author: HYDE, Judge.

text:
    Jerry S. LIBRACH, Respondent, v. Orion J. LITZINGER, Appellant.
    No. 51426.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Courts Own Motion April 11, 1966.

      Robert Nagel Jones, St. Louis, Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for respondent.
    Donald J. Stohr, St. Louis County Counselor, Joseph B. Moore, Deputy County Counselor, Thomas W. Wehrle, Associate County Counselor, Lovell W. George, Clayton, for appellant.
   HYDE, Judge.

Action for damages for false imprisonment ($10,000.00 actual and $40,000.00 punitive) against the sheriff of St. Louis County, who was out of office when the case was tried. There was a directed verdict denying plaintiff’s claim against a third party for maliciously instigating the arrest and judgment for the third party became final on overruling plaintiff’s motion for new trial as to him, with no appeal from this judgment. The jury’s verdict was for the sheriff (hereinafter called defendant) but the trial court sustained plaintiff’s motion for new trial for error in giving Instruction No. 7 and defendant has appealed from the order granting a new trial.

Defendant contends that plaintiff failed to make a submissible case against him and also claims Instruction 7 was a proper instruction. Plaintiff was arrested on a warrant issued by the Magistrate Court of Phelps County, Missouri. The charge was “stealing parts, repairs and mechanic labor of the reasonable value of $153.50” because plaintiff had stopped payment on a check given for repairs on his automobile there, claiming ineffective repairs. The warrant was received in the mail by defendant a day or two before plaintiff was arrested, probably September 7 or 8, 1957. Plaintiff was arrested at his home by two of defendant’s deputies after ten o’clock, the night of September 9th, and received at the jail at 10:58 P.M. Plaintiff’s cousin, Max Librach, a lawyer, came to defendant’s office about 11:00 P.M., plaintiff’s wife having informed him of the arrest. A few minutes later the father and mother of plaintiff’s wife, owners of real estate in St. Louis County, arrived to sign a bond. Max called a magistrate of the county, Judge William H. Preiss, who set bond at $1000.00. Max then said to the deputy in charge: “Judge Preiss informed me that he is ready, willing and able to approve a bond in the sum of one thousand dollars for Jerry Librach, * * * either we come over to his home or he will come over to the courthouse. He would prefer that we come to his home because he had already put on his night clothes and was watching television.” Max said the deputy said: “ ‘Well, the man can’t be admitted to bond.’ I said, ‘Why not?’ ‘It’s after five o’clock,’ was his answer.” Max said he then got the deputy to call defendant and after talking to defendant the deputy said: “ ‘The Sheriff won’t do it.’ ” However, the deputy then let him call defendant; and Max said in this conversation he told defendant he had the necessary qualified sureties; that “ ‘I talked to Judge Preiss, who is waiting at his home for a telephone call from me, either we go over there or he will come here, * * *.’ He said, ‘The answer is no. I have a rule that no one gets out of jail after five o’clock, and that applies to you as well as anyone else.’ ” Max further testified he then said: “ T am merely asking you, Sheriff, that you admit this man to bond or provide him the opportunity to be admitted to bond.’ And he said, ‘Max, that’s my orders, that’s my ruling, and that’s it.’ And he hung up.”

Plaintiff corroborated Max to the extent that he heard his part of these telephone conversations. He was kept in jail until about 9:30 the next morning when he appeared before Judge Preiss and was released on bond. Judge Preiss said he called defendant and told him about his call from Max; but defendant said “their practice is not to release any prisoners from * * * I don’t know whether it was six p.m. until morning or whether it was five p.m.” He gave Max this message and said, “I took it for granted that he wouldn’t be released by the Sheriff’s office and I didn’t do anything further about it.” Judge Preiss further testified: “I sort of frown on working at night and day, too, in connection with the office. I didn’t want to go out to Clayton unless I had to. * * * However, I know that on some occasions, why, it has happened I come out to the office at night, but I think it was subsequent to that time. * * * I wanted to find out whether he would be released, and he (defendant) told me that their practice is, when warrants are issued outside of the county like this one was, that they do not-release them until the morning. And I just took the position that, regardless of what I would have done, that he would not have been released. However, it may be that I could have * * * should have requested him to bring the prisoner before me or come out to Clayton. But I didn’t do that.”

