author: BARRETT, Commissioner.

text:
    Alois J. RATERMANN et al., Respondents, v. George RATERMANN et al., Defendants, Madeline Kreikemeier, Appellant.
    No. 51590.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.

      Forrest M. Hemker, St. Louis, Greens-felder, Hemker, Wiese, Gale & Chappelow, St. Louis, of counsel, for respondents Alois J. Ratermann, Edward E. Ratermann, Marcella Ratermann Sheridan, Mary Rater-mann Molleras and Alois J. Ratermann and Edward E. Ratermann, Coexecutors Under Wills of A1 Ratermann and Theresa Rater-mann, Deceased.
    C. Perry Bascom, Bryan, Cave, McPhee-ters & McRoberts, St. Louis, for appellant.
   BARRETT, Commissioner.

This is an action by executors and others to construe certain trusts, particularly the language of three of nine irrevocable inter vivos trusts created by Henry Ratermann, Sr., on May 26, 1905. Ultimately the trusts were all for the benefit of Mr. Ratermann’s wife Catherine and their eight sons and daughters for life with gifts over upon termination of the trusts. One of the sons, Charles, was an incompetent, was never married and had no children. One of the daughters, Sophia, together with her husband, Joseph Kreikemeier, on September 6, 1918, adopted a son, Victor. Sophia died in 1928 and on April 11, 1931, her husband, Joseph, adopted Madeline. Victor died intestate on September 6, 1961, predeceased by his adoptive father Joseph. The trust for the benefit of Charles terminated upon his death on September 17, 1958, and the other two trusts involved here, the one for the settlor’s wife Catherine and the other for his daughter Sophia, terminated on February 18, 1953, fifteen years after his death. Madeline Kreikemeier claims an interest of the value of $28,000 in these three trusts. In the language of her brief, she claims that interest “as the sole heir of Victor,” she says “that although she was adopted by only one of the adoptive parents of Victor Kreikemeier, she has thereby become, to all intents and purposes, a natural sister of Victor Kreikemeier, and that she is entitled to succeed to any interests he may have derived in consequence of his having been adopted by Sophia Ratermann Kreikemeier and having thus become ‘issue’ of Sophia and an ‘heir’ of the settlor.” Thus Madeline says that she is not claiming to share in the three trusts “in her own right but as the sole heir of Victor Kreikemeier, deceased intestate, her brother by adoption.” The other life beneficiaries left children or grandchildren who succeeded to the corpus of the other six trusts on termination and only the trusts for Charles, Sophia, and their mother are involved here. The trial court found that Madeline had no interest whatever in the Ratermann trusts and she has appealed.

Insofar as material, the question presented here turns upon the construction to be placed upon this language in the three trusts, first to the wife Catherine who predeceased her husband:

“ * * * the remainder shall vest absolutely in my beloved children Henry, Jr., George, Katie, Charles, Sophia, Alois, Regina and Joseph share and share alike subject to the provisions hereafter made and provided that in case any of my said children be dead, the issue of such deceased child shall take the portion the deceased father or mother would have taken if living, the division to he per stirpes and not per capita, and in default of such issue my heirs shall take per stirpes and not per capita.”

Second, as to the daughter Sophia, there was a conclusion excluding her husband from any benefit, enjoyment or interference and free from any “marital rights” of any husband, but as to the gift over:

“If my said daughter Sophia Rater-mann die leaving issue, such issue shall together receive and take as much as the said Sophia Ratermann would have taken hereunder, if living, but the division shall be according to the root (per stirpes) and not by the head (per capita) and if said Sophia Ratermann die without leaving issue my heirs shall take per stirpes and not per capita.”

And third, as to his son Charles, “(t)here being a necessity for special provision for my son Charles on account of his misfortune,” the settlor concluded:

“ * * * if my said son die leaving issue, said issue shall take per stirpes and not per capita and if he leave no issue then my heirs shall take per stirpes and not per capita and full title shall not vest in said issue or in my heirs as the case may be, until fifteen (15) years after my death * *

The appellant, Madeline, contends that the language of the quoted provisions designate and define “a class” and constitute “a class gift” and concludes because of the rather recently (1917, 1943) changed and liberal policy toward adopted persons (RS Mo 1959, §§ 453.090, 453.150, V.A.M.S.) adopted children fall within the class “limited to issue of the primary beneficiaries (the life tenant wife and children) or heirs of the settlor” because the statutes now place “an adopted child in the bloodstream both of his adoptive parents and of the ancestors of the adoptive parents.” The appellant urges that the court erred as a matter of law in concluding that Victor, the adopted son of Sophia and Joseph Kreike-meier, was not within the class of distrib-utees designated by the settlor. She says that Victor was entitled to share in the Ratermann trusts “both as issue of Sophia and as an heir of the settlor (Henry Rater-mann, Sr.) because the law in effect at the time of termination of the trusts governed his status as such and brought him within those classes.” To reach this result the appellant contends that the meaning of the word “child” and other definitive language is not to be determined as of the date of the trusts, 1905, but that the settlor’s intent, particularly as to adopted persons, is to be determined by the law in force as of the date when the trusts terminated, here in 1953 and 1961. According to the law on those dates, the termination of the trusts, the appellant contends that an adopted child “derived the same status from this law as would have been accorded a natural child.” Her principal reliance to establish these propositions is upon the cases of Vreeland v. Vreeland, Mo., 296 S.W.2d 55 and St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685. Having thus demonstrated these propositions it is concluded that “Appellant Madeline Kreikemeier, as the adoptive sister of Victor Kreikemeier, is entitled to succeed to his interest in the trust estates by intestate succession because both the law and public policy respective of adoption in Missouri place her in the relation of a natural sister to him.”

The appellant’s claims have been set forth in more or less elaborate detail to the end that her theory of her right to succeed to an interest in these inter vivos trusts may plainly appear inasmuch as it is not proposed in this opinion to analyze and consider the arguments one by one. There are currently under submission in this court three cases concerned with the rights of adopted persons, they are all complex and perplexing and unless compelled by the particular case it is neither necessary nor desirable to attempt a general consideration of the law of adoption, its philosophy and theory. In the particular circumstances of this record there are precisely controlling cases and they distinguish the cases relied upon by the appellant, including Commerce Trust Co. v. Weed, Mo., 318 S.W.2d 289, and it is not necessary to elaborate on them here and again note the distinctions in facts or controlling principles. The controlling cases to list only four are First National Bank of Kansas City v. Sullivan, Mo., 394 S.W.2d 273; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 133 A.L.R. 586; Melek v. Curators of University of Missouri, 213 Mo.App. 572, 250 S.W. 614 and Wyeth v. Merchant, D.C., 34 F.Supp. 785. Relevant annotations noting the cases and confined to deeds and inter vivos instruments, excluding will cases, are 43 A.L.R.2d 1183 and 86 A.L.R.2d 115.

The only general rules to note, and upon which all the cases are based, are that each case of necessity is determined upon its peculiar facts and the particular instrument to be construed all to the ultimate and primary end of effectuating the settlor’s intention. St. Louis Union Trust Co. v. Hamilton, 361 Mo. 548, 235 S.W.2d 241. And “(t)he determination of the right of an adopted child to succeed to interests in property which by the terms of a deed of conveyance, a trust indenture, a will, or other instrument, are limited to ‘a child,’ ‘children,’ ‘issue,’ ‘heirs,’ ‘legal heirs,’ or ‘heirs of the body,’ etc., of the person or class of persons named in such instrument, is affected by, and depends upon many diverse factors, especially' the content and phraseology of the particular instruments involved.” 2 Am.Jur.2d (Adoption) § 92, p. 933. Before going further, as the respondents remind, “It is essential that one keep in mind that appellant, Madeline Kreike-meier, is a child adopted April 11, 1931, by Joseph Kreikemeier, surviving spouse of Sophia Ratermann Kreikemeier, she having died January 11, 1928. Appellant, Madeline Kreikemeier, does not claim as issue of Sophia or heir of the grantor, Henry Rater-mann, Sr., but as the sole heir of Victor, the adopted child of Sophia and Joseph Kreikemeier under date of September 6, 1918.”

