author: STONE, Judge.

text:
    Lola Mae COPHER, Plaintiff-Respondent, v. E. L. BARBEE d/b/a Royal Crown Bottling Company and Safeway Stores, Inc., Defendants-Appellants.
    Nos. 8104, 8106.
    Springfield Court of Appeals, Missouri.
    Oct. 1, 1962.

      McReynolds, Flanigan & Flanigan, George M. Flanigan, Carthage, for defendant-appellant, E. L. Barbee, d/b/a Royal Crown Bottling Co.
    Richard K. McPherson, Richart, Titus & Martin, Joplin, for defendant-appellant, Safeway Stores, Inc.
    Myers & Birk, Edward G. Farmer, Jr., Joplin, for plaintiff-respondent.
   STONE, Judge.

In this factually-unique rolling-exploding bottle case, the trial court, sitting as a jury, entered judgment for $3,429.80 in favor of plaintiff, Lola Mae Copher, and against defendants, E. L. Barbee d/b/a Royal Crown Bottling Company and Safeway Stores, Inc. From that judgment, Barbee and Safeway have perfected separate appeals, which have been consolidated for appellate disposition.

The accident under ' consideration occurred shortly after 8 P.M. on Wednesday, July 16, 1958, in Safeway’s self-service store in Webb City, Missouri. Plaintiff, 47 years of age, on an errand for her mother "to pick up a carton of strawberry pop and a sack of potatoes,” entered the front of the store which faced toward the south and immediately proceeded to “the pop display” which was along the east wall about, midway between the front and the rear of the store. In describing the pop display plaintiff said that there were “pop bottles, empty bottles, full bottles, sitting on the floor,” with some in cartons and some out of cartons; that there were both full and empty bottles on the shelves (there was more than one shelf but “how many I'don’t know”); and that some of the pop 'was stacked (it was not stacked to her “eye level” but “how high ... I don’t know”)-. Plaintiff’s witness Martin (not a 'Safeway employee), who for some thirty to forty-five minutes prior to the explosion had been working on the refrigeration unit of an ice cream cabinet along the east wall adjacent to and immediately north of the pop display, was uncertain and indefinite in his description of the pop display: “It was either a wooden rack or a metal rack with bottles, some of them was on the floor. As I -remember, there could have been two or three cartons on the floor . . . and I think they were stacked on the south end of the (ice cream) cabinet. Now, whether that was in a shelving, I wouldn’t want to say that.” Similarly, on direct examination Martin “couldn’t tell . . . for sure”— “I wouldn’t want to” — whether there were any loose bottles on the floor, although on cross-examination he thought that, after the expldsion, he had seen some loose bottles at the south end of the ice cream cabinet.

Whatever the precise state of the pop .display might have been at that time, plaintiff stood (so she said) “possibly three min.utes” in front of that display looking for strawberry pop. As her further testimony ■ r-an,'she observed a man (subsequently identified as witness Martin) working north of the pop display; but, to the best of her knowledge, no one was in the immediate vicinity of the pop display while she was in front of it. She stood “a few steps” from the display and (so she insisted upon trial) neither touched nor reached • for any bottle or carton. Suddenly (in her language) “I heard two bottles — saw two bottles just rolling on the floor from the direction of where the pop was stacked and I looked at it.” The “sound” attracted her attention to the bottles, already rolling on the floor when she first saw them. She did not know in what place or position the bottles had been or what had caused them to roll, but she was sure that they were “rolling from the pop section — not to it, but from it.” As she watched them, the bottles rolled “a short ways” (her statement upon trial) or about four or five feet (her deposition estimate). When “they stopped rolling, I went over and picked one bottle up . . . put it in a carton that I picked up from the floor and set it (on) either the first or second shelf,” and then “went to pick the other bottle up.” As she was bending over with her right hand “close” to it — -“just ready to take hold”- — the bottle on the floor “blew up” resulting in a severe laceration on her right arm and glass fragments in her face and neck. Plaintiff positively identified both rolling bottles as having been filled bottles of Royal Crown Cola.

Witness Martin, the refrigeration engineer, thus described the occurrence: “Well, the first thing that drew my attention was, it sounded like a bottle had been tipped or had been dropped — I wouldn’t say which way — they would be the same amount of sound, and it drawed my attention and I turned around and, as I can remember it, the bottle was rolling and (plaintiff) was reaching over to pick it up,” when the bottle “exploded” with sufficient force that glass fragments were thrown into Martin’s tool box some six feet distant. As with plaintiff, Martin had “no idea whatsoever” as to what had put the bottle in motion. Significantly, Martin stated that, during the preceding thirty to forty-five minutes while he had been working on the nearby refrigeration unit, he had seen no one around the pop display. Other evidence will be noted in connection with our discussion of the legal questions raised.

Plaintiff undertook to plead a cause of action under the res ipsa loquitur doctrine against both defendants, and the primary and principal issue upon defendant Barbee’s appeal is whether “plaintiff is entitled to the doctrine of res ipsa loquitur in her suit against the bottler.” Among the cases cited under this point in plaintiff’s brief is Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, which is indeed the leading and controlling authority in this jurisdiction on the question as to whether there may be a res ipsa submission against the bottler under circumstances such as those in the instant action; but neither Maybach, supra, nor Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292 (also cited in plaintiff’s brief), in which we followed Maybach, afford any foundation for plaintiff’s contention that she may invoke the res ipsa doctrine against bottler Barbee. Quite to the contrary, our Supreme Court plainly and pointedly said in Maybach, supra, that “ (w) e do not regard this as a res ipsa loquitur case . . . ” [359 Mo. loe. cit. 451, 222 S.W.2d loe. cit. 89], again that “(m)ere proof of the explosion did not create an inference of negligence on the part of defendant (bottler) and thus bring the case under the 'res ipsa rule” [359 Mo. loe. cit. 453, 222 S.W.2d loe. cit. 90(5)], and finally that “the case should be submitted, not as a true res ipsa loquitur case, but as one depending in part upon circumstantial evidence.” [359 Mo. loe. cit. 456, 222 S.W.2d loe. cit. 92] (All emphasis herein is ours.) The rationale of this holding, as sound and logical today as it was then, was well-stated in this- language: “An essential element of the res ipsa doctrine is that proof of the occurrence and attendant circumstances shall point, prima facie, to negligence on the part of the defendant. Such proof cannot, with- • out further proof, point to the negligence of a defendant who is entirely out of control of the instrumentality at the time it causes the injury. Such proof may tend to indicate negligence on the part of some one, but further proof is necessary to definitely fix the blame on the defendant by excluding causes for which he is not responsible.” [359 Mo. loe. cit. 453, 222 S.W.2d loe. cit. 90]

In harmony with Maybach, supra, the subsequent decisions in Missouri have held uniformly that an action of this character may not be submitted against the bottler under the res ipsa loquitur doctrine but that this does not preclude a plaintiff from making a submissible case of general negligence by circumstantial evidence [Kees v. Canada Dry Ginger Ale, Mo.App., 225 S. W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187-188; Ferrell, supra, 320 S.W.2d loe. cit. 294], when plaintiff’s “proof as to the explosion itself (is) coupled with and supplemented by substantial evidence tending to show that, after the bottle (which subsequently exploded) had passed from defendant’s (the bottler’s) possession and control, it had not been damaged or handled negligently and had not been subjected to unusual temperature change.” Ferrell, supra, 320 S.W.2d loe. cit. 294— 295.

In an effort to escape from the controlling authority of Maybach, supra, instant plaintiff boldly argues that the earlier case of Stolle v. Anheuser-Busch, 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001 (in which plaintiff was permitted to plead a cause of action against the bottler under res ipsa), although “questioned . . . has never been positively overruled" and “is still the law of Missouri.” A sufficient answer to this argument is found in Maybach, supra, where the court said that “(w)e think the result reached in sustaining the petition in the Stolle case is correct, because the petition states a cause of action for general negligence, (b)ut we think the opinion extends the res ipsa doctrine too far and farther than we have been willing to extend it in other cases” and 'then announced the unequivocal ruling, accompanied by the here-inbefore-quoted statement of rationale, that plaintiff Maybach had not made a res ipsa case. [359 Mo. loe. cit. 453, 222 S.W.2d loe. cit. 90] We note also that the St. Louis Court of Appeals had no difficulty in discovering and no hesitancy in stating that “the Stolle case has been overruled by the Maybach case.” Stephens, supra, 232 S.W.2d loe. cit. 187.

In like vein but (as we think) with no more basis, plaintiff’s counsel vigorously insist that Parlow v. Carson-Union-May-Stern Co., Mo., 310 S.W.2d 877, “strongly qualifies and almost completely overrules” Maybach, supra, and that Adam Hat Stores v. Kansas City, Mo. (banc), 316 S.W.2d 594, “absolutely overrules the holding (in Maybach, supra) insofar as it relates to the applicability of the doctrine of res ipsa loquitur in cases of this character.” Neither Parlow nor Adam Hat Stores was an exploding bottle case. In Parlow, the court cited and quoted from Maybach (but with no criticism thereof) in listing the cases relied upon by defendant-appellant which “are distinguishable upon their facts.” [310 S.W.2d loe. cit. 883] Maybach was not cited or discussed in Adam Hat Stores, where the admittedly “close and vexing” question was as to “the application of the res ipsa doctrine to the bursting of an underground water main owned, operated and under the exclusive control of the (defendant) city.’ [316 S.W.2d loe. cit. 596] The opinion emphasized that “(t)he city selected the pipe, laid it and exclusively managed and controlled it.” [316 S.W.2d loe. cit. 598] Certainly, the holding predicated on the factual situation in Adam Hat Stores reasonably cannot be regarded as overruling or in any wise weakening the now-settled line of authority beginning with Maybach, where denial of the applicability of res ipsa in exploding bottle suits against the bottler rests squarely upon the fact that the injury-producing instrumentality has passed beyond the bottler’s control or right to control. In this connection, see •Kornberg v. Getz Exterminators, Inc., Mo] 341 S.W.2d 819, 821, where it was observed again that “Maybach was not regarded as being a res ipsa case, and the opinion expressly so stated” and where Maybach obviously was treated as an authoritative holding that, in a case of that character, “the res ipsa rule was inapplicable” and “the case should be submitted, not as a true res ipsa case, but as one depending in part on circumstantial evidence.” Rejecting the multiple arguments of instant plaintiff to the contrary, we conclude that she was not entitled to submit under res ipsa against bottler Barbee and that her judgment against him may not be sustained on that theory.