Defendant’s answer stated: “[N]either he, nor any of his deputies, ever refused to take a prisoner before a judge of the circuit court, or before a judge of the magistrate court of said county, upon being requested so to do, for the purpose of having the question of admissibility to bail determined, and that, in point of fact, it was standard procedure to do so without regard to the hour of the day or night where, as in the instant case, a Sheriff is not authorized by law to pass on the acceptability of a proffered bail bond.”

Defendant testified that he received the calls from Max and Judge Preiss; that Judge Preiss told him he had set a bond for plaintiff at $1000.00; that he “said to Judge Preiss over the telephone that the prisoner was there and available; if he or any other magistrate would approve a bond, I would deliver the prisoner where-ever they so designated. And there was no request made for me to deliver the prisoner anywhere;” and that he “received the second telephone call from Judge Preiss. Judge Preiss informed me that it was then after midnight, and that he was ready to retire and that he would approve the bond later on that morning.” Defendant said he told Max he could not take a bond on a warrant from another county but that “it was a matter for the magistrate or a circuit judge to approve this bond.” However, he also testified: “Q Do you remember what he said to you? A He said that he wanted to get his nephew released on bond. Q Yes; and he told you that he had arranged with a magistrate to do that; didn’t he? A Yes, sir; he told me that he had talked to Judge Preiss. Q And Judge Preiss fixed the amount of bond? A That’s what Max Librach said. Q Yes, I know. And that he had the persons there to sign the bond. A Yes, sir. * * * Q What did you say to him? Just tell us what you said to him. A I said to Max Librach that the Sheriff was not permitted to take a fugitive bond. (Defendant meant by “fugitive bond” a bond on a warrant from another county.) * * * Q Mr. Litzinger, did you have deputies available at all hours of the night and the day just for such things as making bonds late at night? A We always had at least one man. I, myself, was usually available. Q Well, I understand your answer then is yes? A Yes. Q The hour of the night had nothing to do with it. You had men available to make bonds at any hour of the night. * * * To produce the arrested persons and permit them to make bond, for the purpose of making bond. That is right, isn’t it? * * * A Not any hour. But within a reasonable time, I would have to say yes. If the men were out on something else, maybe a half-hour or so until they get back to the office, or something of that sort.” Parenthetical insertions ours.

It appears from an offer of proof that defendant’s five o’clock rule applied to bonds the sheriff could approve (see Criminal Rule 32.03) because the recorder’s office would be closed and “it would be impossible for our office to check through the recorder’s office whether or not that party was a valid owner of a parcel of real estate that they claimed or were using as collateral for a bond.” Although Max was trying to get defendant to take plaintiff before Judge Preiss to make bond, defendant apparently was refusing for the reason that he as sheriff could not take the bond because the warrant was from another county. It does not appear that defendant claimed to have given Max any other reason.

Defendant argues that plaintiff did not make a submissible case because defendant did not have authority to admit plaintiff to bail under Criminal Rule 21.13. This is immaterial because a reasonable view of the evidence is that Max had arranged for a magistrate and was not asking defendant to do so. Likewise defendant’s claim that plaintiff’s evidence did not show a magistrate was available is without merit because a reasonable view of the evidence is that Max had arranged for a magistrate who would come to the court house to take bail. It is true that Judge Preiss was not anxious to do so at that hour but a reasonable view of the evidence is that he was willing to do so. These facts are completely different from those in the cases cited: Harbison v. Chicago, R. I. & P. Ry. Co., 327 Mo. 440, 37 S.W.2d 609, 79 A.L.R. 1; Teel v. May Department Stores Co., 348 Mo. 696, 155 S.W.2d 74, 79 A.L.R. 1; Mullins v. Sanders, 189 Va. 624, 54 S.E.2d 116; Rounds v. Bucher and Commercial Insurance Company, 137 Mont. 39, 349 P.2d 1026, 98 A.L.R.2d 962. Criminal Rule 21.11 requires persons arrested to be brought before a judge or magistrate as soon as practicable. “The circumstances determine what is a reasonable time. The question of unreasonable delay is generally for the jury, at least if the facts are disputed.” 5 Am.Jur.2d 763, Arrest, Sec. 77; see also 35 C.J.S. False Imprisonment § 33, p. 680; A.L.I. Restatement of Torts 2d, Sec. 136, comment e. We hold plaintiff made a case for the jury.