But as stated, both factually and legally, this appeal is governed by prior cases. In the first place and determinative of the appellant’s basic argument, it has been pointed out repeatedly in both wills and inter vivos instruments and “(i)t is fundamental that it is testator’s intention at the time of the execution of the instrument— as of the time of the creation of the trust— that we seek to determine. * * * This is in accordance with the general rule that whether an adopted child is embraced within the meaning of a described class of beneficiaries in a will is governed by the law in force at the time the will or other instrument was executed.” First National Bank of Kansas City v. Sullivan, 394 S.W.2d 1. c. 281. In other words the settlor’s beneficiaries were identifiable as of the date the trusts terminated but his intention and the qualification of those who were to take was determined according to the law in effect when the trusts were created, here in 1905. In Leeper v. Leeper, supra, a deed executed in 1900 left property to “William F. Leeper, during his natural life and at his death to his heirs, but should he die without children then to his full brothers and their heirs.” In 1934 William F. and his wife adopted Marvin and the question was whether he qualified as "children” within the meaning of “his heirs.” In answering several of the arguments made by the appellant here, the court first held that the law in force in 1900 governed unaffected by the 1917 amendment to the adoption laws. It is not necessary to set forth all the factors considered by the court, the crux of the matter was that under the adoption statute in force in 1900 (RSMo 1899, § 5248) an adopted child did not fall within “the classification of a natural born child.” In 1900 the adopted child inherited from its adopting parent but an adopted child was “not an heir of collateral kindred of the adopting parents.” The court concluded: “As the statutes and decisions of this state stood at the date of the execution and delivery of the deed, an adopted child was not included in the word ‘children.’ * * * From the deed and surrounding circumstances, we hold that the grantor did not intend to include an adopted child of William F. Leeper within the meaning of the word ‘children’ as that word was used in the deed.” Leeper v. Leeper, 347 Mo. 1. c. 448-449, 451, 147 S.W.2d 1. c. 662-663, 664. The language most frequently employed in the Ratermann trust instruments is “issue of such deceased child,” “and in default of such issue my heirs shall take per stirpes and not per capita,” or “if said Sophia Ratermann die without leaving issue my heirs shall take per stirpes and not per capita,” or as to Charles “if he leave no issue then my heirs shall take per stirpes and not per capita.” When the Ratermann trusts were established in 1905 the word “issue” and related terms had a well-known meaning, they referred to and applied to “a child of the blood” and did not include adopted children of a settlor’s grandchild. Wyeth v. Merchant, 34 F.Supp. 1. c. 789-790. Madeline’s status and relationship with respect to the Ratermann trusts is plainly governed by these prior cases and therefore the judgment is affirmed.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

EAGER, P. J., FINCH and DONNELLY, JJ., and WOLFE, Special Judge, concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Herbert QUINN, Appellant.
    No. 51900.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 12, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O’Brien, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    James E. Reeves, Ward & Reeves, Ca-ruthersville, for appellant.
   DONNELLY, Judge.

Appellant, Herbert Quinn, was convicted of forcible rape under § 559.260 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Pemiscot County, Missouri, and his punishment was assessed at imprisonment in the custody of the Department of Corrections for a term of ten years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court.

Appellant contends the trial court erred in not granting his motion for new trial because there was prejudicial and improper contact with the jury by the sheriff after the jury had retired for deliberation.

In support of his motion for new trial, appellant testified that after the jury retired to the jury room to deliberate, he observed the sheriff open the door of the jury room, look in, go to a desk in the courtroom, pick up a tablet, tear some sheets out of it, take a pencil and go into the jury room and close the door. Appellant testified the sheriff was in the jury room “a couple of minutes” and then came out of the jury room. In response to this testimony, the State made no showing whatsoever. Section 546.240 RSMo 1959, V.A.M.S., provides, among other things, that when the jury retires to deliberate upon its verdict, they are to be in charge of an officer, who is to keep them together and not permit any person to speak or communicate with them, nor do so himself, unless by order of the Court or to ask whether they have agreed upon their verdict. Appellant testified that the Judge was not present in the courtroom when the sheriff went into the jury room. In State v. Hayes, 323 Mo. 578, 19 S.W.2d 883, at 887, this Court held that the deputy sheriff violated what is now § 546.240 RSMo 1959, V.A.M.S., “ * * * by his presence in the same room with the jurors during their deliberations * * In State v. Jones, 363 Mo. 998, 255 S.W.2d 801, at 806, this Court quoted with approval from Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921, as follows: ‘“Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’” Appellant’s testimony made a prima facie showing of violation of § 546.240 RSMo 1959, V.A.M.S. The State had the burden, under the circumstances, of affirmatively showing that the jurors were not improperly influenced. This burden was not sustained. Cf. State v. Cox, Mo.Sup., 333 S.W.2d 46, 50. On this record, the case must he reversed and remanded for new trial.

Appellant raises other questions which must be considered on this appeal. He contends the trial court erred in overruling his motion for directed verdict because the evidence of prosecutrix was of a contradictory nature, was not convincing, and leaves the mind in doubt.

“The uncorroborated evidence of the prosecutrix will sustain a conviction of incest or rape, but when the evidence of the prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case her testimony is not convincing but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained.” State v. Akers, Mo.Sup., 328 S.W.2d 31, 33.

Counsel for appellant fairly summarizes the testimony of prosecutrix and, because of the nature of appellant’s assignment of error, we adopt his statement of evidence elicited from her. Prosecutrix testified that on the morning of September 26, 1964, a colored man broke in on her after her husband had left to go hunting and attacked her. He woke her up by touching her and after she had opened her eyes and saw it was a Negro man, he slammed his hands over her face and told her if she screamed he would kill her and her baby. He kept the knife on her throat at all times and kept hitting her in the face. She testified she saw glimpses of him when he would “close” his hand from her face as there was a light outside the window and the curtain was pulled back so that the light shined into the bedroom. He was of medium height, kind of tall, had short curly hair and a mustache; he was wearing a dark suit and a white shirt without a necktie and she smelled alcohol on his breath and felt his mustache when he kissed her. She stated that he had intercourse with her.

She testified that there were no lights on in the bedroom but there was a light in the living room and by the bedroom door that showed into the bedroom. There was a light outside the house that showed through the window and the blind was up a little and the curtain was pulled back. The first time she saw him was when he touched her and she turned over, thinking it was her husband. She saw him to recognize him during the attack and after the attack. After the attack was over, she watched him leave and got a good look at him as he went out the bedroom door, but she did not see him as he went out the front door. As he went out the bedroom door, there was a light and she got a good look at him then and also when he was attacking her. He was dressed in a dark suit.

The attack occurred around 4:00 a. m. and the shock of seeing a strange colored man in her bedroom excited her and she got rather hysterical and upset. The only identifying mark she noticed was the mustache, and did not notice any scars. She noted the mustache when he kissed her and she felt it, and he had alcohol on his breath. He was not real tall and not real short. When she gave the description of him to the police officer, she told him that the man who attacked her wasn’t real dark, had on a dark suit, white shirt and no necktie, and had curly hair and was well dressed. She did not call the police herself, but she called her sister-in-law and her mother. She got a glimpse of him during the attack, but she saw him completely when he went out the door of the bedroom.

There was no medical evidence to corroborate the attack, and there was no clothing found by the officers which matched prosecutrix’s description of the clothes her assailant had been wearing. There were no fingerprints or other evidence found at the scene. The description of the assailant furnished by the prosecu-trix would fit a number of colored persons in the locality. The description given the police did not cause them to pick up appellant until nearly two days had elapsed.

On September 27, 1964, appellant was picked up by the police and was identified by the prosecutrix at the city hall as her assailant. She again identified him in a lineup at the county jail on September 28, 1964, and at the trial.

Witness J. T. Simms testified that he and the husband of prosecutrix, with others, went squirrel hunting the morning of September 26, 1964. He arrived at the home of prosecutrix and her husband at 3:45 a. m. and waited, parked in his pickup in front of the house, for about ten minutes. During that time a colored man came by on the sidewalk. At the trial, Simms identified appellant as the man he observed at that time.