We pass to plaintiff’s secondary contention that, in any event, her judgment against Barbee should stand because she “made a circumstantial evidence case” against him. Proper resolution of this question entails further factual analysis that we may determine whether, as stated in Ferrell, supra, 320 S.W.2d loe. cit. 294-295 (the sole case cited by plaintiff under this point), her proof as to the explosion itself was coupled with and supplemented by substantial evidence tending to show that, after the rolling-exploding bottle had passed from Bar-bee’s possession and control, (a) it had not been damaged or handled negligently and (b) it had not been subjected to unusual temperature change. The only evidence relevant to either of these subjects came from Safeway’s assistant manager Green, called as a witness by plaintiff. For the purposes of this opinion, we assume (without, however, so deciding) that substantial evidence, which would have permitted a finding that the rolling-exploding bottle had not been subjected to any unusual temperature change, was supplied by the single question to Green, “do you maintain your store in a fairly even temperature,” and by his laconic reply, “try to.”

Turning to the question whether there was substantial evidence tending to show that the rolling-exploding bottle had not been damaged or handled negligently after passing from Barbee’s possession and control, we note initially the undisputed facts that all Royal Crown Cola stocked by Safeway had been bottled by and purchased from Barbee and that Barbee’s last delivery to Safeway prior to the accident on July 16 had been five days previously on July 11, 1958. But Green’s testimony bearing upon Safeway’s handling of Royal Crown Cola in general and of the rolling-exploding bottle in particular was confined to uncertain probabilities and unsatisfactory generalities, of which the following are illustrative. Green did not remember whether Barbee had made one or two deliveries each week during the Summer of 1958, and he did not know when the rolling-exploding bottle had come into the Safeway store. “I hardly think it had been there a month, but it could have been there over a week.” Bottled beverages sometimes were stored initially “in the back room”; but, although Green surmised “probably not that item,” he frankly confessed no knowledge as to whether Royal Crown Cola was being stored “in the back room” at the time of accident. After offering the generalizations that “most of the time they (Barbee’s employees) stock the pop, although we check it,” and that “usually they” placed the pop on the shelves when it was delivered, he shortly conceded that it was “possible” that the rolling-exploding bottle had been brought out of the stock room and had been placed on a shelf by a Safeway employee and that “actually” he (Green) did not know when or by whom the rolling-exploding bottle had been put in the pop display.

As plaintiff’s counsel here point out, Green injected the comment that “I doubt if it (the rolling-exploding bottle) had been handled since it was placed on the shelf, whatever time the delivery was”; but, taken as a whole, Green’s testimony demonstrates and establishes that the quoted statement could have reflected nothing more than personal surmise and speculation. Green was only one of four employees in Safeway’s store at Webb City, and he was not in the store all of the hours it was open for business, towit, from 9 A.M. to 9 P.M. daily. It is a well-known fact of present-day business life that customers in self-service stores indubitably have and freely exercise the practically unrestricted privilege of moving, picking up, handling, examining and relocating items displayed for sale [Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 317, 118 S.W.2d 509, 512; Cohen v. Penn Fruit Co., 192 Pa.Super. 244, 159 A.2d 558, 560(4)]; and Safeway’s customers in the Webb City store indulged the same privilege. Green said that “it’s our job to go around and pick everything else up and see to it that it is kept clean”; and, when asked specifically “if customers more or less put the pop area in disarray, your employees place it back in a neat position, do they not,” Green modestly assented, “we try to,” and then quickly agreed that was part of his job. In response to the inquiry as to how many times he would have inspected the pop display between the preceding Monday morning and the Wednesday evening of the explosion under inquiry, Green answered: “ . . .It should be set up where it wouldn’t have to be worked . . . unless there was something unusual, bottles all over the place, or something did not look right. You always look as you go down the aisle to see that everything is you might say decent and in order; ... no telling how many times a day you’d walk up and down the aisle, but to inspect the RC or any particular beverage, I couldn’t tell you.”

In the circumstances of this case, Green’s "doubt” that the rolling-exploding bottle “had been handled since it was placed on the shelf, whatever time the delivery was” did not constitute substantial evidence justifying or permitting a finding to that effect; and, with nothing in Green’s testimony haying more probative value or force on this particular subject and with no other witness having offered any testimony relevant to this specific inquiry, we are impelled to conclude that instant plaintiff failed to adduce substantial evidence which would have justified or permitted one of the findings prerequisite to entry of judgment against bottler Barbee, i. e., that the rolling-exploding bottle had not been damaged or mishandled after it had passed from Bar-bee’s possession and control. Accordingly, the judgment against defendant Barbee is reversed.

We turn to a consideration of defendant Safeway’s appeal. Numerous Missouri cases have adopted and followed the definitive statement in McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641, that “the doctrine res ipsa lo-quitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.” And, although not included in this definitive statement of an essential element of the doctrine, it would seem that, to make a prima facie case under the res ipsa loquitur doctrine, the evidence reasonably must exclude plaintiff’s negligence as a contributing cause of the injury or, in other words, it reasonably must appear that the accident would have happened regardless of any voluntary action at the time by the injured party.

Safeway presents several subpoints under its basic complaint that the case was not submissible against it under the res ipsa loquitur doctrine. The first such sub-point is that, to sustain her charge of negligence against defendant Barbee, plaintiff “had to prove the bottle which exploded never left the possession, or constructive possession, of that defendant” and “by so claiming, plaintiff cannot show exclusive possession thereof to have ever been in defendant Safeway.” In its effort to support this subpoint, Safeway misconstrues the Maybach, Ferrell, Stephens and Kees cases, supra, as holding that, upon “a showing nothing untoward happened to the bottle after it came into the possession of others before the explosion . . . the actual transfer will be ignored and constructive possession will be deemed still to repose in the manufacturer (bottler).” On the contrary, those cases did not ignore, but rather recognized and emphasized, that the exploding bottle had passed from the bottler’s possession and control and, for that very reason, pointed out the necessity of other proof, in addition to that of the explosion and attendant circumstances, which would exclude causes for which the bottler would not be liable. The second element of the res ipsa doctrine, i. e., that the injury-producing instrumentality must have been under defendant’s management and control at the time of accident, does not mean actual physical control at the moment of injury but refers to the right of such control [Parlow, supra, 310 S.W.2d loe. cit. 881, and cases there cited]; and, on the undisputed facts of the instant record, Safeway had the absolute and exclusive right of control over the rolling-exploding bottle at all times after delivery of that bottle to its store.

But, in another subpoint, Safeway asserts in substance that, by reason of the theory allegedly pleaded in plaintiff’s petition, she thereafter was precluded from urging that Safeway ever had exclusive right of control over the rolling-exploding bottle and thus from recovering under the res ipsa doctrine. In this connection, Safeway points to that portion of the petition which charged that the rolling-exploding bottle “was solely and exclusively within the successive possession and control of each of the defendants, during its manufacturing, bottling, handling, storage, transportation, distribution or display and during the time in which the negligent acts of the defendants occurred, the defendants (having) exclusive and superior knowledge of their precise acts of negligence which caused the bottle of Royal Crown Cola to explode when picked up by the plaintiff.” By the quoted language, plaintiff sought to plead a case under the res ipsa loquitur doctrine against both defendants [cf. Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 319, 38 A.L.R.2d 887, 891]; but, as we have seen, that doctrine was not available to her against bottler Barbee. However, it does not follow that this made the petition fatally insufficient as against Safeway.

“Successive” is synonymous with “consecutive” [State v. Hitchcock, 124 Mo. App. 101, 105, 101 S.W. 117, 118(3); Rice v. United States, 9 Cir., 7 F.2d 319, 320; Ex parte Rice, D.C.Cal., 6 E.2d 167, 170-171] and means “following each other or another without interruption or interval.” Webster’s New International Dictionary (2nd Ed.), p. 2517. Thus, plaintiff’s averment that the rolling-exploding bottle had been “within the successive possession and control of each of the defendants” was not a plea of joint or concurrent control by both defendants but rather might be construed reasonably as a plea of successive or consecutive periods of individual or separate control, i. e., of a period of exclusive possession and control for a time by one defendant followed immediately by a period of exclusive possession and control by the other defendant. Indeed, Safeway’s counsel so recognize in their brief. No attack having been made on the petition prior to judgment, every reasonable intendment to support its sufficiency should be indulged upon appeal [Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 621(13); McCallum v. Executive Aircraft Co., Mo. App., 291 S.W.2d 650, 655(4)]; and, considered in that light, we think the petition sufficient after judgment. Cf. Baugher v. Gamble Const. Co., 324 Mo. 1233, 26 S.W.2d 946, 948-949(4, 6). It is true that, as Safeway urges, courts should not suffer a plaintiff to plead her case on one theory and to recover on another [Hein v. Chicago & E. I. R. Co., Mo.App., 209 S.W.2d 578, 581 (2); Hughes v. Kiel, Mo.App., 100 S.W.2d 48, 50(1)], but we perceive no basis for application of that principle here. Plaintiff pleaded general negligence and invoked the res ipsa doctrine, the case was tried on that theory, and her recovery against Safeway was on the same theory.

Safeway also contends that a res ipsa case was not made against it because, under the evidence, “it is equally as reasonable to infer the bottle exploded because of the negligence of defendant Bar-bee and . . . equally as reasonable to infer the bottle rolled because of the action of a customer of the store or some other cause unknown to defendant Safeway.” We are cognizant of, and in entire agreement with, the holdings that the mere fact that a plaintiff is shown to have been injured by an accident or explosion is not sufficient, in and of itself, to make a submissible case under the res ipsa loquitur doctrine, and that it is incumbent upon one invoking that doctrine to present a state of facts and attendant circumstances reasonably permitting and justifying the drawing of an inference of defendant’s negligence. Thus, “ ‘if two or more inferences can be equally well drawn from (the facts relied on), one of which points to negligence on the part of the defendant as the cause of plaintiff’s injury, and the others to causes for which the defendant was in no way responsible, proof of such facts does not make out a prima facie case for plaintiff.’ ” On the other hand, it is settled beyond room for argument that, to come within the doctrine, a plaintiff need not establish a state of facts negating and excluding every reasonable hypothesis except that of defendant’s negligence.