Plaintiff’s motion for new trial was sustained on three grounds concerning Instruction No-. 7: (1) that it was wholly incompatible with and contrary to defendant’s theory of defense stated in defendant’s answer, namely: “[I]t was standard procedure to do so (present a prisoner before one authorized to grant bail) without regard to the hour of the day or night where, as in the instant case, a sheriff is not authorized by law to pass on the acceptability of a proffered bail bond;” (2) that it unduly commented on the evidence and was argumentative; (3) that it submitted exactly the contrary hypothesis to defendant’s testimony “that he had prepared for just such a contingency by having sufficient deputies to give persons arrested opportunities to make bail bond at any hour, day or night” and submitting “that it was not practicable to give plaintiff the opportunity when he sought it, despite the fact that the pleading upon which he defended this case claimed he was in a position always to give such an opportunity day or night, and his deputies were ordered and directed to do so.”

Instruction No. 7 was as follows: “The Court instructs the jury that if you find and believe from the evidence that after plaintiff came into the custody of defendant, Orion J. Litzinger, at or about 11:10 P.M. on September 9, 1957, and plaintiff requested to be taken before a judge or magistrate for an opportunity to be admitted to bail, if you so find, and if you further find and believe from the evidence that defendant, Orion J. Litzinger, did take plaintiff before a judge or magistrate as soon as was practicable under the circumstances then and there existing, if you so find, then your verdict should be in favor of defendant, Orion J. Litzinger, and against plaintiff.

“In determining whether or not defendant Orion J. Litzinger as requested by plaintiff took plaintiff before a judge or magistrate for the opportunity to be admitted to bail, as soon as practicable, under the circumstances then and there existing, you may consider the hour of night or day and the proximity and/or the availability of a judge or a magistrate.”

Our view is that the order of the court granting a new trial must be sustained on the first and third grounds because the second paragraph of Instruction No. 7 submitted an issue that was taken out of the case by defendant’s answer and testimony that the hour of night or day did not prevent production of plaintiff before a magistrate. Not only was it defendant’s pleading and testimony that he was prepared to do so but his testimony likewise showed that he received a telephone call from Judge Preiss indicating his availability. In the Montana case cited by defendant, Rounds v. Bucher, 349 P.2d l. c. 1028, the court said: “It is incumbent upon the plaintiff, in a suit for false imprisonment, to prove an unnecessary delay.” The court further said: “We deem it essential that the plaintiff, in order to make a prima facie case for the jury, prove that a magistrate was available on the particular day when the false imprisonment allegedly occurred.” It is to he noted that the issue in that case was whether the magistrate was available between 9:00 A.M. and 11:00 A.M. on the date involved and the plaintiff had no proof at all on that issue. In this case, plaintiff’s evidence was sufficient to show a magistrate was available and defendant’s answer and testimony was that the hour of night was not the reason for failing to take plaintiff before the magistrate.

Since this case may be tried again, we state that what we have said does not mean that we consider plaintiff’s Instruction No. 1 sufficient. Defendant’s claim was that Judge Preiss refused to act that night, as did the magistrate in the Virginia case cited, 54 S.E.2d 1. c. 120; while plaintiff’s claim was that Judge Preiss was ready and willing to act but defendant refused to bring plaintiff before Judge Preiss that night, although defendant stated he had the deputies necessary and it was his policy to do so. The real fact issue for the jury is which claim is true. We also again point out that the meaningless symbol “and/or” should not be used in an instruction; see Russell v. Empire Storage & Ice Co., 332 Mo. 707, 59 S.W.2d 1061, 1069; see also State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, 1180; City of Washington v. Washington Oil Co., 346 Mo. 1183, 145 S.W.2d 366; Longacre v, Knowles, Mo.Sup., 333 S.W.2d 67.

The order granting a new trial is affirmed and the cause remanded.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner, WELBORN, Commissioner.

license: Public Domain

text:
    Raymond HILL, Respondent, v. Wayne HILL, Appellant.
    No. 51541.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 11, 1966.
    John W. Reid, II, of Schnapp, Cooper, Graham & Reid, Fredericktown, for plaintiff-respondent.
    Roberts & Roberts, by Raymond R. Roberts, Farmington, for defendant-appellant.
   HOUSER, Commissioner,

Raymond Hill, passenger, sued his brother Wayne Hill, owner and driver, for personal injuries sustained when Raymond fell out of Wayne’s automobile as it was traveling on Weeks Avenue in St. Louis County. Plaintiff prayed for $24,500, Following a jury verdict for defendant the trial judge sustained plaintiff’s motion for a new trial on four grounds, one of which was that the verdict was against the weight of the evidence. Defendant has appealed.