Appellant cites State v. Burton, 355 Mo. 467, 196 S.W.2d 621, and State v. Tevis, 234 Mo. 276, 136 S.W. 339. “In the Burton case, the prosecutrix voluntarily remained with the boys after she claimed rape when they went to a dance and allowed them to take her home, although she had several opportunities to leave them before and after the dance, and said nothing about it when she came home. The case was reversed and remanded for a new trial because of this doubtful testimony. In the Tevis incest case, prosecutrix claimed incestuous conduct for five years, as to which she waited 13 months after the last act before telling her mother. It was likewise reversed and remanded for a new trial.” State v. Warren, Mo.Sup., 366 S.W.2d 311, 313. The evidence in the Burton and Tevis cases was quite different from this case. Prosecutrix reported the incident five or ten minutes after the attack. It is our opinion that application of the rule set forth from State v. Akers, supra, does not assist appellant. The evidence was sufficient to make a case for the jury and appellant’s motion for directed verdict of acquittal was properly overruled. State v. White, Mo.Sup., 195 S.W. 994; State v. Ross, Mo.Sup., 196 S.W.2d 799; State v. Thurston, Mo.Sup., 242 S.W. 908; State v. Moore, Mo.Sup., 143 S.W.2d 288.

Appellant contends that he was not given a speedy trial guaranteed him by Section 18(a) of Article I of the Constitution of Missouri, V.A.M.S. and the due process clause of the Fourteenth Amendment to the United States Constitution. He was arrested September 27, 1964, and his preliminary examination was set for October 14, 1964. On October 13, 1964, the preliminary examination was continued for ten days to October 23, 1964. On October 20, 1964, it was continued for ten days to October 30, 1964. On October 30, 1964, it was continued five days to November 4, 1964. The preliminary examination was held on November 4, 1964, and appellant was bound over to the Circuit Court. There is no showing that Rule 23.06, V.A. M.R., was violated. Terms of court in the Circuit Court of Pemiscot County began November 2, 1964, March 1, 1965, and July 5, 1965. Section 478.293 RSMo 1959, V. A.M.S. On February 2, 1965, the information was filed and John R. Fowlkes was appointed counsel for appellant. On March 1, 1965, at the request of appellant, Fowlkes was relieved and James E. Reeves was appointed counsel for appellant. On May 4, 1965, appellant waived formal arraignment, entered his plea of not guilty, and the case was set for trial July 21, 1965. On July 21, 1965, the case was continued on application of appellant to September 23, 1965. Trial was had on September 23, 1965. On this record, appellant was not entitled to be discharged. State v. Amerison, Mo.Sup., 399 S.W.2d 53; State v. Nelson, Mo.Sup., 279 S.W. 401.

Appellant complains of the failure to afford him counsel at the preliminary hearing. The question of affording an accused counsel at the preliminary hearing was treated at some length in State v. McClain, Mo., 404 S.W.2d 186, filed June 13, 1966. where this Court reaffirmed “that the mere lack of counsel at a preliminary hearing held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right.” Appellant’s contention is without merit.

Appellant further complains of the failure, upon request, to furnish him a copy of the transcript of the evidence taken at the preliminary hearing. A transcript of the preliminary hearing, in all cases of homicide, is provided for by statute and by rule. Sections 544.370 and 554.390 RSMo 1959, V.A.M.S.; Rules 23.-12 and 23.11, V.A.M.R. These statutes and rules are not applicable in this case of alleged forcible rape. It was not error to fail to reduce the evidence at the preliminary hearing to writing and to fail to furnish appellant a copy of the transcript of the evidence adduced therein. 22 C. J.S. Criminal Law § 341.

The judgment is reversed and the cause remanded for new trial.

All concur.


author: HYDE, Judge.

text:
    Robert H. CAMPBELL, (Plaintiff) Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, a Corporation, and Clarence Horstmeyer and Jack W. Robb, (Defendants) Respondents.
    No. 51042.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion for Rehearing and to Transfer to Court En Banc Denied Sept. 12, 1966.

      Robert T. Ebert, Robert R. Young, and Barksdale, Abbott & Wallace, St. Louis, for appellant.
    Lucas & Murphy, Joseph A. Murphy, St. Louis, for respondent, Chicago, B. & Q. R. Co.
    Morris, Wuestling & James, William James, St. Louis, for respondents, Clarence Horstmeyer and Jack W. Robb.
   HYDE, Judge.

Action for $100,000.00 damages for personal injuries from a collision with the Railroad’s engine; verdict and judgment for defendants and plaintiff has appealed. The case was submitted on humanitarian doctrine negligence; and defendants’ brief contains no point claiming plaintiff failed to make a submissible case.

Plaintiff’s testimony was that he was driving south on Highway 161 about 2:00 P.M. on December 22, 1961, toward the town of Buell. The weather was overcast with mist but he had the window on the driver’s side open. He was not familiar with the road, but it was straight for 1000 feet north of the railroad crossing and slightly upgrade. Defendant Railroad’s tracks ran east and west, crossing the Highway about 350 feet east of the Buell depot. (This is distance shown on defendants’ photographs in evidence.) About 500 feet north of the crossing there was a sign with “City Limits — Buell” on it. About 300 feet north of the crossing there was a railroad crossing sign. Plaintiff’s speed was about 50 miles per hour when he passed these signs. He looked west when he reached the railroad crossing sign but could not see much of the track because of brush along the west side of the road, beginning 235 to 250 feet north of the crossing. He looked east and saw nothing. He would have had a clear view of track to and beyond the depot at 213 feet but continued at 50 miles per hour until he was about 125 feet north of the tracks when he looked west again and saw the engine opposite the depot. The train was going about 40 miles per hour and he heard no whistle or bell at any time. He put on his brakes hard and seeing a gravel service road running west from the Highway along the tracks attempted to turn into it. When he reached it, his speed was about 10 miles per hour but his car was skidding. Between 10 and 15 feet west of the Highway the left front part of his car collided with the left front part of the engine behind the front step. Defendants’ evidence was that the collision was entirely on the traveled part of the Highway. Plaintiff said he could have brought his car to a stop at 50 miles per hour within 175 feet after the first appearance of danger.

Defendant’s engine was being operated by the fireman J. W. Robb, who was on the right (south) side of the engine. The engineer Clarence Horstmeyer was on left (north) side and saw plaintiff approaching on the Highway. He did not say anything to Robb until the collision occurred at the crossing, after which Robb by emergency application of the brakes stopped the train in about 750 feet. (Horstmeyer’s estimate was 650 feet.) Defendants’ evidence was that at 40 miles per hour the train would go from 200 to 240 feet after application of the brakes before there would have been any appreciable slackening of its speed. However, Robb answered “yes” to the following question: “[I]f that train was four hundred feet back from the intersection and you had applied that train in emergency situation, then there would have been an appreciable slackening of speed before you reached the intersection, wouldn’t there ?” Robb, Horst-meyer and a track laborer at the Buell station all testified that the horn of the Diesel engine was started more than a quarter of a mile west of the station and continued blowing standard crossing whistles (two longs, a short, and a long) across a county road about 800 feet west of the Highway and until reaching the Highway. There was a building used as a fertilizer plant just east of the county road. The fertilizer plant on the north side of the tracks was about the same distance west of the depot as the depot was west of the' Highway. Horstmeyer first saw plaintiff’s car before the engine reached the fertilizer plant. He could not see plaintiff’s car while the engine was passing the fertilizer plant but when he saw it again, it was about 400 feet from the track when the engine was near the depot and estimated its speed at 50 miles per hour and the speed of the train at 40 miles per hour. He said he continued to watch plaintiff’s car and that it did not appear to slow down or decrease its speed until it was between 60 to 75 feet of the crossing.