Res ipsa loquitur is an eviden-tiary “doctrine of probabilities,” and its applicability in a given situation depends upon whether it reasonably may be said that the facts and circumstances raise an inference of defendant’s negligence or, otherwise stated, that the accident probably would not have occurred but for defendant’s negligence. In a determination of the balance of probability, a judicial inquiry which frequently becomes exceedingly delicate, delusive and difficult because of “our almost complete lack of anything approaching accurate knowledge of where the balance of probability lies in many of the situations presented” [2 Harper & James, Torts, § 19.4, loc. cit. 1069], the court may rely upon expert testimony and “common knowledge.” Evangelio v. Metropolitan Bottling Co., 339 Mass. 177, 158 N.E.2d 342, 346 (3); Zentz v. Coca Cola Bottling Co. of Fresno, 39 Cal.2d 436, 247 P.2d 344, 349. And where, as in the case at bar, no expert testifies, distinguished authors in the field of torts tinge realism with cynicism in suggesting that “(t)he result is a void, so far as accountability to any genuinely scientific standards go; it is a matter of dealer’s choice and the court is the dealer,” with determination of the balance of probability likely to “rest on the court’s own very fallible notions about such things ... or (to) spring from considerations of policy and expediency, more or less consciously perceived.” 2 Harper & James, Torts, § 19.4, loc. cit. 1070-1071.

It is a matter of common knowledge that there are many possible causes for explosions of bottles containing carbonated,beverages. 1 Frumer & Friedman, Products Liability, § 26.01(6), pp. 686-695 (1961); Evangelio v. Metropolitan Bottling Co., supra, 158 N.E.2d loe. cit. 346; Roper v. Dad’s Root Beer Co., 336 Ill.App. 91, 82 N.E.2d .815, 816. Where a bottle explodes “and nothing further appears,” the same distinguished authors opine that “it is at least as likely that the mishap occurred because of something done to the bottle after it left the bottling plant as that it occurred because of anything the bottler did” [2 Harper & James, Torts, § 28.14, loe. cit. 1566], citing as authority a consulting scientist who stated that “(o)ver a period of fifteen years of examining broken bottles the writer has failed to find, under normal commercial conditions, a soft drink bottle broken simply and solely by internal pressure.” Dingwall, Exploding Bottles, 11 NACCA Law Journal 158 (1953). But there is no evidence in the instant case bearing upon bottle explosions in general or the cause of the specific bottle explosion under consideration; and, if the case at bar involved no more than an unexplained bottle explosion, we frankly confess that our determination of the balance of probability (i. e., whether it reasonably might be said that the facts and circumstances would raise an inference of Safeway’s negligence) would be indeed “a matter of dealer’s choice” with the dealer uncertain and the choice motivated by nothing more sound and solid than “very fallible notions.” For, ■although the mere showing that a bottle had exploded in a store might bespeak negligence on the part of someone, it might not locate or fix the blame on the retailer. Cf. Maybach, supra, 359 Mo. loe. cit. 453, 222 S.W.2d loe. cit. 90; Estes v. Estes, Mo. App., 127 S.W.2d 78, 80. Authors and editors indicate that, generally speaking, an exploding bottle case is not, or should not be, submissible against a retailer under the res ipsa doctrine. Confronted with specific situations, courts in other jurisdictions have in some instances permitted, and in other cases denied, a res ipsa submission against the retailer.

However, this is not a run-of-the-mill exploding bottle case but rather a factually-unique rolling-exploding bottle situation. It will be remembered that plaintiff said that she was standing “a few steps” from the pop display and that she had neither touched nor reached for any bottle or carton, when she “heard two bottles — saw two bottles just rolling on the floor from the direction of where the pop was stacked,” and that witness Martin, the refrigeration engineer, stated that, during the preceding thirty to forty-five minutes while he had been working on the near by refrigeration unit, he had seen no one around the pop display. Safeway’s assistant manager Green testified that he had walked along the aisle in front of the pop display several times that evening, the last time no more than twenty to thirty minutes prior to the explosion. When asked what he had seen on that occasion, Green answered: “ . I would say that I hadn’t noticed particularly anything but if there had been anything particularly out of the way, I think I would notice it” — “it (my inspection) evidently did not disclose anything, or I would have cleaned it up, and I don’t recall cleaning up any bottles.” This evidence reasonably would have permitted the trier of the facts to find (a) that, whatever the condition of the pop display at the time of accident might have been, such condition actually had been observed by Safeway’s assistant manager Green shortly prior thereto, and (b) that, whatever the cause or causes of the rolling and of the explosion of the injury-producing bottle might have been, no action or conduct on the part of any customer or bystander after such observation by Green was a contributing factor or cause. Insofar as the rolling of the bottle was concerned, we are satisfied that (contrary to Safeway’s contention) it fairly might be said that Safeway possessed either superior knowledge or means of information as to the cause of the occurrence [see cases cited in note 3] and that the balance of probability justified an inference of Safeway’s negligence. See particularly Barker v. Crown Drug Co., Mo., 284 S.W.2d 559, 560(2), and Chapman v. Redwine, Colo., 370 P.2d 147, 151(6), both of which were falling-breaking bottle cases.

But Safeway argues that the rolling of the bottle “in and of itself was not sufficient to cause the bottle . to break or explode” and that, therefore, the negligence of Safeway “was, at the most, only incidental and . . . not the proximate cause of the accident.” The usual test as to causal connection between negligence and injury, to which our Supreme Court long has been committed, is whether the facts show that, absent the negligent act or conduct, the injury would not have occurred; and it usually is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading to the injury or damage. In the final analysis, questions as to causal connection and proximate cause must be determined on the particular facts of the situation under consideration [Duke v. Missouri Pac. R. Co., Mo., 303 S.W.2d 613, 618(5); Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824(2) ]; and, in the case at bar, we have no difficulty in reaching the conclusion that Safeway’s negligence (inferred under the res ipsa doctrine), which caused the bottles to roll from the pop display, set in motion the chain of circumstances leading to plaintiff’s injury, and that, even if one of the bottles had exploded anyway, it is reasonably inferable that plaintiff, standing “a few steps” from the pop display, would have suffered no injury but for that negligence which rolled the bottles toward her. Regardless of whether the negligence of another may have caused or contributed to cause the explosion, Safeway may be held liable if its negligence, in combination with such negligence of another, resulted in plaintiff’s injury. Domitz v. Springfield Bottlers, 359 Mo. 412, 221 S.W.2d 831, 832-833(5, 6). The cases cited by Safeway under this subpoint are not factually analogous and do not point to a different conclusion here. E. g., this is not a situation in which Safeway’s negligence had become passive and plaintiff was injured by an intervening efficient cause, as in Duke v. Missouri Pac. R. Co., Mo., 303 S.W.2d 613, or in which Safeway’s negligence properly might be said to have been only a prior and remote cause with a distinct, successive, unrelated and efficient cause thereafter intervening between such prior and remote cause and the injury, as in Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770, or in which Safeway’s negligence reasonably might be regarded as “too remote to be causative in a legal sense,” as in Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 246 (6).

Strictly limiting our holding to the specific facts presented in the record, we conclude that plaintiff made a submissible case under the res ipsa loquitur doctrine against Safeway. Whether plaintiff carried her burden of proof and was entitled to a judgment depended in large measure upon the credibility of the witnesses and the weight and value of their testimony. The learned trial judge, from many years of experience wise as to the ways of witnesses, substantially accepted plaintiff’s version of the occurrence and the supporting testimony of others. Although, in a court-tried action, it is our duty to “review the case upon both the law and the evidence as in suits of an equitable nature,” we are directed to accord due deference to the findings of the trial court whose opportunity to judge of the credibility of the witnesses is far superior to ours, and we are enjoined from setting aside the judgment nisi unless it is clearly erroneous. Rule 73.01(b), V.A.M.R.; V.A.M.S. § 510.310(2) ; Becke-meier v. Baessler, Mo., 270 S.W.2d 782, 783 (1); Rauth v. Dennison, Mo.App., 357 S. W.2d 201, 206(5); K-V Builders, Inc. v. Thomas, Mo.App., 353 S.W.2d 130, 132(1); Magers v. Western and Southern Life Ins. Co., Mo.App., 335 S.W.2d 355, 357(1). Since independent examination and review of the instant record, with appropriate regard for the stated principles, leaves us unable to say that the judgment against defendant Safeway was clearly erroneous, it becomes our plain duty to affirm it.

Accordingly, the judgment for plaintiff is reversed as to defendant Barbee and is affirmed as to defendant Safeway.

RUARK, P. J., and McDOWELL, J., concur.

      . Kees v. Canada Dry Ginger Ale, 239 Mo.App. 1080, 1086-1087, 199 S.W.2d 76, 77-78(3), second appeal Mo.App., 225 S.W.2d 169, 170-171. See Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 791(7), and cases there cited; Armstrong v. Croy, Mo.App., 176 S.W.2d 852, 853(1-3); Prince v. Bennett, Mo., 322 S.W.2d 886, 890-S91.

      . Of course, each case must be decided upon its own particular facts, but the following cases are consonant with, and tend to support, our conclusion as to defendant Barbee: Sees, supra note 1; Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181; Joffre v. Canada Dry Ginger Ale, Inc., 122 Md. 1, 158 A.2d 631, 635-636; Miami Coca-Cola Bottling Co. v. Keisinger, Fla., 68 So.2d 589; Roper v. Dad’s Root Beer Co., 336 Ill.App. 91, 82 N.E.2d 815; Monroe v. H. G. Hill Stores, La.App., 51 So.2d 645.

      . Parlow v. Carson-Union-May-Stern Co., Mo., 310 S.W.2d 877, 881(1); Carter v. .Skelly Oil Co., 363 Mo. 570, 252 S.W. '2d 308, 307 (1); Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S:W. 2d 123, 129(9); Lober v. Kansas City, Mo., 74 S.W.2d 815, 819; Hart v. Emery, Bird, Thayer Dry Goods Go., 233 Mo. App. 312, 118 S.W.23 509, 511(2). See also Gateway Chemical Go. v. Groves, Mo., 338 S.W.2d 83, 85(1); Layton v. Palmer, Mo., 309 S.W.2d 501, 564(2), 66 A.L.R.2d 1242; Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W.2d 109, 112(4); Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 82(2).

      .Frazier v. Ford Motor Co., 365 Mo. 62, 70, 276 S.W.2d 95, 100; Charlton v. Lovelace, 351 Mo. 304, 173 S.W.2d 13, 18 (5); Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575, 581(7); Pros-ser on Torts (2nd Ed.), pp. 199, 201, 208; 2 Harper and James, Torts, § 19.8, p. 1093; Wigmore on Evidence (3rd Ed.), § 2509, loe, eit. 3S1-382.

      . Carter v. Skelly Oil Co., supra, 363 Mo. loe. cit. 574, 252 S.W.2d loc. cit. 308 (3); Welch v. Thompson, supra, 357 Mo. loc. cit. 716, 210 S.W.2d loc. cit. 84; Palmer v. Hygrade Water & Soda Co., 236 Mo.App. 247, 251, 151 S.W.2d 548, 551 (4); Hart v. Emery, Bird, Thayer Dry Goods Co., supra, 233 Mo.App. loc. cit. 318, 118 S.W.2d loe. cit. 513(12).