On this appeal defendant raises only one point: error in granting a new trial because plaintiff failed as a matter of law to establish a submissible case of negligence; that plaintiff failed to prove specific negligence and that the res ipsa loqui-tur doctrine is not applicable because plaintiff submitted the case to the jury on specific negligence.

Plaintiff’s petition apparently undertakes to allege a res ipsa loquitur situation: that the automobile was being solely operated by and under the exclusive control of defendant and that defendant negligently caused, allowed and permitted the right door of the automobile to open and plaintiff to be thrown from the automobile on account of the door opening and the automobile to run over plaintiff’s right wrist. Defendant filed a general denial.

Plaintiff testified as follows: Plaintiff and defendant entered the automobile at the home of their brother Ivan and had driven north on Weeks Street (a dirt street) about 100 feet when the accident happened. There were several holes in the surface of the street. They were visible; “you could see ’em.” These holes were “very deep” and as wide as the tires on a dual-wheeled truck. The holes had been “wallered out” by traffic. Defendant had been over this street, but not often: every two or three months. Plaintiff had driven over this road previously. He knew when he started over the street as a passenger in his brother’s car that there were “chuck holes” in the street and that he would “have to go over that road.” The previous night he had driven his new car over the street and when the front wheels came to the holes his bumper hit the ground. On the occasion in question at about 3 o’clock on a bright, dry, sunshiny afternoon defendant’s automobile, traveling approximately 10-15 m. p. h., hit these holes. First it hit a hole that threw the car to the left; “it just flopped the body of the car.” Then the car came into another hole which threw the car back to the right, throwing plaintiff into the right front door. The door came open. Plaintiff grabbed the door, defendant applied the brakes, which made it more difficult for plaintiff to hold himself and he fell out of the car into the street, his hand went under the car, and the back wheel ran over his hand, inflicting serious injuries. Plaintiff securely closed the door — -pulled the door shut — when he entered the automobile. Neither plaintiff nor defendant heard the door rattle from the time they started until the door came open.

Defendant testified that he had traveled over this road; that there were holes in it which “you could see” and that he knew the condition of the road; that they were “beat out holes” in the unpaved road, made by traffic; that the holes were “pretty good sized, say six inches deep.” Defendant conceded that he “hit” two or three holes; that when he hit these holes the car would “spring one way then the other”; that the car first went to the left, and then did a “flip-flop” back to the right; “quick like naturally it would be.” Defendant was not thrown first to the left and then to the right because he was braced by the steering wheel. He stated that plaintiff went to the left and then to the right “to a certain extent”; that the door came open and Raymond fell out. The door had never previously come open in defendant’s experience. Defendant introduced the testimony of two mechanics, body men, who testified that they had examined the right front door of defendant’s automobile, and that it was in perfect condition; that the handles, lock, striker plate, etc. were in good condition and worked properly. They took the car out on road tests in which they put the car through twists and turns on rough roads. There was no indication that the door would open except by releasing the door handle. One of them gave an expert opinion that “hitting the holes” as plaintiff described could not cause the door to come open; that if a car gets in such a twist that a door flies open it springs the door so that it will not shut or lock, but this door was not sprung; it “shut good.”

Although plaintiff had attempted to plead a res ipsa loquitur situation he did not submit his case on that theory, but on specific negligence. His verdict-directing instruction hypothesized his status as a passenger in defendant’s automobile, the several large “chug holes” in the roadway, defendant driving the automobile into holes on the highway, the right door flying open, plaintiff being thrown from the automobile, that defendant negligently “failed to exercise the highest degree of care to keep a careful and continuous lookout ahead for said holes in the roadway,” and that this negligence directly caused the right front door to fly open and plaintiff to be thrown from the automobile.

Defendant would have us reinstate the verdict for defendant on the ground that plaintiff failed as a matter of law to make a submissible case and therefore any trial errors are harmless and the verdict must stand. Defendant concedes that if plaintiff made a submissible case the action of the trial court in granting a new trial on the ground that the verdict is against the weight of the evidence must be sustained regardless of the merits of the other three grounds stated in the trial court’s order.