He further testified as follows:

“Q Now, Mr. Horstmeyer, when you saw Mr. Campbell’s car the second time, if his car continued at the same rate of speed that it was going and the train continued at the same rate of speed that it was going, were the two going to collide at the intersection of the track at the highway?
“A If it continued at that speed, yes, sir, but there was still time for the driver of the automobile to stop to avoid a collision whereby at two hundred feet had I shouted a warning to the engineer to big hold the train, it takes approximately four seconds for the brakes to apply in emergency on the entire train, therefore, we would have traveled two hundred feet. * * *
“Q So, in effect, when you saw this automobile the second time nothing was done on that train as far as trying to apply the brakes or anything? A No, sir.
“Q You just kept going?
“A I didn’t consider it an emergency.
“Q I see. Now, when you first saw the automobile just before you even get to the fertilizer plant if the automobile had continued at its rate of speed and if the train had continued at its rate of speed would the two have collided then at the intersection ?
“A Had he not applied his brakes ? * *

The case was submitted on Instruction 1 requiring findings that “plaintiff became and was in a position of imminent peril of being struck and injured by said train, and that the defendants saw or, in the exercise of ordinary care, could have seen plaintiff in the aforesaid position of imminent peril, if you so find, in time thereafter for the defendants, by the exercise of ordinary care, with the means and appliances then and there at hand, and with reasonable safety to said" train, its occupants, and all persons thereon to have slackened the speed of said train, or to have given a timely and adequate warning of the approach and proximity of said train, and that by so doing, defendants could thus and thereby have avoided colliding with plaintiffs automobile.”

Plaintiff alleges error in giving Instruction 2, the first paragraph of which was as follows: “The Court instructs the jury that the engineer or fireman in charge of a motor running a train upon seeing an automobile approaching a crossing while such automobile is still in a place of safety and at such distance from the crossing as to yet allow the driver a reasonable time to stop before going upon the crossing in front of such train, is entitled to assume that the driver of such automobile will stop before going upon a crossing and into danger of being struck by such train; and the court further instructs you that neither the engineer nor fireman on the train is under any duty to blow the whistle or attempt to slacken the speed of the train until he sees, or in the exercise of ordinary care should see, that such automobile is not going to stop and is in a position of danger.” No criticism is made of the second paragraph which was a converse of plaintiff’s humanitarian submission. Plaintiff’s objection to this instruction is that it unduly limited the zone of imminent peril to be considered by the jury, which was widened beyond the distance in which plaintiff could stop before reaching the crossing by plaintiff’s obliviousness. He says obliviousness was shown by both his and defendants’ evidence. It seems evident there was actual obliviousness until too late for plaintiff to stop and we find there was substantial evidence from which the jury could find there were reasonable appearances of obliviousness. As hereinafter stated, we consider, under the evidence in this case, it was error to tell the jury the trainmen were entitled to assume plaintiff was not oblivious to the approach of the train, which is what this instruction really meant.

Defendant points out this instruction is the same as the one given (No. 4) in Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 746, and much like the one in Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13, 16(D) except for its reference to “due care”. The above quoted part is also like Instruction A offered in Clark v. Atchison, T. & S. F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954, (concerning a pedestrian) in which we reversed a judgment for plaintiff because the court refused defendant’s request to give it. However, in the Janssens case, we said (228 S.W.2d 1. c. 746) we had stated in the Poague case: “[T]hat what this instruction really meant, and that what the trainmen were entitled to assume, was that the approaching driver was not oblivious to the approach of the train unless he showed some reasonable appearance of obliviousness; and that it would make the issues clearer to state it that way. Here defendant’s evidence was that Janssens’ actions (continuing to slow down until he got within about 20 feet of the track) indicated that he was not oblivious. Therefore, there was evidence on which to base such an instruction.” Likewise in the Clark case, there was evidence on which to base such an instruction. As pointed out therein (6 S.W.2d 1. c. 961): “In this case the fireman testified that when he first saw Clark that the latter was standing near the track, not in the zone of danger, looking directly at the approaching engine and train. If that was true, the fireman, until he saw some indication to the contrary, had the right to assume that Clark would remain in a place of safety until the train had passed.” In the Poague case, the instruction was broader and more favorable to the plaintiff therein because “it informed the jury that the fireman’s duty begins when ‘he sees, or in the exercise of ordinary care should see, that such automobile was not going to stop and was going to enter into a position of danger,’ ” (140 S.W.2d 1. c. 17) and another instruction (140 S.W.2d 1. c. 19) further expanded “improperly the defendant’s duty” so as to give the plaintiff “a more favorable submission than he was entitled to have.” Nevertheless, we had stated that in Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562, 571, concerning a similar instruction: “[W]e think that it would be better for such an instruction to state only when the defendant’s duty commenced, instead of prefacing such a statement with what the defendant ‘had a right to assume.’ While we do not consider this prejudicial per se, if the trial court had granted a new trial on the ground that it was an overemphasis of the matter, we would be inclined (as in case of a new trial granted because of overemphasis of the burden of proof) to defer to its judgment.”

Thus this part of the instruction has been criticised several times but not held prejudi-cially erroneous because of special circumstances in those cases. However, the main trouble with this instruction in this case is the lack of evidence on which to base it such as was present in the Janssens case and the Clark case. The evidence in those cases prevented it from being prejudicially erroneous because reasonable appearances indicated no obliviousness. In Triller v. Hellwege, Mo.Sup., 374 S.W.2d 104, 108, we found reversible error in giving an instruction which restricted the zone of peril to the time a small girl left the shoulder of the highway toward which she ran from a store. We said: “In thus narrowing and limiting the zone of peril the available distance within which defendant would have to stop to avoid a collision was so greatly shortened that it would have been a manifest impossibility for him to have stopped, and therefore the giving of Instruction No. 4 was tantamount to the direction of a verdict for defendant.” Likewise, here, limiting defendants’ duty to “such distance from the crossing as yet to allow the driver a reasonable time to stop” restricts the jury to a narrower zone of peril than the jury was authorized to consider on a showing of obliviousness and reasonable appearances thereof.

This is a true last clear chance case, under the evidence most favorable to plaintiff. See Wabash Railroad Co. v. Dannen Mills, 365 Mo. 827, 288 S.W.2d 926, 928. See also Restatement of Torts, Second, Sec. 480. Comment b under this section is entitled “When defendant can assume plaintiff will avoid danger.” It is there stated: “It is not enough that the defendant sees the plaintiff in a position which would be dangerous were the plaintiff not aware of what is going on. It is also necessary that the defendant realize or should realize that the plaintiff is inattentive and, therefore, is in peril. The defendant is entitled to assume that the plaintiff is paying or will pay reasonable attention to his surroundings; until he has reason to suspect the contrary, he has no reason to believe that the plaintiff is in any danger. Therefore, the defendant is liable only if he realizes or should realize that the plaintiff is inattentive and consequently in peril. * * * However, it is not necessary that the circumstances be such as to convince the defendant that the plaintiff is inattentive and, therefore, in danger. It is enough that the circumstances are such as to indicate a reasonable chance that this is the case. Even such a chance that the plaintiff will not discover his peril is enough to require the defendant to make a reasonable effort to avoid injuring him. Therefore, if there is anything in the demeanor or conduct of the plaintiff which to a reasonable man in the defendant’s position would indicate that the plaintiff is inattentive and, therefore, will or may not discover the approach of the train, the engineer must take such steps as a reasonable man would think necessary under the circumstances.”

Instruction 2 authorized an absolute assumption as long as plaintiff’s car had reasonable time and distance to stop short of the crossing without regard to appearances of obliviousness, when there was evidence from both plaintiff and defendants from which the jury could find obliviousness and reasonable appearances of obliviousness beyond such distance. This was defendants’ theory as shown, by the following statement of defendants’ counsel at the trial: “[T]he law of this state is that a train operator has a right to presume that a vehicle approaching a crossing will come to a stop; and he is not required to act until such time as the vehicle is in a position of peril of being struck; and at a distance of four hundred feet according to the plaintiff’s testimony in this case there is no peril and the operator of this train is not required to take any action at that time. The plaintiff’s testimony in this case shows that he could have stopped his automobile at any time at the speed he was traveling, at one hundred seventy-five feet. [Tjherefore, the peril in this case doesn’t arise until this vehicle is within one hundred seventy-five feet of the tracks, and it is not until that position of peril arises that this operator is required to take any emergency action to prevent his engine having a collision.” In this case, there was no evidence definitely indicating lack of obliviousness as in the Janssens and Clark cases in which we held it was proper to give this part of the instruction because of such evidence. In the Dannen Mills case (288 S.W.2d 1. c. 930) we quoted with approval from a previous case, as follows: “ ‘ “If he [the driver] is apparently dominated by a fixed intent to pursue his course into the [train’s] very path, he is no less in peril at any given time and place after such fixed intent becomes apparent than would be the case if he was aware of his predicament, but was physically unable to extricate himself.” ’ ” Considering Horst-meyer’s testimony as to his observation of the approach of plaintiff’s car and the appearances of the situation as shown by his testimony, and Robb’s testimony that an application of the brakes at 400 feet from the crossing, there would have been an appreciable slackening of speed before reaching the crossing, (plaintiff said he could have escaped (by turning on the service road) if he could have had another 15 feet) we must hold it was error to give Instruction 2. Horstmeyer said he did nothing at that point because he “didn’t consider it an emergency.” Our view is that the jury reasonably could have found otherwise but that this instruction gave them a direction to the contrary.