      . Shafer v. Southwestern Belli Tel. Co., supra, 295 S.W.2d loc. cit. 111(1), 113 (6); Charlton v. Lovelace, supra, 351 Mo. loc. cit. 370, 173 S.W.2d loe. cit. 16-17 (2); Gallagher v. St. Louis Public Service Co., 332 Mo. 944, 59 S.W.2d 619, 622(4); Nelson v. C. Heinz Stove Co., 320 Mo. 655, 8 S.W.2d 918, 920(2).

      . Frazier v. Ford Motor Co., supra, 365 Mo. loc. cit. 69, 276 S.W.2d loc. cit. 99; Charlton v. Lovelace, supra, 351 Mo. loc. cit. 872, 173 S.W.2d loc. cit. 18; Grind-staff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 80, 40 S.W.2d 702, 705. See also Estes v. Estes, Mo. App., 127 S.W.2d 78, 80(2), 81(5, 7).

      . Bone v. General Motors Corp., Mo., 322 S.W.2d 916, 921, 71 A.L.R.2d 361; Shafer v. Southwestern Bell Tel. Co., supra, 295 S.W.2d loc. cit. 113(5); Warner v. Terminal B.. Ass’n. of St. Louis, 363 Mo. 1082, 257 S.W.2d 75, 79(3); Maxie v. Gulf, M. & O. R. Go., 358 Mo. 1100, 219 S.W.2d 322, 325(5), 10 A.L.R.2d 1273.

      . Frazier v. Ford Motor Co., supra, 365 Mo. loc. cit. 68, 276 S.W.2d loc. cit. 98; Byers v. Essex Inv. Go., 281 Mo. 375, 382, 219 S.W. 570, 571; Bobbitt v. Salamander, 240 Mo.App. 902, 911, 221 S.W. 2d 971, 976; Hart v. Emery, Bird, Thayer Dry Goods Go., supra, 233 Mo.App. loc. cit. 315, 318, 118 S.W.2d loc. cit. 511, 513.

      . In Sansone v. National Food Stores, Inc., Mo.App., 352 S.W.2d 375 (cited by instant plaintiff), tlie only exploding bottle case against a retailer reported in this jurisdiction, the court held that plaintiff’s petition, the allegations of which necessarily were accepted as true in determining the legal sufficiency of the petition, pleaded a res ipsa case against defendant retailer; but, Sansone involved no issue with respect to, and thus the court did not consider or deal with, the quantum of proof which might justify resolution of the balance of probabilities in favor of submission of an exploding bottle case against the retailer under the res ipsa doctrine.

      . 1 Frumer & Friedman, Products Liability, § 26.02(3), p. 739 (1961); 1954 Wash.U.L.Q. 215, 224-225; annotation 4 A.L.R.2d 466, 482 (1949); annotation 81 A.L.R.2d 229, 305-307 (1962), listing however eases permitting recovery for breach of warranty.

      .For cases permitting such submission, see Loch v. Confair, 372 Pa. 212, 93 A.2d 451; Day v. Grand Union Co., 304 N.Y. 821, 109 N.E.2d 609, aff’g. 280 App.Div. 253, 113 N.Y.S.2d 436; Frontenac v. Great Atlantic & Pac. Tea Co., 297 N.Y. 998, 80 N.E.2d 455, aff’g. 273 App.Div. 766, 75 N.Y.S.2d 658; Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263. See also Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R. 2d 887. For cases denying such submission, see Joffre v. Canada Dry Ginger Ale, Inc., 122 Md. 1, 158 A.2d 631, 635-636; Atwell v. Pepsi-Cola Bottling Co. of Washington, D. C., D.C.Mun.App., 152 A.2d 196, 198; Noonan v. Great Atlantic & Pac. Tea Co., 104 N.J.L. 136, 139 A. 9, 56 A.L.R. 590; Monroe v. H. G. Hill Stores, Inc., La.App., 51 So.2d 645, 651 (7). See also Sanders v. Nehi Bottling Co., D.C.Tex., 30 F.Supp. 332.

      . Votrain v. Illinois Terminal R. Co., Mo. (banc). 268 S.W.2d 838, 843(4); Wood v. St. Louis Public Service Co., 362 Mo. 1103, 1109, 246 S.W.2d 807, 811(4); Rose v. Thompson, 346 Mo. 395, 402, 141 S.W.2d 824, 828(4); Kimberling v. Wabash Ry. Co., 337 Mo. 702, 714, 85 S.W.2d 736, 741.

      . Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74, 78(8); Tliebeau v. Thebeau, Mo., 324 S.W.2d 674, 678(2); LaPlant v. E. I. DuPont de Nemoui’s and Co., Mo.App., 346 S.W.2d 231, 244(25); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 607(12).


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth Wayne TURNER, Plaintiff-Respondent, v. YELLOW CAB COMPANY OF SPRINGFIELD, Missouri, and LeRoy Breese, Defen dants-Appellants.
    No. 7954.
    Springfield Court of Appeals. Missouri.
    June 26, 1962.
    Motions for Rehearing or to Transfer Overruled July 18, 1962.
    Application to Transfer Denied by Supreme Court on Sept. 10, 1962.

      Chinn, White & Dickey, Springfield, for defendants-appellants.
    Haymes & Haymes, Marshfield, Farring-ton & Curtis, Springfield, for plaintiff-respondent.
   STONE, Judge.

For injuries and damages alleged to have resulted from a vehicular collision on August 21, 1959 (hereinafter referred to as the first accident), plaintiff, Kenneth Wayne Turner, obtained a jury verdict for $5,750. On this appeal from the judgment entered thereon, defendants seek a new trial on the issue of damages only. Their complaints are (1) that the verdict was excessive, (2) that it was so excessive as to demonstrate passion and prejudice against defendants and require reversal, and (3) that the trial court prejudicially erred in permitting plaintiff “to introduce evidence of injuries and expenses” in connection with another vehicular collision in which plaintiff was involved on October 3, 1959 (hereinafter referred to as the second accident).

The first accident occurred shortly after midnight on August 21, 1959, in Springfield, Missouri, when a station wagon owned and driven by plaintiff was “bumped from the rear” by a taxicab driven by defendant Breese and operated for defendant, Yellow Cab Company of Springfield. Although both vehicles were moving “very slow,” plaintiff said that the impact “wasn’t slight” —-“it was violent” — “it was a sharp blow”— and that his neck “snapped back” and his head “hit the back of the seat.” Alighting from their respective vehicles, the drivers examined the rear end of plaintiff’s station wagon, found a dent about the size of a quarter in the left rear bumper guard, and (with defendant Breese agreeing to replace the bumper guard) “decided it wasn’t enough to call the police.” We note parenthetically that, when plaintiff examined the rear end of his station wagon after his dismissal from the hospital on August 28, 1959, he then found (so he testified) that “the bumper guard was dented, the (rear) bumper was sprung, and it showed evidence there of where the bumper had been knocked up against the panel of the car and scraped the paint.”

Reverting to plaintiff’s account of what had occurred on the night of the first accident, we read that, when he got into his station wagon after he and defendant Breese had inspected its rear end, plaintiff noticed that “the front seat . . . wasn’t seated right,” but that he proceeded to a coffee shop for a sandwich and coffee before starting for his home in the neighboring city of Marshfield. While in the coffee shop, plaintiff “began to notice a pain in the back of my neck and my head kind of hurt,” so he went to the office of the Yellow Cab Com■pany and, failing to find defendant Breese there, located him and the taxicab dispatcher having coffee in a nearby restaurant. At the dispatcher’s direction, plaintiff and Breese went to the police station and reported the accident. Then returning to the taxicab office, plaintiff talked over the telephone with a Springfield doctor (called by the dispatcher), who suggested that plaintiff go home that night and come back the next morning. On the way out of Springfield, plaintiff’s “neck was hurting worse,” so he stopped at a service station and talked over long distance with his family physician at Marshfield who advised him “to turn right around and go back to Burge Hospital and to call Dr. (Erin M.) Dillard.” This plaintiff did.

Upon admission to the hospital, plaintiff was given a hypodermic and a sleeping pill; and in the morning Dr. Dillard examined him, arranged for a series of x-rays, made “an x-ray and a clinical diagnosis” of a compression fracture (i. e., a flattening of the body) of the sixth cervical vertebra, and placed him in traction. Within a day or so, plaintiff’s back began to hurt and the doctor directed that slats be placed under the mattress. Plaintiff laid on this hard bed in constant pain and in traction, except while receiving therapy treatments, until he was dismissed from the hospital on August 28, one week after his admission. Before dismissal, plaintiff was fitted with a neck brace or neck collar which, at the doctor’s direction, he wore until October 3. After further x-ray examination on that date, Dr. Dillard told plaintiff that he was progressing as well as possible and that he should “take the neck brace off for a week or ten days, to see how it got along, and (then) to come back for a recheck.”

While driving downtown after leaving the doctor’s office on October 3, plaintiff was involved in the second accident when, while stopped at a traffic light, his vehicle again was rear-ended. That impact “was harder” than the impact of the first accident; but, as plaintiff pointed out, he had observed the approaching automobile involved in the second accident before it struck his station wagon and thus was braced for it, whereas he had not seen the taxicab driven by defendant Breese prior to the first accident and accordingly it was unexpected. After reports had been made to investigating police at the scene of the second accident, plaintiff called Dr. Dillard over the telephone and, upon the doctor’s advice, reentered Burge Hospital immediately. Following that period of hospitalization which lasted five days, plaintiff again wore a neck collar “while I was driving” until December 1959. At a time subsequent to the second accident but fixed no more definitely than “along during the winter,” Dr. Dillard prescribed a back brace which plaintiff still was wearing when the case was tried on October 13, 1960.

At the time of trial, plaintiff complained of limitation of motion in the neck, “a catch” in his back when he straightened up after bending over, pain both in the neck and in the back, and numbness of both hands. Referring first to the neck, Dr. Dillard found “true muscle spasm,” which cannot be induced or feigned by a patient, in plaintiff’s neck following the first accident. It is apparent from Dr. Dillard’s testimony that this muscle spasm had not been completely relieved or entirely eliminated prior to the second accident, for, in discussing his examination of plaintiff at the hospital after the second accident, the doctor said that he had found “more muscle spasm in his neck than I had found, possibly, that day when he left the office.” (All emphasis herein is ours.) Stoutly supporting his diagnosis of a compression fracture of the sixth cervical vertebra (although conceding that the fracture was “minimal”), Dr. Dillard said that there had been no change in “this abnormality in his (plaintiff’s) neck vertebra” during the period from the first accident to the trial, and that this condition will be permanent. According to Dr. Dillard, “there has always been some limitation of movement of the neck ever since (plaintiff’s) injury”; and, when counsel probed as to the permanency of this limitation, the answer was that “I would anticipate some loss of motion of the neck, yes.” The doctor also “would anticipate some chronic pains in his neck ... in the future.”