We are of the opinion that under the facts in evidence plaintiff made a sub-missible case of specific negligence on either of two grounds: that, knowing that the path in front of his automobile was dangerous by reason of holes in the roadway, he negligently and carelessly failed to drive his automobile so as to avoid the holes and drove his automobile into said holes, and that he .negligently and carelessly drove over a roadway containing large holes at a speed that was excessive under the circumstances.

On remand plaintiff may submit either or both of these grounds of specific negligence, if the evidence on retrial is the same. If he proves specific negligence he may not, of course, rely upon the res ipsa loquitur doctrine. McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W. 2d 361; Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749. (On liability under the res ipsa loquitur doctrine where the door of a privately owned automobile suddenly comes open, resulting in injury to a guest, Adams v. Le Bow, 236 Mo.App. 899, 160 S.W.2d 826, and Powers v. Seibert, Mo.App., 297 S.W.2d 627, should be consulted.)

The order is affirmed and the case is remanded ior a new trial.

HIGGINS, C, concurs.

WELBORN, C., concurs in result.

PER CURIAM.

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

HENLEY and DONNELLY, JJ., concur.

HYDE, J., concurs in result.

HOLMAN, P. J.,’concurs in result and adopts Memorandum of WELBORN, C., as his opinion concurring in result.

WELBORN, Commissioner.

I concur in result. I believe that a sub-missible case was made of negligently driving over a roadway containing large holes at a speed that was excessive under the circumstances. I find no basis for the conclusion that a submissible case was made on the grounds that defendant failed to drive his automobile so as to avoid the holes and drove his automobile into said holes. I find nothing in the facts as stated to support the conclusion that there was an available route whereby the holes could have been avoided.

In my opinion this is a case involving specific negligence although only general negligence is pleaded. I see no reason to discuss the possibility of application of the res ipsa loquitur doctrine.


author: FINCH, Judge.

text:
    Ruth N. BOND, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., Defendant-Appellant.
    No. 51233.
    Supreme Court of Missouri, Division No. 2.
    April 11, 1966.

      Robert G. Oberlander and James B. Lowe, Kansas City, Kuraner, Oberlander, Lamkin, Dingman & O’Laughlin, Kansas City, of counsel, for respondent.
    John B. Ewing, Jr., and John M. Gibson, Kansas City, Brenner, Ewing, Lockwood & O’Neal, Kansas City, of counsel, for appellant.
   FINCH, Judge.

Plaintiff obtained a verdict for $32,000 for injuries suffered in a fall when she slipped on ice and snow while alighting from defendant’s bus. She filed a remit-titur of $12,000 and defendant appealed from the resulting judgment for $20,000.

In addition to various trial errors asserted, defendant alleges that plaintiff, under the evidence, was guilty of contributory negligence as a matter of law and that its motion for a directed verdict should have been sustained. The consideration of the latter question requires a review of the evidence pertaining to liability. Defendant offered no evidence in this case. Plaintiff’s evidence with reference to how the fall occurred consisted entirely of her own testimony and was as follows:

On the morning of December 16, 1961, plaintiff, enroute to her job at the Home for the Jewish Aged, was aboard defendant’s bus as it approached the intersection of Troost and 78th Street in Kansas City. This was at approximately 7:00 a. m. It was daylight, the weather was quite cold (12-13°) and the ground was covered with three to five inches of snow. Plaintiff was riding in a seat about half way back on the left side of the bus, just opposite the rear exit door. As the bus approached the 78th Street intersection, plaintiff pulled the cord and stood up in the aisle opposite the rear exit door. Other passengers alighting at that point all went to the front door. The bus made a smooth, normal stop. Plaintiff was then facing the direction in which she would alight and she could see through the windows as the bus pulled up to stop. She observed that the sidewalk had been cleared off except for “a light skiff of snow in patches.” The rear exit door came open when the bus had stopped. Plaintiff looked at the sidewalk and saw that it was clear. She then started to alight from the bus. She took her first step down from the aisle with her left foot. Then from the center step she descended with her right foot to the bottom step of the bus. Finally, from that point she stepped with her left foot on a mound of ice and snow in the street and fell, receiving injuries which included a fractured left lateral tibia.

Plaintiff testified that she did not realize that the rear of the bus was away from the curb and did not see the ice and snow on the street until after she was in the process of taking the last step from the bus to the ground. She attempted to retract this last step but she had started down and it was too late to do so.