Since this case may be retried, we consider plaintiff’s claim of error in permitting counsel for defendants to read portions of the deposition of Robb, after plaintiff’s counsel had read from the depositions of Horstmeyer and Robb as admissions against interest. Plaintiff says the parts read on his part “concerned the application of brakes, the slackening of the speed, the facts showing plaintiff’s obliviousness and whether the same were apparent to defendants, and the distances and speeds of the automobile and train”; but that “all that defendant Robb’s counsel read had to do with the sounding of the whistle.” Plaintiff says he “had read nothing concerning the sounding of the whistle from the depositions of Horstmeyer and Robb.” Our view is that sounding the whistle had an important bearing on the issue of plaintiff’s obliviousness and the reasonable appearances of obliviousness and tended to explain the testimony concerning Horst-meyer’s conduct, which plaintiff had read. Therefore it was properly admitted under the rule stated in Binion v. Armentrout, Mo.Sup., 333 S.W.2d 87, 92. Other matters raised in plaintiff’s brief may be considered by the parties if the case is retried and are not likely to occur in the same way on retrial.

The judgment is reversed and the cause remanded.

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Eugene HERMAN et al., Exceptions of William E. Thomson, et al., Respondents.
    No. 51514.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 12, 1966.

      Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Tom J. Helms, Kansas City, for appellant.
    Harry P. Thomson, Jr., John R. Caslav-ka, Kansas City, for respondents, Shughart, Thomson & Kilroy, Kansas City, of counsel.
   HOUSER, Commissioner.

To facilitate the construction of Interstate Highway 1-70 State Highway Commission in 1959 filed a petition to condemn a tract of 2.18 acres in Jackson County, part of a larger tract of approximately 22 acres. On February 29, 1960 commissioners appointed by the circuit judge filed their report awarding landowners damages of $1,750. The case was tried to a jury on exceptions filed by the commission and the landowners. The jury awarded damages of $35,000. The commission has appealed. Landowners’ estimates of damages ranged from $61,500 to $240,000. The commission’s witnesses testified to damages of from $1,090 to $2,200. We have jurisdiction of this appeal since the amount in dispute exceeds $15,000. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo.Sup., 350 S.W.2d 771; Constitution, Art. V, § 3, V.A.M.S.; § 477.040, V.A.M.S.

The commission’s first point is error in sustaining landowners’ motion at the close of the evidence to direct the jury as a matter of law that as a result of the taking landowners were left without access to the remaining 20 acres. Landowners claim that the value of the remaining 20 acres has been diminished to virtually nothing because it is landlocked as a result of the construction of Interstate 1-70. The commission claims that the remaining acreage is not landlocked and that landowners are entitled to be compensated only for the value of the 2.18 acres taken.

The 22-acre tract lies south of Highway 40, north of Leeds Road and west of Manchester Trafficway. For many years prior to the taking access to the 22-acre tract was had from the north via Eastern Avenue, a public road running generally north and south. Eastern Avenue was established by order of the county court in 1873. Its right of way was obtained by condemnation and paid for by public funds. Eastern Avenue was originally traversible for its entire length from Highway 40 on the north to Leeds Road on the south. Access to the 22-acre tract was cut off from the north by the construction of Interstate 1-70. In 1915 a bridge on Eastern Avenue south of the 22-acre tract and north of Leeds Road broke down and was never rebuilt. Over the commission’s objections landowners introduced the testimony of ten witnesses showing that because of the breakdown of the bridge Eastern Avenue from the 22-acre tract south to Leeds Road has not been passable and has not been used since 1915.

Proceeding south along the west property line of the 22-acre tract Eastern Avenue changes its generally north-south course at a point within the 22-acre tract, from which it runs southeast to Leeds Road. Prior to 1957 the west part of the 22-acre tract lay within the city limits of Kansas City, and the east part lay in Jackson County. In 1957 the city limits were extended to include the entire tract. The 22 acres are underlain with a total of 2,260,997 tons of limestone of commercially saleable quality. That portion of Eastern Avenue south of the 22-acre tract was located outside the city limits of Kansas City until 1957.

The commission contends that the ruling of no access as a matter of law was mistakenly based upon inadmissible testimony— the testimony of nonuser. This testimony was admitted on the basis of the last clause in § 228.190, V.A.M.S.

On this appeal it is not the position of the commission that in declaring the property landlocked as a matter of law the court erred by depriving the jury of the opportunity of passing upon the credibility of the 10 witnesses who testified to nonuser. Tacitly and impliedly conceding the fact of nonuser, the commission’s complaint is that the court erred in admitting evidence of nonuser as a basis for landowners’ theory of damages. The commission conceded in the pretrial hearing that access from the north was cut off by the construction of Interstate 1-70. At the trial and on this appeal the commission did not contest the fact of nonuser after 1915 of the portion of Eastern Avenue to the south. In appellant’s brief it is conceded that landowners “affirmatively showed” that after the bridge broke down in 1915 the use of the portion of Eastern Avenue south of the 22-acre tract was intermittent at best “and amounted to virtually no use at all.”

The commission contends that the nonuser provision of § 228.190 applies only to county roads established by prescription or user, and is inapplicable to roads such as Eastern Avenue and may not be used to justify the admission of evidence of abandonment, because Eastern Avenue was acquired by condemnation and paid for by the expenditure of public funds. The commission argues that abandonment of Eastern Avenue could properly be shown only by an order of vacation adopted in compliance with §§ 228.110-228.130, V.A.M.S., or by an ordinance of vacation adopted by the city, and that no such order or ordinance was made or adopted. The commission reasons that the public roads provisions of Chapter 228, V.A.M.S., envision a complete, symmetrical procedure for both establishment and vacation of county roads; that they provide for the filing of a petition or application, the giving of notice, the holding of a hearing, and the making of an order of establishment, § 228.080, or vacation, § 228.110; that the closing of a county road must be effected by a formal order of vacation having equal dignity with a formal order of establishment, and that since the right of way for Eastern Avenue was condemned and paid for by public funds, and not procured by gift or by payment of the amount of the damages by the petitioners, abandonment may not be effected under § 228.190.

We are of the opinion that a thoroughfare such as Eastern Avenue, legally established originally as a county road, used and existing as a public road for many years thereafter, which falls into disuse and is not used by the public for ten years continuously from 1915, may be declared abandoned and vacated under the nonuser clause of § 228.190. The nonuser clause in positive terms is made applicable to any public road, “however acquired.” Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591 [2]. It does not exclude or except public roads paid for by public funds and acquired by condemnation and we find no basis for a construction so limiting it. Nonaccess from the south by reason of that part of Eastern Avenue having ceased to exist could be established in this case by either of two methods: formal vacation by an order of the county court under § 228.110, or abandonment under § 228.190, i. e., nonuser by the public for the statutory period continuously. Landowners were not required to produce a formal county court order of vacation in the abandonment of the public road. Corbin v. Galloway, Mo.App., 382 S.W.2d 827 [4]; State of Missouri ex rel. Carter County v. Lewis, Mo.App., 294 S.W.2d 954; Odom v. Hook, Mo.App., 177 S.W.2d 165; McEneny v. Gerlach, Mo.App., 142 S.W.2d 1095; Rosendahl v. Buecker, Mo.App., 27 S.W.2d 471 [4] ; Proctor v. Proctor, 222 Mo.App. 21, 4 S.W.2d 882; Oetting v. Pollock, 189 Mo.App. 263, 175 S.W. 222. As stated in Elliott on Roads and Streets, 3rd ed., Vol. 2, § 1172: “a highway may cease to exist either by abandonment or by vacation according to law.” The testimony of the several witnesses showing nonuser of the portion of Eastern Avenue in question was admissible in evidence. That testimony amply justifies the finding of abandonment of that portion of Eastern Avenue between the 22-acre tract and Leeds Road and effectively establishes that landowners’ access to their land from the south has been cut off for many years.