Referring to the back, Dr. Dillard reported that x-rays of the dorsal and lumbar spine were essentially normal. But, as we have noted, plaintiff (so he said) began to experience pain in his back within a day or so after the first accident; and Dr. Dillard testified that when he saw plaintiff in the doctor’s office on September 3, 1959 (six days after dismissal from the hospital), plaintiff complained of pain in his low back and, after undergoing further examination on that date, was advised to restrict “any activities that would aggravate his low back condition.” This condition was diagnosed by the doctor as “a low-back strain or a lumbosacral strain . a strain-type injury to the muscles and ligaments of the lower back.” Dr. Dillard thought that, at the time of trial, plaintiff’s “principal disability lies in his neck”; and, although plaintiff then had “continued symptoms in his low back and this would be aggravated by heavy lifting,” the doctor attributed to the “lig-amentous and muscular strain” of the lower back such “subminimal disability that I feel that he (plaintiff) should make an almost complete recovery from that particular injury.”

As for the numbness of the hands, plaintiff’s testimony was that: “My hand has been numb, just like I had slept on them all night long, ever since the (first) accident.” Complaint concerning this alleged condition was made to Dr. Dillard on September 10, 1959, when (in the doctor’s words) “we first noticed numbess of both hands.” At the time of trial, the doctor thought that, “as his (plaintiff’s) neck establishes itself, that . . . numbness likely will disappear ... it has been merely an annoying numbness that doesn’t prohibit him from doing anything that he wants to do.” Plaintiff nevertheless asserted in his testimony that this alleged numbness of the hands was “one reason why I cannot do tedious work,” such as repair work on sewing machines and motors in which, among other things, he had been engaged immediately prior to the first accident.

At this point, it may be recorded that, when Dr. D. L. Yancey examined plaintiff at defendants’ request on June 3, 1960, the doctor found that, “along each trapezius muscle, which is the large muscle that extends from the shoulder up the neck and on each side, he (plaintiff) had some mild degree of tenderness,” and that, although anteroposterior motion of the neck was normal, motion was slightly restricted on rotation or turning of the head. Plaintiff then complained of some tenderness in the lumbar area and Dr. Yancey found that “motion was slightly limited when he (plaintiff) would bend forward and on turning to the side, he had a mild amount of restricted motion.” Summarizing his findings and testimony, Dr. Yancey was of the opinion that, at the time of his examination on June 3, 1960, plaintiff “had about reached his maximum recovery,” but that he still had some symptoms and “would probably have a minimal degree of permanent disability.”

The evidence with respect to plaintiff’s work and earnings immediately prior to the first accident was (1) that he had sold sewing machines for Singer and, in that sales work, had earned an average of $168.-77 per month, (2.)' that for “sewing machine service” he had earned more than $100 per month, and (3) that he had operated a store at Marshfield for Ellis Brown, in which employment he had assembled, handled, sold and serviced such articles as chain saws, garden tractors, boats and outboard motors, - and from -which he had earned an average of $194.45 per month under a profit-sharing agreement. Thus, plaintiff’s aggregate earnings immediately prior to the first accident had averaged $463.22 per month. - Dr.- Dillard;s opinion as to whether or when plaintiff might have been physically able to have returned to any of his former employments was neither sought nor given. However, plaintiff testified, without objection, that he quit all of those employments immediately after the first accident because: “I was limited to what I could do. I couldn’t lift. The doctor advised me not to do any lifting. And then the way my hands are now, I can’t do tedious work which sewing machine repair work requires . . . For a brief period prior to November 11, 1959 (beginning on a date not determinable from the record), plaintiff worked as a life insurance agent but that ill-advised, sterile career came to an early end because (as plaintiff put it) “I found I could not sell intangible merchandise.” After November 11, 1959, plaintiff traveled for a school supply firm, selling school maps in the -Western half of Missouri. His net income for the remainder of 1959 (after the first accident) was $104.90 and for the' first nine months of 1960 (the case was tried on October 13) was $1,859.37.

In defendants’ original brief, the emphasis was upon the alleged excessiveness of the verdict. However, in the orderly review of defendants’ appellate complaints, it would seem to be appropriate'to rule first the point alleging that the trial court prejudicially erred in permitting plaintiff “to introduce evidence of injuries and expenses” in connection'with the second accident, since, if that point were well-taken, it would necessitate retrial. As particularly pertinent in consideration of this point, certain additional evidence is noted. In response to a hypothetical question seeking his opinion whether “the fracture of plaintiff’s neck, the pain in his back and the numbness in his hands . . . have been caused by or re? suited from" the first accident, Dr, Dillard said, “Yes, sir, it is my feeling that these injuries did occur from that accident." And, when asked whether “the conditions that he complains of now with reference to limitation of the motion of the neck, of pain in his back, and numbness of his hands” re^ suited from the first accident, or the second accident, the doctor replied, “Well, I would say all of these symptoms were present, according to my records and according to my recollection, as a result of the injtiries sustained on the 21st of August; all 'these symptoms were present at that time, and continued through . . . the 3rd of October.” In this connection, see Long v. St. Louis -Public Service Co., Mo.App., 288 S.W.2d 417, 424-427, a second accident case.

On direct examination, plaintiff testified that “the pain in my neck and thq pain in my back has been the same” since the first accident; and, to the question, “how-soon was it (after the second accident) that you were back in the same condition that you were prior to that accident,” plaintiff answered, “when he (Dr. Dillard) dismissed me from the hospital after five days . . . he said, ‘Well, the x-rays shows that there is nothing new that has happened . . . go ahead as you were.’ ” On cross-examination, the question by defendants’ counsel, “do you feel that you had any injury at all, as a result of (the second) accident,” evoked this bit of hearsay, “the doctor said there was nothing new”; and when confronted with the query, “will you represent to the jury . . . that everything that is the matter with you now, . . . was the result of the taxicab hitting you (the first accident), and was in no way connected with the October 3rd (second) accident,” plaintiff responded, “that is true.” Regardless of whether the quoted hearsay and conclusion testimony might have been excluded on timely and appropriate objections or motions to strike, its probative worth and effect were for the jury since it was received without such objection or motion. Appelhans v. Goldman, Mo., 349 S.W.2d 204, 207(5, 6); Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 753, and cases collected in footnote 13; Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(1) ; Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302(9).

We find the statement in defendants’ ■original brief that “the plaintiff was injured (if he was injured at all) as a result of the second accident”; and, taking the record .as a whole, it appears that defendants’ counsel assumed the calculated trial risk of boldly (and, we may add, capably) presenting the case to the jury on that theory. But, if the evidence would have permitted a finding for defendants on that theory, certainly it did not compel any such finding. On the contrary, it is clear that, from the evidence heretofore reviewed, the jury reasonably could have found not only that plaintiff had sustained personal injuries in and as a result of the first accident but also (more importantly insofar as the point under discussion is concerned) that, when the second accident occurred, plaintiff had neither recovered fully nor attained the maximum degree of ultimate recovery from injuries sustained in the first accident, and that a substantial portion of plaintiff’s disability and damage subsequent to the date of the second accident would have been sustained even if that accident had not occurred.

Of course, this is not a case in which instant defendants, as the tort-feas-ors in the first accident, may be held for injuries sustained by plaintiff in the second accident on the theory that such accident occurred by reason of a weakened member or impaired physical condition resulting from the first accident. Contrast Creech v. Riss & Co., Mo., 285 S.W.2d 554, 560-561; Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, 900. But, although not liable for loss resulting from an intervening cause or not shown to be a proximate consequence of his wrong, a tort-feasor is liable to an injured person for all natural and proximate consequences of his wrongful act or omission [Creech v. Riss & Co., supra, 285 S.W.2d loe. cit. 561 (4, 5)]; and, in practical and logical application of this broad underlying principle, it would seem to be plain beyond reasonable room for argument that instant defendants would remain liable for, and properly might be charged with, such disability and damage subsequent to the date of the second accident as plaintiff would have sustained anyway even if the second accident had not occurred.

The general rule is that, where a plaintiff may have suffered disability and damage from two different causes, it is peculiarly within the province of the jury to apportion the disability and damage to the respective causes. Belisle v. Wilson, Mo., 313 S.W.2d 11, 18; Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 794(8); Mathew v. Wabash Ry. Co., 115 Mo.App. 468, 474, 78 S.W. 271, 272, 81 S.W. 646. So, the jury in the instant case was charged with the inescapable duty of determining what portion (if any) of plaintiff’s alleged disability and damage subsequent to the date of the second accident was the result of, and thus allocable to, the first accident for which defendants were liable, and what portion thereof was the result of, and thus allocable to, the second accident for which they were not liable. Delicate and difficult as that determination obviously was, the jury needed and was entitled to have all available competent evidence which would shed light upon this vexing problem, including evidence concerning the second accident and plaintiff’s condition thereafter. Papic v. Freund, Mo.App., 181 S.W. 1161, 1163-1164; Powers v. Kansas City, 224 Mo. App. 70, 80-81(4), 18 S.W.2d 545, 551(4, 7) ; Croak v. Croak, Mo.App., 33 S.W.2d 998, 1001 (5). See again Long v. St. Louis Publie Service Co., supra, 288 S.W.2d loc. cit. 424 — 427. We hasten to add that, since the second accident was caused by .an external force wholly unrelated to plaintiff or his physical condition, the jury should have been instructed, substantially as it was by defendants’ given instruction 5, that “the burden is upon plaintiff to prove by the preponderance or greater weight of the credible evidence that his injuries, if any, were sustained as a result of the accident of August 21, 1959, and you may consider only such injury and damage, if any, as naturally resulted to plaintiff from the collision of August 21, 1959, and you may not consider any additional injuries, damages, or aggravation of existing injuries, if any, which plaintiff may have sustained as a result of an accident or collision, if any, subsequent to the collision (of) August 21, 1959.”

Absent any evidence from which it reasonably might have been found that plaintiff’s hospitalization and medical treatment immediately following the second accident were the natural and proximate consequences of the first accident, plaintiff should not have been permitted to show the amounts of the additional hospital and medical expenses then incurred. Also, we have not overlooked the fact that, when defendants’ counsel belatedly interposed their initial objection “to any evidence as to what happened following the second collision” after a series of eight questions already had been asked and answered in this, evidential area, plaintiff’s counsel interjected the strange and self-contradictory comment that “the medical testimony will be that ... all of this was from the first injury and it was simply an aggravation of the first injury.” However, we also have in mind that the court subsequently gave the above-quoted instruction 5.