Actually, the rear door of the bus where plaintiff alighted was three or four feet out from the curb, whereas the front door was flush with the curb. Plaintiff so observed after she had fallen. On cross-examination plaintiff testified that after the bus had stopped and the door opened, there was nothing to obstruct her view of the condition of the street and sidewalk. This was also true as she stood on the middle and on the lower steps before she descended from the last step to the street. She testified that she did not look at the ground until after she was in the process of stepping from the bottom step to the ground itself, at which time it was too late to stop. After being asked about whether she looked and whether her view was obstructed on the various steps as she descended, her testimony was summarized in final questions and answers thus:

“Q You didn’t look when you were in the aisle, you didn’t look when you were on the center step, you didn’t look when you were on the bottom step, you didn’t look until after you had started your step down and you couldn’t stop yourself?

“A That is right, Sir.

“Q But there wasn’t anything to obstruct your view of the street?

“A No.”

Plaintiff also stated that she would have gotten off at the front door of the bus if she had looked and seen the condition existing at the rear door. She then was asked, “You just didn’t look?” and she answered, “I just didn’t look.”

Apparently no one saw plaintiff fall. After she was on the ground she looked to where passengers were alighting from the front end of the bus and none were looking in her direction. The bus closed its doors and drove off. Plaintiff called out to the others but they did not hear. She crawled to the curb and called again and they then heard her and came to her assistance.

Plaintiff testified that she observed the area after she was standing on the sidewalk by the substation Post Office just opposite where she fell and “it was all rough mounds and had car tracks and truck tracks through it, had tracks real cut up there, like a big mound of snow, the one that I fell on, and the cars in passing had made deep ruts there, and of course they made the one I stepped out on and went down.” Another witness for plaintiff, Jesse Beilis, testified that after the incident he observed quite a bit of snow on the street in front of the Post Office where plaintiff’s fall occurred and that it was rough and rutty. In his opening statement, counsel for plaintiff stated that “the street out from the curb at the place where the bus stopped was covered with ridges of ice and snow. There were tracks in it, wheel tracks in the snow there where it had melted and frozen. What had caused it to melt, the weather or something, salt or whatever it was they put on the street, I don’t know and I don’t think she knows, but as I said there were ridges of ice and snow out from the curb into the street. Apparently from what the evidence will be you will see that the ridges or ruts had been made at a time and for some reason or other had thawed and then refrozen.”

Plaintiff’s theory of recovery was that defendant was negligent in stopping its bus away from the sidewalk so that plaintiff was invited, directed and forced to alight from the bus onto the street where there was an uneven, raised, slick surface, and that defendant was negligent in failing to warn plaintiff of the unsafe and dangerous conditions where she was invited to alight. Defendant in its brief does not contend that plaintiff failed to make a submissible case on the question of defendant’s negligence. We are not here concerned with that question. We can and do assume that plaintiff had ample evidence to submit defendant’s alleged negligence to the jury. We are concerned presently only with the question of whether plaintiff was guilty of contributory negligence as a matter of law, which would bar her recovery and entitle defendant to have its motion for a directed verdict sustained.

Certain general rules must be considered. Even though a bus or streetcar company is guilty of negligence in stopping and inviting passengers to alight at a place not reasonably safe, the plaintiff is under a duty to exercise ordinary care for his own safety. This includes a duty to look and to see what is plainly visible, and such plaintiff is charged with knowledge of what he should have seen if he had looked. Each case must be considered on its own particular facts in order to determine whether, under those particular circumstances, the plaintiff was guilty of contributory negligence as a matter of law. While a plaintiff is not under a duty to look closely for danger where there is no reason for him to anticipate danger, the converse is true and if there is reason to anticipate danger, the defendant is under a duty to exercise ordinary care to look and ascertain if danger is present. In considering the question of whether plaintiff was guilty of contributory negligence as a matter of law, plaintiff is entitled to have his evidence taken as true and to have considered any evidence of defendant which supports plaintiff’s case, and plaintiff is entitled to every reasonable inference that may be drawn from the evidence. This is true even in cases such as this one where the facts are undisputed. Before a court is justified in finding a plaintiff guilty of contributory negligence as a matter of law, the facts must be such as to permit of no other reasonable conclusion.