It is true, as suggested by the commission, that the nonuser provision of § 228.190 was not intended to apply to title of lands voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed and that lands so dedicated in perpetual trust and platted for such purposes can only be abandoned by an act as deliberate as that by which they were acquired, that is, by proceeding under § 228.110, Robinson v. Korns, 250 Mo. 663, 157 S.W. 790; Bobb v. City of St. Louis, 276 Mo. 59, 205 S.W. 713; Winschel v. County of St. Louis, Mo.Sup., 352 S.W.2d 652, and to this extent the ruling in Johnson v. Rasmus, supra, has been limited. Nothing in the last three cited cases militates, however, against our present ruling, which is made upon fundamentally different facts.

The commission, in an attempt to contradict landowners’ claim that the remaining 20 acres is landlocked, offered to prove that Sloan-Wilbert Vault Company, a corporation owning land immediately abutting on the south side of the 22-acre tract, was willing to sell and would then and there at the trial offer to sell to landowners sufficient ground to enable them to build a road connecting their land to that portion of Eastern Avenue which was still legally and physically open, for $2,000, by which landowners could obtain access to the remaining 20 acres. The offer was refused. The commission contends that in so ruling the court erred; that a condemnee has a duty to mitigate damages by taking any reasonable action to cure lack or loss of access caused by condemnation; that landowners could purchase this right of way and were under a legal duty to do so and build a road thereon. Pointing to evidence introduced by landowners showing that the construction of a road would cost $25,000, the commission argues that it would be better for landowners to spend $2,000 for right of way and $25,000 to construct a road, thereby restoring the value of the 20 acres remaining, than to “sit around and complain of their plight.” This argument is based upon landowners’ testimony that the remaining acreage had been depreciated to the extent of from $61,000 to $240,000. The commission wishes to invoke the rule that “ * * * when the reasonable cost of repairing the injury by restoring the premises to their former condition as near as may be is less than the diminution in the market value of the property by reason of the injury, süch cost of restoration is the proper measure of damages. * * referred to in Smith v. City of Kansas City, 128 Mo. 23, 30 S.W. 314 and Reutner v. Vouga, Mo.App., 367 S.W.2d 34.

The commission is in no position to invoke this rule, which by its terms is applicable only to situations in which the cost of restoration is less than the diminution in market value. The commission admits that “it is obvious that the cost of curing or restoring the value of defendants’ remaining land is $27,000” but insists that the diminution in market value is limited to $2,200 at the most. On the other hand, if we accept landowners’ testimony that the cost of restoration is less than the diminution in market value, then it becomes obvious from the following computation that in awarding $35,000 damages the jury for all practical purposes adopted the measure of damages now advocated by the commission. There was testimony that the cost of restoration would include $22,000 for a bridge, fill and guard rails, $3,000 for engineering, $5,625 for building and surfacing a 450-foot road, and $2,000 for right of way, or a total of $32,625 as the cost of restoration. A commission witness testified that the 22-acre tract was worth $1,000 an acre, so the jury could find that the value of the 2.18 acres taken was $2,180. The total, $34,805, comes within a small percentage of coinciding exactly with the amount of the jury verdict of $35,000.

If nevertheless it be considered that the rule is available to the commission, the latter has not made a sufficient offer of proof to convict the trial court of error in its refusal. The commission offered to prove by Courtney Y. Sloan, a stockholder in Sloan-Wilbert Vault Company, a closely held family corporation, that during the trial, the stockholders conferred among themselves and with their attorney and authorized Mr. Sloan to sell to landowners “a right-of-way off of the Thomson land, across all of the land or some of the land of [the corporation] up to where Eastern Road is now passable,” for $2,000, and that the corporation would have sold such right of way to landowners in 1960 when the taking occurred. This offer was not communicated to landowners in 1960 or at any time prior to the fifth day of trial. There was no tender of a deed conveying a right of way. There were no minutes of the board of directors of the corporation authorizing such a sale. The offer was not made in the usual course of business but in the course of litigation, under the stimulus and stress of trial. Landowners were given no opportunity to investigate the bona fides of the offer, the authority of the agent, the financial responsibility of the corporation, the legal title of the corporation to the land over which the route was proposed or the physical conditions which would be encountered in building roads and bridges along the proposed route. Such offers are easily made and easily withdrawn or revoked. To admit an offer of this kind of evidence would open the doors to offers made in bad faith. We adhere to the rule excluding such offers, State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57 [3,4]; School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, 863, and find no error in the action of the court in this respect.

The commission’s last point is error in permitting landowners to introduce testimony as to the value of their land based upon its use as a rock quarry or mine. The commission points out that at the time of the taking 20 of the 22 acres were zoned R-l, residential, which does not permit the operation of a rock quarry or mine, and argues that there was a failure to prove the reasonable probability that the 20 acres zoned R-l would be rezoned M-2, industrial, to permit quarrying or mining or that the necessary permits for the use of explosives could be obtained, and because landowners failed to prove that there was a demand for the rock deposits located on their land, or a reasonable expectation of such a demand in the near future.

Under the ordinances of Kansas City in effect on the date of the taking quarrying and rock crushing were allowed in M-2 districts and underground mines or quarries were permitted in R-l districts. Stephen Kelly, an employee of the city plan commission, testified that under the master plan for rezoning all annexed areas the property in question was designated heavy industry ; that on the date of the taking there was a reasonable probability that this property would have been rezoned, if an application had been filed with the city to rezone the east part of the property from R-l to M-2. On direct examination he testified that if it had been rezoned M-2, open-pit quarrying and mining would be allowed thereon. On cross-examination he testified that while it is not rare for the city plan commission to permit quarrying, notwithstanding commercial buildings and properties are located in the immediate area affected by blasting, the commission is cautious, and it is highly probable that the commission would restrict this M-2 use and not permit open-pit quarrying and blasting where, as here, there were trailers and greenhouses in the vicinity. He made it clear, however, that under existing zoning, and without rezoning, underground blasting operations could be performed on the property; that a “cave mine requiring heavy blasting” would not be restricted.

This was sufficient evidence for the jury to consider the value of the land based upon its use as a rock quarry and to find that there was a reasonable probability that the 20 acres remaining would have been rezoned M-2, and that landowners had the legal right without zoning changes to engage in a quarry operation on the west 180 feet of their land, dig underground to the east and quarry and mine rock out from under the remaining acreage notwithstanding the latter was zoned R-l for surface uses.

With respect to the prospect of securing permits to blast or mine, there was evidence from which the jury could find that blasting permits are issued generally and as a matter of course if the applicants are established and experienced mine operators, with the knowledge of how to handle explosives, and an acceptable bond is posted.

On the question of demand for rock, Frank Carswell, an experienced quarry operator, testified that there has been a shortage of crushed rock in Jackson County at times; that in 1960 and any other year there are many times when the present quarries in the area cannot furnish the quantity of material the market requires and that often he has been called upon to ship by railroad rock which could not be furnished by his competitors; that quarry operators have to call on each other to supplement their ability to deliver.