It has long been the rule that, save in exceptional circumstances, it is sufficient to give an instruction withdrawing or directing the jury to disregard evidence improperly admitted, the presumption being that the jury followed the court’s. direction; and some of the cases suggest that this rule is particularly applicable where (as in the instant case) there has. been no motion for a mistrial. Although instant defendants’ instruction 5 was not explicitly a. withdrawal instruction, it served that purpose and function. Cf. State ex rel. State Highway Commission v. Young, 324 Mo. 277, 287(8), 23 S.W.2d 130, 134(7); Gold v. S. Pian Time Payment Jewelry Co., 165 Mo.App. 154, 164(5), 145 S.W. 1174, 1177(3). Furthermore, our Missouri cases demonstrate that error in the admission of evidence pertaining to damages usually is regarded as cured or as not prejudicial, where the court’s instructions on the measure of damages are proper and exclude the items on which evidence has been admitted improperly. With no appellate attack leveled at instant plaintiff’s instruction 2 on the measure of damages, with the above-quoted defendants’ instruction 5 having been given, and with most of the evidence pertaining to the second accident and plaintiff’s subsequent condition properly in the record anyway, meticulous examination of the transcript before us impels the considered conclusion that there are no such “exceptional circumstances” in this case as would take it beyond the control of the general principles hereinbefore discussed and that, for improper admission of relatively minor and unimportant fragments of evidence, we may not find, as is prerequisite to our reversal of the judgment, that “error was committed by the trial court . . . materially affecting the merits of the action.” Rule 83.13(b), V.A.M.R.; V.A.M.S. § 512.-160(2).

We turn to defendants’ contention that the verdict was excessive. Although an appellate court properly may determine, as a matter of law, whether the verdict under review is in excess of the maximum amount which the evidence in the case would support [Sanders v. Illinois Cent. R. Co., 364 Mo. 1010, 1018, 1019, 270 S.W.2d 731, 737(5), 738(8); Fann v. Farmer, Mo.App., 289 S.W.2d 144, 150 (14)], the assessment of damages is peculiarly and primarily the function of the jury, whose duty it is to award such sum as reasonably will compensate plaintiff [Breland v. Gulf, Mobile & Ohio R. Co., Mo., 325 S.W.2d 9, 15(5); Conley v. Ber-berich, Mo.App., 300 S.W.2d 844, 850(12)] ; and, the appellate power to interfere with and reduce a verdict is exercised with caution [Silsby v. Hinchey, Mo.App., 107 S.W. 2d 812, 819(22); Stofer v. Kansas City Public Service Co., 226 Mo.App. 376, 388, 41 S.W.2d 614, 620(11)] and only where the amount of the verdict is manifestly unjust. Breland, supra, 325 S.W.2d loe. cit. 16. In determining whether a verdict is excessive, we do not weigh the evidence [Grimm v. Gargis, Mo., 303 S.W.2d 43, 52-53(16), 74 A.L.R.2d 599; Pierce v. New York Cent. R. Co., Mo., 257 S.W.2d 84, 90(11)] but consider it in the light most favorable to plaintiff and the verdict, disregarding defendants’ contradictory or unfavorable evidence. Morgan v. Thompson, Mo., 325 S.W.2d 794, 798(3); Riggs v. Met-calf, Mo., 315 S.W.2d 791, 796(6) ; Lange v. St. Louis Public Service Co., 361 Mo. 74, 233 S.W.2d 641, 642(3).

Obviously, the maximum award permissible under the evidence in a given case is not susceptible of determination by precise formula or with mathematical nicety; and, since no two cases are exactly alike, each must be ruled on its own particular facts. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 670; Carnes v. Kansas City Southern Ry. Co., Mo., 328 S.W. 2d 615, 623. “Consideration is given to the nature and extent of the injuries and disabilities, diminished earning capacity, changing economic factors and the compensation awarded and approved in cases of similar or fairly comparable injuries” [Rodefeld v. St. Louis Public Service Co., Mo., 275 S.W.2d 256, 262(11); Fann, supra, 289 S.W.2d loc. cit. 150(16)]; and due regard is accorded to the significant decline in the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries, to the fact that the jury and the trial court had adequate opportunity to make a personal ap-praisement of plaintiff’s true condition and thus were in better position than the appellate court to measure an award of reasonable compensation, and to approval of the verdict by the trial court upon motion for new trial. Hunter v. St. Louis Southwestern Ry. Co., Mo., 315 S.W.2d 689, 697(10); Kiger v. Terminal R. Ass’n of St. Louis, Mo., 311 S.W.2d 5, 15(19); Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127(6).

With all of these important considerations in mind, we have read and reread the transcript and have sifted and resifted the facts, hereinbefore reported in inordinate detail. Conceding that the jury was generous in its award, we may not, for that reason alone, interfere with the verdict. Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102, 106(8); Arl v. St. Louis Public Service Co., Mo. App., 243 S.W.2d 797, 800(6). With plaintiff’s evidence sufficient to have permitted a. finding that he suffered a substantial loss of income by reason of injuries sustained in the first accident, we are unable to sa.y that the verdict was manifestly excessive. Numerous cases supporting, and we think compelling, this conclusion are listed marginally. Without further prolonging this opinion by detailed discussion of the three cases upon which instant defendants primarily rest their claim of excessiveness, it will suffice to suggest with respect to two of those cases [Ulmer v. Farnham, Mo. App., 28 S.W.2d 113 (1930), and Brooks v. McCray, Mo.App., 145 S.W.2d 985 (1940)], as did the St. Louis Court of Appeals in Crosby v. St. Louis County Cab Co., Mo. App., 320 S.W.2d 944, 950, that “(t)he value of the dollar has decreased materially since those cases were decided and they are of little help today for purpose of comparison,” and to observe with respect to all three cases that the injuries and damages which the jury reasonably might have found instant plaintiff to have sustained were, in our judgment, more serious than in those cases.

The judgment is affirmed.

RUARK, P. J., concurs.

McDOWELL, J., dissents.

      . In Powers v. Kansas City, 224 Mo.App. 70, 18 S.W.2d 545. and in Croak v. Croak, Mo.App., 33 S.W.2d 998, tke first accident had resulted in a weakened leg which thereafter had caused plaintiff to fall and sustain further injury; and, in each case, it was held that the second accident (a fall) had been the intervening and efficient cause of a new injury, which could not have been a natural and proximate consequence of the first accident. On this point, both cases were disapproved in Creech v. Riss & Co., Mo., 285 S.W.2d 554, 561, and in Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, 900, where, in each instance, the Supreme Court held that the jury reasonably could have found that the second accident and attendant injuries were natural and proximate consequences of the first accident. But, we do not view those holdings as in any wise assailing the logic or weakening the authority of Powers and Croak, supra, on the point under discussion here.

      .E. g., City of Gallatin v. Murphy, Mo. App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo. App., 119 S.W.2d 437; Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 1055.

      . Evans v. Missouri Pac. R. Co., 342 Mo. 420, 426(4), 116 S.W.2d 8, 10(4, 5) ; Stith v. J. J. Newberry Co., 336 Mo. 467, 487(10), 79 S.W.2d 447, 456-457(22); Grott v. Johnson, Stephens & Shinkle Shoe Co., Mo., 2 S.W.2d 785, 787-788(1, 2); Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 635, 93 S.W. 951, 960 (6), 7 L.R.A.(N.S.) 293; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 375, 188 S.W.2d 538, 546(12, 13); Hanson v. City Light & Traction Co., 238 Mo.App. 182, 199(12), 178 S.W.2d 804, 812(12); Karst v. Chicago Fraternal Life Ass’n., Mo.App., 40 S.W.2d 732, 735-736(3, 4), certiorari denied 284 U.S. 664, 52 S.Ot. 40, 76 L.Ed. 562; McCarter v. Burger, Mo.App., 6 S.W.2d 979, 981(4).

      . Moses v. Kansas City Public Service Co., supra, 239 Mo.App. loc. cit. 376, 188 S.W. 2d loc. cit. 546-547; Hanson v. City Light & Traction Co., supra, 238 Mo.App. loc. cit. 200, 178 S.W.2d loc. cit. 812. See also Stith v. J. J. Newberry Co., supra, 336 Mo. loc. cit. 487, 79 S.W.2d loe. cit. 457 ; 5A C.J.S. Appeal and Error § 1737b, loc. cit. 1053. Contrast City of Gallatin v. Murphy, supra, 217 SW.2d loe. eit. 408, and National Cash Register Co. v. Kay, supra, 119 S.W.2d loe. cit. 439, where motions for mistrial were made and denied.

      . Hamilton v. Kansas City Rys. Co., Mo. App., 239 S.W. 1G4, 165 (4); Kolkmeyer v. Chicago & A. R. Co., 192 Mo.App. 188, 198, 182 S.W. 794, 798(8). Consult also Heppner v. Atchison, T. & S. F. Ry. Co., Mo., 297 S.W.2d 497, 508(14); Funke v. St. Louis-San Francisco Ry. Co., 225 Mo.App. 347, 355, 35 S.W.2d 977, 981(7); Shannon v. People’s Motorbus Co., Mo. App., 20 S.W.2d 580, 582(3).

      . Hampton v. Rautenstraueh, Mo., 338 S.W. 2d 105, 109; Daniels v. Banning, Mo., 329 S.W.23 647, 654-655; Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, 512. See also Howerton v. Railway Express Agency, 361 Mo. 564, 235 SW.2d 250, 254.

      . McSkimming v. St. Louis Public Service Co., Mo.App., 257 S.W.2d 176, 180 (6); Salzwedel v. Vassil, Mo.App., 351 SW.2d 829, 838(8); Daniels v. Banning, supra, 329 S.W.2d loc. cit. 654-655; Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102; Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679, 685(9); Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 354(13); Long v. St. Louis Public Service Co., Mo.App., 288 S.W.2d 417; Arl v. St. Louis Public Service Co., Mo.App., 243 S.W.2d 797; Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999, 1006-1007; Harvey v. Gardner, 359 Mo. 730, 223 SW.2d 428, 433(11).

      .McBride v. Clarida, Mo.App., 254 S.W. 2d 36; Brooks v. McCray, Mo.App., 145 S.W.2d 985; Ulmer v. Earnham, Mo.App., 28 S.W.2d 113.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. Gerald WARNER and Lorene Warner, Defendants-Respondents.
    No. 8062.
    SDi'ingfield Court of Appeals. Missouri.
    Oct. 10, 1962.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for relator-appellant.
    Almon H. Maus, Monett, for defendants-respondents.
   STONE, Judge.

