverse the 220 feet, thus indicating that there had been no slackening of the speed of the train in that distance. However, the total stopping distance of the train on the second test was measured to be 497 feet. Since the stopping distance on the date of the collision was 395 feet after application of the emergency brake, a further test was made in order to determine the speed a train would be traveling in order for the emergency brake to stop it in approximately 395 feet. A test of the train operating at 27 m.p.h. showed a total stopping distance of 402 feet, slightly more than the stopping distance on the date of the accident.' Also, the test at 27 m.p.h. showed that the train began to slacken speed when it had traveled 178 feet after application of the emergency brake.

The first contention is that the court erred “in permitting defendant to adduce evidence concerning a test which had been conducted by the railroad for the purpose of ascertaining the capacity of a Baldwin switcher engine pulling an empty flatcar and a caboose to slacken speed with an emergency braking action while traveling at a speed of thirty miles per hour.” It is said that the validity of the test depended upon proof that the test conditions were substantially similar to the conditions which existed on the day of the collision, and that there was no direct evidence concerning the condition of the engine on the accident train. We do not agree that the court erred in that regard. It is elementary that evidence of experiments is admissible, in the discretion of the trial court, upon a showing of similar conditions. We have said that, generally speaking, “experimental evidence is admissible, in the sound judicial discretion of the trial court, when it is shown that the experiment was conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit. However, it is not required that the conditions surrounding the experiment should have been precisely identical with those surrounding the occurrence under investigation; and, if the conditions were substantially similar, the differences in condition are for the jury in evaluating the weight to be given such evidence.” Faught v. Washam, Mo., 329 S.W.2d 588, 598. The admission of evidence of tests much like those performed in the instant case was approved in Burg v. Chicago, R. I. & P. Ry Co., 90 Iowa 106, 57 N.W. 680 [5], and Washington v. Long Island Railroad Co., 13 A.D.2d 710, 214 N.Y.S.2d 115 [3],

We think the evidence showed that the type and condition of the test engine (No. 1024) was substantially similar to the accident engine (No. 1022). They were shown to be the same model and type of Baldwin locomotive and were purchased at about the same time. There was evidence from which it reasonably could have been found that they were in substantially the same condition. Ralph Miller, road foreman of engines for defendant railroad, testified that the brakes on the test engine were in “perfect condition.” He further stated that the brakes on each of the company’s engines are checked in all respects, and any defects corrected, at the end of each trip. That tends to prove that such a check was made on the accident engine after it returned to Malden, Missouri, the night before the collision. Mr. Bergman also testified that “there would be no difference” in the condition of the brakes on the two engines. The evidence heretofore stated would warrant a finding that the brakes on the accident engine were in good condition at the time of the collision. Our factual statement will also indicate that the general conditions at the time of the tests were substantially similar to the conditions at the time of the collision. While it was shown to have been a much colder day when the tests were made, there was evidence to the effect that heat increases the stopping distance of a train and hence plaintiff could not have been prejudiced by that difference. We rule that the trial court did not abuse its discretion in admitting evidence of the tests herein described. We have carefully examined the cases cited by plaintiff and find that they involve different factual situations and do not support a conclusion different from that we have reached.

The two men in the cab of the accident engine expressed the opinion that the train was traveling at a speed of from 30 to 32 m.p.h. as it approached the crossing. The train stopped in 395 feet after application of the emergency brake. When the tests were made the train, being operated at a speed of 30 m.p.h., came to a stop 497 feet after the emergency brake was applied. Plaintiff has briefed the point that the court erred in permitting Mr. Kifer to testify (on the basis of that evidence) to the conclusion that “this train was not traveling thirty miles an hour, that it had to be somewhat less than thirty to come up with this stopping distance of approximately three hundred and ninety-five feet.” Plaintiff also contends that the court erred in admitting evidence of tests showing the slackening capacity of the test engine at a speed of 27 m.p.h. since the only testimony concerning the speed of the train was that it was traveling from 30 to 32 m.p.h.

We have concluded that we need not rule those contentions on the merits. This for the reason that the evidence was beneficial to plaintiff. For an error to require a reversal it must have been prejudicial to the complaining party. Smith v. St. Louis Public Service Co., Mo., 277 S.W.2d 498. The instant evidence tended to prove that the accident train was traveling at a speed of 27 m.p.h. The slacken-, ing distance at that speed would be less than at a speed of 30 m.p.h. The test evidence showed that at 27 m.p.h. the train began to slacken speed at 178 feet .after the emergency application, while at 30 m.p.h. the train traveled more than 220 feet before any slackening occurred. Therefore, even if we assume that the evidence complained of was erroneously admitted, since it was actually beneficial to plaintiff it could not have been prejudicial and its admission would not require a reversal of the judgment.

While it is not assigned as a spe-' cific point relied on, plaintiff frequently makes the statement in his brief that since the stopping distance of the test train at 30 m.p.h. was 497 feet, 102 feet more than the stopping distance of the accident train, “the test was obviously no good.” We do not agree with that conclusion. It is based on the absolute assumption that the accident train was traveling at a speed of 30 m.p.h. While that was the opinion testimony of the two witnesses in the cab of the engine, the railroad company is not conclusively bound by those estimates. Rudin v. Moss, Mo., 349 S.W.2d 893 [2]. It has been said that such “statements pertaining to speeds or distances obviously were not positive declarations of fact but were so phrased and qualified that they clearly were intended to be, and indeed were, nothing more than inexact estimates with all of the frailties inherent in that character of statement.” Jones v. Fritz, Mo.App., 353 S.W.2d 393, 395. Obviously, since there was no speedometer on the engine Mr. Johnson and Mr. Venable would not necessarily have been able to state the exact speed of the train. Therefore, the positive conclusion that the tests were inaccurate and invalid is not warranted. The jury could form its own conclusions from all the evidence in making its findings.

The defendant railroad company has also briefed the contention that plaintiff failed to make a submissible case, but the conclusion we have reached makes it unnecessary to consider that point.

The judgment is affirmed.

HENLEY, P. J., and SEILER, J., concur.

STORCKMAN, J., not sitting when cause was submitted.