The commission bases its contention of failure of proof of demand for rock upon the testimony of one of the co-owners of the quarry who acknowledged that in another lawsuit he testified that at the time the quarry was purchased it was not economically feasible to open a quarry at that location because the market was “at a very low ebb, and is still at a low ebb due to the fact that there are too many quarries in operation at the present time in that particular .vicinity” and that it would not be economical to open up this tract until his competitors had exhausted their supply of rock. This testimony does not compel a reversal of the judgment. This party explained that the site was deliberately held in reserve as a quarry because of then-existing market conditions, awaiting the time when there would be a price advantage in that particular area over other competitors due to location; that whereas the area where the property is located has not been well developed up to the present time it is now being developed at a very rapid pace; that within the next fifteen years that area will be developed faster than any other area in the Kansas City territory; that “within the next five years that whole country out there will be very greatly developed beyond the point of all our dreams.” There was no failure of proof of a reasonable expectation of a demand for the underlying rock in the immediate future.

No error appearing the judgment is affirmed.

HIGGINS, C., concurs.

WELBORN, C., not sitting

PER CURIAM:

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

All of the Judges concur.

      . “All roads in this state that have been established by any order of the county court, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuser 6y the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same." (Our italics.) In 1953 the nonuser period was changed from ten to five years. Laws 1953, p. 674.


text:
    Dorothy MOORE, Respondent, v. Emil C. EDEN, Appellant.
    No. 51632.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.

      Pickett, Andereck & Hauck, by Marvin L. Sharp, Eugene E. Andereck, Trenton, for plaintiff-respondent.
    Strop, Watkins, Roberts & Hale, by O. W. Watkins, Jr., St. Joseph, for defendant-appellant.
   JAMES W. BROADDUS, Special Commissioner.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $18,000. Defendant has appealed.

Inasmuch as the only questions presented on this appeal are whether or not the Court should have directed a verdict for defendant at the close of the evidence, and whether Instruction No. 2 given on behalf of plaintiff, was supported by the evidence, we will set forth only the testimony bearing on these issues.

The action arose out of an automobile collision occurring on May 26, 1963. Plaintiff was riding in a Ford Station Wagon which her husband was driving. Plaintiff and her family were going to St. Joseph for a picnic intending to go on from there to pick up their daughter at Atchison, Kansas. The plaintiff’s vehicle was traveling in a westerly direction on Highway 36, which is also known as Frederick Avenue. The accident occurred in the westbound lane at the entrance to Memorial Park Cemetery. Defendant was eastbound on the highway on his way to the cemetery. He had been driving in the south lane as he approached the cemetery and, as he told the police officer after the accident, he was going out Frederick and saw the plaintiff’s car back at the top of the hill past the cemetery and thought he had plenty of time to make his turn. He turned into the cemetery and was hit. The actual point of collision was 70 feet inside the city limits of St. Joseph and was three or four feet south of the north line of the pavement in the westbound traffic lane.

Otto Clayton, a police officer in St. Joseph, investigated the accident. He testified that the highway where the accident occurred is a three-lane highway. To the east of the entrance of Memorial Park Cemetery, there is a slight downgrade of two or three percent. The highway is straight and concrete. The highway is 29½ feet wide. Officer Clayton arrived at the scene after the accident happened. The debris on the highway was four feet south of the entrance to Memorial Park pretty close to the west edge of the entrance to Memorial Park nad was 70 feet west of the city limits. He saw two skid marks 78' 7" long, one of which was on the north shoulder of the drive of the Memorial Park entrance, and the other one was on the highway. These skid marks were in the westbound lane going west. The highway was dry. At this location there are lane lines marking the three lanes. There is a yellow line in the lane farthest south. The yellow line starts west of the entrance to the cemetery and runs east past the cemetery driveway. The cemetery driveway entrance is 39 feet wide. The Moore vehicle was 57 feet west of the debris which he previously described and the skid marks ran up to the Moore (plaintiff) vehicle and were fresh. Most of the damage to the car in which plaintiff was riding was on the left side. Most of the damage to defendant’s car was on the right side. On cross-examination the officer testified that the collision occurred 70 feet inside the city limits of St. Joseph and that the black skid marks made by the Moore car started even ahead of the city limits sign. Defendant’s automobile was located 15 feet back from the point of debris.

Plaintiff’s daughter, Glenda Kay, age 20, a passenger in her vehicle, testified “we were going west, coming towards St. Joseph and coming toward the Memorial Park Cemetery, and as we came up by the filling station, we saw the Eden (defendant) car in the middle lane when we realized he was going to make his turn then * * * when we realized he was going to turn, I remember my dad putting on the brakes and swerving to the right going up on the shoulder to avoid the accident.”

Plaintiff’s husband testified that he and his wife, together with the other passengers in the car, were going down for a picnic and to pick up their daughter at Atchison, Kansas. He was driving. At this point, the neighborhood is semi-residential. The highway is three lanes wide. Just before the entrance to the cemetery there is a slight rise. At the top of the hill he noticed an automobile ahead headed in his direction to which he paid very little attention until it moved over into the center lane, at which time he became alarmed and started slowing down. The Moore (plaintiff) vehicle was then in the north lane going west, and the defendant’s vehicle was in the center lane going east. The highway was dry and it was about 11:15 to 11:30 a. m. There was no other traffic on the highway and there were no visual obstructions. When he saw defendant starting to make a left turn, which would be to the north, he swerved to the north shoulder and put on his brakes. The left front fender and left portion of his hood struck the right fender and the right portion of the hood of defendant’s vehicle. The point of impact was three to four feet from the north edge of the pavement, and in the entrance to the cemetery. The automobile he was driving was owned jointly by himself and his wife. The automobile was in excellent shape, had brand new tires on it, and the brakes were in excellent condition. He admitted in his deposition that when he was somewhere opposite the east drive of the filling station he knew that defendant was turning across the northernmost lane of the highway into the cemetery and that he would have to stop to avoid the accident. At the trial he testified that when his brakes took hold he thought he was opposite the west drive.

On cross-examination he was asked: “And how fast were you traveling, Mr. Moore, as you came into this area? A. I would say some — some place in the neighborhood of fifty-five. Q. Were you traveling more than fifty-five? A. I don’t think so, no. Q. Were you traveling less than fifty-five? A. I really don’t know. I was in that range.” After the collision he released his brakes and rolled up on the shoulder and traveled 57 feet farther before he stopped. When he first saw the defendant’s automobile it was in the extreme right lane and he saw it move into the middle lane where it “actually shouldn’t be * * * so I was more or less alarmed at it.” He did not notice a left-turn signal on the Eden automobile. The Eden automobile was traveling between 20 and 30 miles per hour. The Eden car was turning into the cemetery a car’s length or two before it got to the cemetery drive. Mr. Moore said he “had the impulse to let up on the accelerator” before he got to the western drive of the filling station. “I was sort of letting up on it because I was easing into the city limits there.”

Plaintiff testified that she was riding in the front seat on the car with her husband from their home in Trenton to St. Joseph. As they approached the east city limits of St. Joseph their car was in the north lane. She never realized that anyone was going to pull out in front of them across the highway and she wasn’t paying much attention as to what kind of turn or what the Eden car was going to do. She didn’t see the Eden car in any lane other than the middle one. She saw him start to turn into the cemetery which would be to the north or to Eden’s left.

The defendant called as a witness Roderick E. Riddle, Jr., a civil engineer. He testified that he had prepared a plat which was stipulated by counsel to be an accurate plat of the area. The filling station driveways are shown on the plat and it is 155 feet from the eastern edge of the west drive of the service station to the west edge of the cemetery entrance driveway. The west edge of the east filling station driveway is 215 feet, or 60 feet farther from the cemetery entrance. The east driveway in the filling station is 175 feet and it is a total of 400 feet from the eastern edge of the filling station entrance to the east edge of the cemetery entrance. Starting at a point 200 feet east of the cemetery entrance the highway is downgrade at 1.3%, that is, it drops 1.3 feet to the 100-feet horizon tally. The shoulders at the scene of the accident were approximately 15 feet in width.