In this proceeding by the Missouri State Highway Commission (hereinafter referred to as the Commission) to condemn additional right of way for Route HH in Barry County, the commissioners awarded no damages to defendants, Gerald Warner and Lorene Warner, for appropriation of the right of way through their 160-acre farm; but, upon trial of their exceptions in circuit court, defendants obtained a jury verdict for $2,500. From the judgment entered thereon, the Commission has perfected this appeal.

Route HH follows the course of a previously-existing “state-maintained” road and runs in a general easterly-and-westerly direction from Highway 37 for a distance of 5.389 miles to the west. Defendants’ farm, on which they have resided since 1940, is comprised of two rectangular 80-acre tracts, one of which lies lengthwise east-and-west on the south side of Route HH with a frontage of one-half mile on that road, and the other of which lies north-and-south on the north side of Route HH with a frontage of one-quarter mile on that road. Defendants’ five-room, modern flagstone home with two enclosed porches, their 40' x 58' barn, and all of their outbuildings (including a two-car garage, elevated milking parlor, chicken house, well house and machine shed) are on the south side of the road. In this proceeding, the right of way of Route HH was widened from 30 feet to a minimum of 70 feet and a maximum of 90 feet. On the north side of the old right of way, a strip only 10 feet in width was taken; but, on the south side, the appropriated strip (hereinafter referred to as the south strip) was 30 feet in width for three-eighths mile and 40 feet in width for one-eighth mile in front of the east end of defendants’ 80-acre tract on that side of the road. The total area taken from defendants was computed at 2.052 acres. The segment of road designated as Route HH, which has been widened and improved as a result of this proceeding, terminates at the west line of defendants’ farm.

Defendants’ primary use of their land is as a dairy farm, although they also “feed out” about 200 hogs each year. With the exception of 6 acres in timber (of which 4 acres are just west of the house and 2 acres are “back on the other end”), their farm is in permanent pasture. They usually raise all of the hay needed for their herd of about 48 cows and heifers and also have some hay for sale. The soil is described as loam, and the contour of the land is said to be “slightly rolling.” The field east of defendants’ home and on the south side of Route HH gently slopes and drains from the east and west sides of the field into a north-and-south depression or draw near the center of the field which, in turn, drains to the north and thus toward Route HH. Prior to the appropriation, defendants had constructed an east-and-west “rock dam” or “fill” across this draw just south of the south right-of-way line of Route HH. Witnesses estimated its height in the bottom of the draw at 3 to 4 feet and its length, east and west, at “over 100 feet” or “175 or possibly 200 feet.” Whatever its dimensions may have been, “it took approximately 100 loads of rock.” The purpose of the rock fill was to slow down and back up the water draining into and running north in the draw, so that the soil would not wash and erode. Defendants’ evidence was to the effect that they “had to have it (the rock fill) there” and that it had served its intended purpose well. This rock fill was on the south strip and was removed when Route HH was widened and improved. Of the consequences of such removal, more anon.

Another item of alleged damage was the loss of a portion of the timbered tract west of defendants’ home. By amendment of the petition, shade trees in the south strip in front of the home were “reserved to the defendants and will be left in place,” but there was no such reservation with respect to trees in the south strip west of the house. The Commission’s evidence was to the effect that the appropriated trees in the south strip were few in number (“18 or 20 at the most”), that they “looked * * * more like brush or bushes than trees” and were relatively small in size (“maybe 2 inches” but certainly not “as large as 3 inches in diameter”), and that they had no value as “merchantable timber.” In sharp contrast, defendants’ evidence was to the- effect that the appropriated trees in the south strip were 117 in number, that they were not “scrub oak” but were big oak trees “from 12 to 16 inches in diameter,” and that they were valuable not only for their potential worth as “merchantable timber” but also as “a good windbreak” for defendants’ home and their cattle.

Defendants’ land was fenced on both sides of Route HH prior to the appropriation, so widening of the road required the removal and relocation of one-half mile of fence on the south side and one-quarter mile on the north side and resulted in expenses (itemized by defendants) in the aggregate sum of $397.03. Also, the south line of the south strip “went right through the middle” of “a good pond” in the timbered area west of defendants’ home, and the road improvement project drained the pond and destroyed its utility. That, by reason of appropriation of the south strip, the distance from the front of defendants’ home to the south right-of-way line of Route HH had been reduced from 60 feet to 30 feet was another factor which, so defendants’ witnesses said, adversely affected the market value of defendants’ farm.

Although counsel examined and cross-examined concerning the practical importance and the monetary impact of the foregoing factors, each witness (qualified in this testimonial area) properly was interrogated as to his opinion of the reasonable market value of defendants’ farm, considered as a whole, immediately before and immediately after the condemnation, and the jury properly was instructed that the measure of defendants’ damages was the difference in such reasonable market value. State ex rel. State Highway Com’n. v. Leftwich, Mo.App., 263 S.W.2d 742, 747(7); State ex rel. State Highway Com’n. v. Huddleston, Mo.App., 52 S.W.2d 33, 35(6). As is usually the case, the triers of the facts were offered a motley, incongruous assortment of views and values. Three witnesses for the Commission thought that the reasonable market value of defendants’ farm was higher (by $3,500, $2,000 and $2,000, respectively) after the condemnation and thus that defendants had been benefited, rathei than damaged, by the road improvement project. On the other hand, defendants’ witnesses testified that the market value of the farm was lower after the condemnation, the resulting decrease in valuation being fixed at $3,000 by defendant Gerald Warner, at $2,850 and $2,700, respectively, by two licensed real estate salesmen, and at $2,460 and $2,200, respectively, by two farmer-stockmen. So, the verdict was within the range of the opinion testimony and found adequate support in the evidence. Cf. Empire Dist. Elec. Co. v. Johnston, 241 Mo. App. 759, 268 S.W.2d 78, 83-84.

The primary point in the Commission’s brief is that “the court erred in the admission of evidence of damages arising from erosion and loss of timber,” under which it is said in subpoint A that “evidence of erosion to the land of the defendants that would result in the future was not based on facts and was mere guess and conjecture” and in subpoint B that “all of the testimony relating to the damages resulting from the loss of timber * * * was conjectural and guesswork and not based on the best evidence ascertainable.” " Many years ago our Supreme Court, in the oft-cited case of School Dist. of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 344, 249 S.W. 51, 54(7), admonished the appellant in a condemnation proceeding that, if “it desired to have the ruling of the (trial) court in regard, to the admission or rejection of (evidence) reviewed here, it should have set out the names of the witnesses, and at least the substance of the testimony improperly admitted, of which complaint is made, and giving the page of the record where found.” Certainly, V.A. M.R. Rule 83.05, subd. (a) (3), which plainly provides that “(t)he points relied on * * * shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they .are claimed to be'erroneous,” contemplates particularization in “points relied on” [Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380, 383(1); State at inf. of Dalton ex rel. Erwin v. Taylor, Mo.App., 293 S.W.2d 12, 19(5); Oertel v. John D. Streett & Co., Mo.App., 285 S.W. 2d 87, 98(8)]', and the'requirements of the rule are not satisfied by discussion and references in the “argument” [Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274(5); State ex rel. State Highway Com’n. v. Harrison, Mo.App., 311 S.W.2d 104, 108(4)], for an appellate court has no duty to seine through the entire brief in an effort to ascertain the points on which an appellant depends. Sides v. Contemporary Homes, Mo.App., 311 S.W. 2d 117, 122; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483(2).

The salutary purpose of, and the urgent need for, substantial compliance with the requirements of the rule are nowhere better illustrated than in the case at hand, where six witnesses testified concerning “damages arising from erosion” (i. e., concerning the effect of appropriation and removal of the rock fill) and five witnesses testified concerning “damages arising from loss of timber,” and where most of the testimony on those subjects was received either without any objection or over purported objections so general and so untimely as to be utterly ineffectual and meaningless. Proceeding to illustrative detail, we find that the first evidence as to the effect of removal of the rock fill was received, without objection or motion to strike, when the first witness, defendant Gerald Warner, testified that removal of the rock fill had affected defendants’ farm in that “it’s started to wash and I won’t be able to farm it,” referring to the field east of the house and south of Route HH.

Inquiry was made of the next witness, one Gibbons, as to whether de: fendants’ farm had been affected by removal of the rock fill and, zvithout objection or motion■ to strike, he answered that there had been “a bad effect; it has started eroding.” Then Gibbons, a resident of Barry County for 35 years, formerly a farmer and at the time of trial a licensed real estate salesman, was asked, “from your experience in such matters, could you say whether or not that condition will continue in the future,” and the witness answered fully, “yes, sir, it will (continue] to wash and wash clear back up in the field,” before counsel for the Commission said “I object to the question and answer, because — ” and the court responded, “over: ruled.” .Thus, this portion of the record comes to us on a naked general objection which, even if it had been timely, would have preserved nothing for appellate .review [State ex rel. State Highway Com’n. v. Cone, Mo., 338 S.W.2d 22, 26(6); Stutte v. Brodtrick, Mo., 259 S.W.2d 820, 824(3); Hoffman v. St. Louis Public Service Co., Mo'., 255 S.W.2d 736, 742(7) ], since it has long been settled that “(a) general objection, in a case where the evidence is competent for any purpose, may not be laid in the record below (to use a homely simile) as an egg to hatch later in the appellate court into precise and definite objections.” Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 342, 91 S.W. 527, 530. We have noted the Commission’s complaint, voiced for the first time in its reply brief, that the foregoing objection “was overruled by the court without permitting counsel . * * * to state the reason for his objection.” But nothing indicates that counsel in any wise then pursued his objection; and, even though the court’s ruling interrupted counsel, the fact remains that, with no suggestion that counsel did not have an opportunity to object before the answer was given, the tardy objection “to the question and answer” was untimely and (with or without a specification of reason therefor) would have been within the general rule that an objection after answer comes too late and preserves nothing for review.

Furthermore, additional testimony of the same character shortly came into the record, without objection or motion to strike, when the next witness, one Hower-ton, agreed on cross-examination that defendants’ permanent pasture had not been damaged “except the dam has been taken out and it will cause washing in his field” and, in conceding that there had been no “washing” in the field to the time of trial, thus qualified his response, “I would say there wasn’t at this time, but it will — .” The Commission’s counsel also asked witness Howerton “how much damage did you allow for the rock fill” and elicited the answer “I allowed $500 on that.” In the argument section of its brief, the Commission now complains that witness Howerton “was permitted by the court” so to testify; but, with this testimony developed on cross-examination and received without objection or motion to strike, it obviously presents nothing for appellate review. Sandler v. Schmidt, Mo., 263 S.W.2d 35, 40(9); LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 714(13) ; Reger v. Nowotny, Mo., 226, S.W.2d 596, 598(8).