Defendant himself testified that on the date of the accident, about 11:30 a. m., he was going to Memorial Park Cemetery in his station wagon. He approached the cemetery driving in the south lane of the three-lane highway at about 30 miles per hour. As he approached the cemetery entrance he turned on his left-turn signal. When he reached the entrance, he slowed down to 12 or 15 miles per hour. The only car approaching was clear up on top of the hill so that he had plenty of time to make the turn. He had gotten into the center lane and just made a normal turn into the cemetery. When he got into the north lane, the right front end of his car was hit and his car was knocked backwards across the highway. He estimated the speed of the Moore vehicle at 70 or 75 miles per hour. His station wagon was in excellent condition and the windshield was clean. As he pulled into the middle lane to turn into the cemetery he crossed the yellow line, which was in the south lane. He was 40 or 50 feet from the cemetery entrance when he pulled over the yellow line into the middle lane. After he got in the middle lane and was going about 15 miles per hour, he started to make a left turn to the north. At this time the Moore vehicle was clear up on top of the hill coming west in the north lane. He was making his turn and thought he had plenty of time. He didn’t continue watching the Moore car because he thought he had time and his intention was to go up the drive into the cemetery. He could have seen the Moore car, had he looked again. At the time of the impact the Moore car was partially on the north shoulder. He only had a glance at the Moore vehicle up at the top of the hill and before he made his turn.

Defendant offered in evidence an Ordinance of the City of St. Joseph which provides that the speed limit on Frederick Avenue from the east line of Noyes Boulevard to the east city limits is 35 miles per hour.

Defendant contends that the trial court erred in failing to sustain his motion for a directed verdict for the reason that plaintiff’s husband was guilty of negligence as a matter of law in violating the Ordinance; that his negligence in exceeding the speed limit was a direct and proximate cause of the accident. Preliminary to this contention defendant’s brief states: “Plaintiff was riding in a car owned jointly by herself and her husband while they were engaged in a joint enterprise”; that under these facts if plaintiff’s husband was negligent his negligence was imputed to her. This, plaintiff’s brief does not dispute.

In passing upon the contention we must adhere to the settled rule that the evidence must be considered in the light most favorable to the plaintiff and the defendant’s evidence must be disregarded except insofar as it may tend to aid plaintiff’s case.

“[T]he granting of a motion for directed verdict is a drastic action by a trial court, and that it should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ.” (Italics added.) Justice v. East St. Louis City Lines, Inc., Mo.Sup., 375 S.W.2d 150, 155.

Defendant argues in his brief a mathematical formula which would require us to judicially notice that plaintiff’s automobile would have stopped “two feet” prior to the collision if it had been traveling 35 miles per hour after entering the city limits. Inherent in that argument is the requirement that we judicially notice that plaintiff’s tires were “sliding on dry concrete”; and that defendant was traveling 12 miles per hour or 17.6 feet per second at right angles with plaintiff’s line of traffic.

Also in his argument defendant asserts that plaintiff’s husband admitted that he was traveling “about 55 miles per hour” as he entered the city limits. This plaintiff says is an “unwarranted assumption.” As we have stated, plaintiff’s husband was asked this question: “And how fast were you traveling, Mr. Moore, as you came into this area? A. I would say some place in the neighborhood of fifty-five.” Defendant put into evidence a plat of “this area” prepared by Mr. Riddle, the civil engineer. The area as shown on the plat extends to the eastern edge of the filling station’s east driveway, a distance of 330 feet from the city limits. We do not think that it should be said that Mr. Moore’s answer to the inquiry concerning the speed at which he was traveling when he “came into this area” must be taken as an admission that he was going that fast as he entered the city limits. Especially is this true when we consider other portions of his testimony. He stated that at a point near the filling station he was letting up on his accelerator and “easing” into the city limits. He also said that as he “topped the hill” east of the city limits he noticed defendant’s car “move over into the center lane, at which time I was obviously alarmed and I started slowing up”; and that his brakes began to take hold somewhere “in the breadth” of the west driveway of the filling station.

The tires on plaintiff’s vehicle were “not sliding on dry concrete” as defendant assumes in his argument. All of the evidence is to the contrary. Witness Glenda Kay Moore testified: “When we realized he was going to turn, I remember my dad putting on the brakes and swerving into the right going up on the shoulder to avoid the accident.” Mr. Clayton, the police officer, testified: “Q. How many skid marks were there? A. There was two. Q. Where were they? A. One was up on the shoulder and the drive of Memorial Park entrance, and the other was on the highway.” Plaintiff’s husband testified that he left the highway and went onto the north shoulder five feet west of the city limits sign. The shoulder was dirt and sod.

Nor can we take judicial notice that defendant was traveling at 12 miles per hour or 17.6 feet per second at right angles with plaintiff’s line of traffic into the cemetery as defendant assumes. The plaintiff’s evidence was that defendant was “going slow, and almost stopped”, “looked like he was looking over at the cemetery.” Plaintiff’s husband testified that defendant was headed “slightly northeast” at the time of the impact. Defendant testified that he was 35 or 40 feet from the cemetery drive when he started to make his left turn from the center lane into the north lane. On another occasion defendant testified that he was a car length or more from the entrance to the cemetery when he started out of the middle lane into the north lane. The jury could fairly infer from the testimony that from a car length to 40 feet west of the cemetery drive the defendant was “going slow” or “almost stopped” in the north lane of traffic, with his vehicle headed “slightly northeast,” “looking over at the cemetery.” In view of this evidence we cannot judicially notice that defendant was traveling at 12 miles per hour or 17.6 feet per second, as defendant’s mathematical argument seeks to compel us to do.

This court has said many times that, except within certain limits, it cannot take judicial notice of the exact distance within which a certain automobile may be stopped under given conditions. Mallow v. Tucker, Mo.Sup., 281 S.W.2d 848, 851; Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 490. In order to uphold defendant’s contention we would have to say that it is common knowledge that a heavy automobile traveling 78 feet downgrade, sliding with two wheels on the concrete and two wheels on the dirt and sod, gave such conclusive evidence of the speed at which it was traveling, to show it to be a speed in excess of 35 miles per hour, so as to take that fact issue from the jury. This we are not prepared to do.

It would unduly lengthen this opinion to discuss in detail the cases cited by defendant. None dealt with facts similar to those appearing in the instant case. In determining the question of whether a plaintiff has been contributorily negligent as a matter of law each case must be considered in the light of its own peculiar facts and circumstances. Creech v. Riss & Company, Mo.Sup., 285 S.W.2d 554, 559.

Under the evidence and the reasonable inferences to be drawn therefrom the question of whether plaintiff’s husband was guilty of contributory negligence is one about which reasonable minds may well differ. Thus the trial court committed no error in submitting the question to the jury.

Defendant’s remaining contention is that the court erred in giving plaintiff’s Instruction No. 2. This instruction reads as follows:

“Your verdict must be for the plaintiff if you believe: First, defendant either: Failed to keep a careful lookout, or failed to yield the right-of-way, or drove on the wrong side of the road, and Second, defendant’s conduct in any one or more of the respects submitted in paragraph First, was negligent, and Third, as a direct result of such negligence, plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 6.”

Defendant does not question the form of the instruction. It was copied from Missouri Approved Instructions, 17.13 and 17.-02. He concedes that plaintiff “made a case of primary negligence against the defendant on failure to yield the right-of-way, and probably in failure to keep a lookout.” But, he asserts, “driving on the wrong side of the road is a theory of recovery that was not supported by the evidence.”

Without dispute the evidence shows the point of impact occurred in the north lane of traffic four feet from the north edge of the highway. At the time of the collision the right wheels of plaintiff’s automobile were three or four feet off the pavement on the north shoulder. Plaintiff’s husband said defendant made a “longer than normal turn”; that “defendant started turning before he got to the cemetery drive, a car length or two.”

Defendant testified that a car length or more from the entrance he was starting out of the middle lane into the north lane. On another occasion he testified that he was about 35 or 40 feet from the driveway when he started his turn into the north lane. Previously the defendant crossed the yellow no-passing line to move into the center lane.

The jury could fairly infer from the evidence that from a car length to 40 feet west of the cemetery drive the defendant drove into the north lane of traffic in the path of plaintiff’s vehicle and continued in that lane to the point of collision. In our opinion, the physical facts and the testimony support the submission that defendant “drove on the wrong side of the road.”

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BROADDUS, Special Commissioner, is adopted as the opinion of the Court.

All concur.