This brings us to the testimony of defendants’ witness Ellis, a licensed real estate broker, concerning “damages arising from erosion^” that being the only other evidence on this subject mentioned in the argument section of the Commission’s original brief. After witness Ellis had, without objection or motion to strike, testified on direct examination that removal of the rock fill had a “bad” effect on the market value of the farm, defendants’ counsel put the question, “now that the fill * * * has been removed, what can be expected to happen there,” the Commission’s counsel interposed the prompt and timely, but gaunt and meaningless, objection “I object to the question,” and (with that overruled) Ellis stated “the water comes down and starts cutting a channel, and the first thing you know you have a big ditch.” His attention subsequently having been directed to a photographic exhibit reflecting erosion on the south side of Route HH which, although within the highway right of way, was (so defendants’ evidence ran) within two feet of the east-and-west fence along the north line of defendants’ field, Ellis was asked “can you say whether or not that can reasonably be expected to wash on back into the field there” and answered “yes, sir,” before counsel started an objection, “I object — ,” which the court interrupted with “overruled.” Thereafter practically the same question, answer, interrupted objection and ruling were repeated, as if the needle were stuck in the same groove on a broken record, before the witness added “yes, it will be expected to wash back down there, at least when it rains,” and the Commission’s counsel finally expanded his objection, “I object, your honor, because there is no evidence that he knows the nature of the soil — ,” and again was interrupted with “the objection will be overruled.’-’

The interruption of counsel while stating the grounds for an objection is not approved. But, sympathetically as our ear may be attuned to the complaint of the Commission’s counsel concerning such interruption (although that complaint is as tardy as were most of his objections), we still could not find reversible error in the overruling of the interrupted objections to the testimony of witness Ellis, even if we were to treat them as embodying the grounds now argued on appeal. In the first place, each of the interrupted objections, having been interposed after the answer had been completed, came too late and preserved nothing for review. See again the cases cited marginally in note 1. Furthermore, as defendants here insist, the Commission should not be heard to complain of the admission of the above-quoted testimony of witness Ellis where (as we have pointed out) testimony of the same tenor theretofore had been received without objection. Finally, with the rock fill having been dragged through the evidence repeatedly, with photographic exhibits of defendants’ field, the draw, and the erosion just north of the field already before the jury without objection, and with no point on appeal that the verdict was excessive, we are not persuaded that the evidence, of which the Commission here complains, materially affected the merits of the action, and thus reversal of the judgment would not be justified for error (if any) in admission of this evidence. V.A.M.R. Rule 83.13(b); V.A.M.S. § 512.160(2); Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, 72(8), affirmed 363 Mo. 751, 253 S.W.2d 785. Although not undertaking a discussion of this subpoint on its merits, we note that, in Walker v. Davis, 83 Mo.App. 374, 378(3), it was said that the trial court properly had admitted in evidence the opinion testimony of farmer witnesses as to the probable effect of overflow water on land.

The Commission is in no better position with respect to subpoint B directed to “all of the testimony relating to the damages resulting from the loss of timber.” Without descending into interminable detail, we observe that the first evidence as to the monetary damage resulting from the appropriation of timber in the south strip west of defendants’ home came into the case during cross-examination of defendants’ witness Gibbons when he said, “I went out and looked at it (the timber) and that figured $500”; that the next evidence on this subject was developed in cross-examination of defendants’ witness Howerton who stated that “I allowed $300 for the timber” and, upon inquiry by the Commission’s counsel as to how he had arrived at that figure, explained that “I just drove along and seen how many (trees) there was there, and figured out how much they was worth * * * on the value of lumber and wood and posts for sale”; and that no objection or motion to strike was interposed to any of this testimony. Certainly, the Commission may not have appellate review of this evidence. Faught v. Washam, Mo., 329 S.W.2d 588, 599(17).

With the above-quoted testimony in.the record without objection or motion to strike, the Commission has no standing to complain (as it does in the argument section of its brief) about the evidence of defendants’ rebuttal witness Coffey to the effect that, in the appropriated trees, there were “at least 15,000” board feet of lumber worth $15 per thousand and that, after the saw timber was taken out, “most any tree top would make a half a rick of (fire) wood” worth $3.50 per rick on the ground or $4 per rick stacked. See again the cases cited marginally in note 3. Furthermore, witness Coffey had bought standing timber and had operated a sawmill for more than 20 years —“all of my life” — and, even though he did not “mess with” the fire wood, in his words “I’ve cut enough (timber) that I can tell about how much is in a tree top.” He had driven along the road and had looked closely at the appropriated trees with a view to buying the timber himself. We have no doubt as to the admissibility of his opinion testimony. That (as the Commission here emphasizes) he did not make an exact count of the trees and precise measurements of each of them did not render his testimony incompetent but only went to its weight. Wetmore v. Brig Lumber Mills Co., 99 Cal. App.2d 492, 221 P.2d 963, 964(1); Hunt v. Stimson, 6 Cir., 23 F.2d 447, 452(12). See Cash v. Wysocki, Mo.App., 229 S.W. 428, 430(6).

The only other point in the Commission’s brief is that “the court erred in refusing instruction B 'submitted by the plaintiff.” With this instruction not set forth in the brief as is required by V.A. M.R. Rule 83.05(a), the point is not preserved and presented properly and, for this reason alone, might be disregarded. Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217(5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539. More importantly, the stated point does not reflect even colorable compliance with the unequivocal requirement of V.A. M.R. Rule 83.05(a) (3) that “(t)he points relied on * * * shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous.” See also Rule 83.05 (e). Our courts repeatedly have refused to review generalized complaints of this character about instructions. But from the transcript and the argument section of the brief we learn that instruction B is (as the Commission’s counsel frankly state) clearly within the category denominated as “cautionary.” As counsel also recognize, it is a long-established and frequently-invoked principle that the giving or the refusal of cautionary instructions rests largely in the discretion of the trial judge. See cases collected in 27 West’s Missouri Digest, Trial. We emphasize “largely” be cause there are many situations in which the giving of proper cautionary instructions is justified (as the court observed with respect to the record presented in Mendenhall v. Neyer, 347 Mo. 881, 887, 149 S.W.2d 366, 370), and the stated principle obviously contemplates that the giving or the refusal of cautionary instructions in each case will depend upon and reflect the exercise of a sound judicial discretion and not an arbitrary, inflexible, unyielding and unreasoning policy of either giving or refusing all such instructions in all cases. However, if we were to rule on its merits the Commission’s complaint about the refusal of instruction B, we could not say with confidence or assurance, on the record before us, that such refusal constituted a manifest abuse of sound judicial discretion.

The judgment should be and is affirmed.

RUARK, P. J., and McDOWELL, J., concur.

      . Toters v. Kansas City Public Service Co., Mo., 300 SW.2d 511, 515(3); Kleinsclimidt v. Johnson, Mo., 183 S.W.2d 82, 85(7); Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, 819-820(16); Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742, 747 (8, 9); Durbin v. Cassalo, Mo.App., 321 S.W.Sd 23, 26(4, 5); Borgaian v. Boten, Mo.App., 225 S.W.2d 360, 362(3); State ex rel. State Highway Com’n. v. Bengal, Mo.App., 124 S.W.2d 687, 689(7).

      . Faught v. Washam, Mo., 329 S.W.2d 588, 599(16); Hoffman v. St. Louis Public Service Co., Mo., 255 S.W.2d 736, 742 (7-9); Gaty v. United Rys. Co., Mo. (banc), 251 S.W. 61, 64(1); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 138(11); Taylor v. Kelder, 229 Mo.App. 1117, 1131, 88 S.W.2d 436, 444(9); Fox v. Connecticut Fire Ins. Co. of Hartford, Mo.App., 268 S.W. 393, 395(6).

      . Hanson v. Tucker, Mo., 303 S.W.2d 126, 129; Devine v. Kroger Grocery & Baking Co., supra, 162 S.W.2d loc. cit. 819-820(17); Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 416(7), 101 A.L.R. 1190; Sullivan v. Union Elec. Light & Power Co., 331 Mo. 1065, 56 S.W.2d 97, 104(17); Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.2d 50, 62(9); Gaty v. United Rys. Co., supra, 251 S.W. loc. cit. 64(2); Laughlin v. Kansas City Southern Ry. Co., 275 Mo. 459, 205 S.W. 3, 8(13); Wilson v. Murch, Mo.App., 354 S.W.2d 332, 340-341(20); Anderson v. Welty, supra, 334 S.W.2d loc. cit. 139 (12); Kelly v. Rieth, Mo.App., 168 S.W.2d 115, 118(1); State ex rel. State Highway Com’n. v. Cook, Mo.App., 161 S.W.2d 691, 693-694(4); Carroll v. Missouri Power & Light Co., 231 Mo.App. 265, 273, 96 S.W.2d 1074, 1079(12, 13); Rose v. National Lead Co., Mo.App., 94 S.W.2d 1047, 1050(4); DeMoss v. Baudo, Mo.App., 79 S.W.2d 766, 771(6).

      . Wetmore v. Brig Lumber Mills Co., 99 Cal.App.2d 492, 221 P.2d 963; J. H. Leavenworth & Son v. Hunter, 150 Miss. 245, 116 So. 593, 595(2); Bassett v. Stringer, 216 Miss. 766, 63 So.2d 234, 236(2); Hunt v. Stimson, 6 Cir., 23 F. 2d 447, 452(12, 13); Isaac v. McLean, 106 Mich. 79, 64 N.W. 2. See also Wilson v. Buchanan County, 318 Mo. 64, 298 S.W. 842; Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 403-405 (4, 5); Miller v. Great American Ins. Co., Mo.App., 61 S.W.2d 205, 206(1); Gray v. Cooper, 217 Mo.App. 592, 274 S.W. 941, 945(11); Carpenter v. Hines, Mo.App., 239 S.W. 593, 595(6); Smith v. Sickinger, Mo.App., 221 S.W. 779, 780(6); Bennett v. Chicago, R. I. & P. Ry. Co., 151 Mo.App. 293, 131 S.W. 770, 771(2); Pope v. Ramsey & Ramsey, 78 Mo.App. 157, 161-162(1); Rothwell v. Dean, 60 Mo.App. 428, 433-434.

      . Daugherty v. Maddox, 364 Mo. 240, 260 S.W.2d 732, 734(3); State ex rel. State Highway Com’n. v. Schade, Mo.App., 271 S.W.2d 196, 198(7); Palmer v. Security Ins. Co. of New Haven, Conn., Mo.App., 263 S.W.2d 210, 217(8); Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514, 521(7); Norman v. Jefferson City Coca-Cola Bottling Co., Mo.App., 211 S.W.2d 552, 557-558(4).