Applying these rules, what is the result? Plaintiff was the only witness who testified as to what happened. We take her testimony as true. Summarized briefly, it was this: Plaintiff knew that the ground generally was covered with three to five inches of snow. As the bus pulled up to her stop at 78th Street, plaintiff looked out the window to ascertain whether the sidewalk was snowy or clear and observed it was clear except for patches. The bus stopped and' the rear exit door opened as plaintiff stood in the aisle facing it. The bus stopped at an angle from the curbing, with the front door flush and the rear door three to four feet from the curb. The street between the curb and the door was covered with snow and ice which was rough, rutty and slick. Plaintiff did not know that the bus door was away from the curb or that there was rough, rutty ice and snow on • the street below until she was midway in the descent from the last bus step to the street. Plaintiff had looked at the sidewalk condition again when the door opened, but she did not look to where she was alighting until after she was in the process of the last step from the bus to the ground. There were no other passengers getting off at that door and there was nothing to obstruct the view of plaintiff of the street between the bus and curbing as well as of the sidewalk. This was true when plaintiff stood in the aisle of the bus and while she was on each of the two bus steps before she started to take the final step to the ground. She specifically testified several times that she simply did not look. The street was covered between the bus and curb with rough, rutty ice and snow and plaintiff fell thereon. This rough ice and snow was visible. Plaintiff testified that as she stood on the sidewalk by the Post Office after her fall, she observed it. Plaintiff’s witness Beilis (he came from the Home for the Jewish Aged to get her after learning of her fall) also so testified. Plaintiff actually saw it when she looked as she was taking the last step. Accepting plaintiff’s evidence as true, it shows clearly that plaintiff did not look to see where she was stepping. She did not see that the rear exit door was out three or four feet from the curb and that she would step on rough, rutty ice and snow because she did not look. When she did look, it was too late to stop. There is no basis for any inference that plaintiff did look. She testified specifically to the contrary. There is no basis for any inference that she couldn’t see the street or the distance of the bus from the curb. She testified that there was nothing to obstruct her view. There is no basis for any inference that the rough ice and snow was not visible. When she was standing by the Post Office after being assisted there, she observed the area where she had fallen and it was noticeably rough with deep ruts through it. Witness Beilis, when at the same place, said it looked like ruts of snow “and you couldn’t keep from seeing it.”

These facts and circumstances compel us to the conclusion that plaintiff was riding the bus when generally prevailing weather and ground conditions were such as to put her on notice as to the need to look and exercise ordinary care for her safety. The plaintiff failed to look to determine the condition existing where she was to step as she alighted. The rough, rutty ice and snow should haye been seen by plaintiff if she had looked before she committed herself to the last step. Plaintiff did not exercise ordinary care and was guilty of contributory negligence as a matter of law. We think the facts reasonably cannot admit of any other conclusion.

We have examined all of the cases cited on this question. Those relied on by plaintiff are distinguishable. In Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, a large crowd of children was crowded about the front bus door where plaintiff was to alight. These children were getting aboard at the time she was descending. She testified that she looked but could not see the pavement on account of the crowd. The court pointed out that the presence of the group of children at that very point was assurance to plaintiff that there was a street surface where she could step and that there was nothing in the facts of that case to cause her to anticipate danger. Under those circumstances, the question of contributory negligence was for the jury. In Wilson v. Kansas City Public Service Co., Mo. App., 238 S.W.2d 73, plaintiff testified that he did look before stepping down from the streetcar and it looked safe to him. He testified that he could not see the condition within 18 inches of the car because of the overhang and could not see the place where water had run over the track and frozen. Defendant sought to impeach plaintiff by a prior deposition in which plaintiff allegedly had testified otherwise. The court held that the deposition was not completely contradictory of his direct testimony and hence it was a matter for the jury to determine. In Lewis v. Kansas City Public Service Co., Mo. App., 333 S.W.2d 526, plaintiff was alighting from a streetcar at a loop turnaround platform provided by defendant company on its own right of way. It was an asphalt platform and plaintiff had alighted there many times, knew that the platform was immediately adjacent to the turnaround, and that it was a safe place to alight. The streetcar operator failed to pull the streetcar up far enough and there was no platform in front of the exit door when plaintiff alighted. Plaintiff was standing on the first step in the well and when the door opened started to step out and was unable to stop herself when she noticed that the asphalt platform was not there. The court points out that she had no reason to anticipate danger or that there would not be a safe place to alight on the defendant company’s own platform in this turnaround loop. Under those particular circumstances, the court, giving plaintiff every favorable inference, held that she was not guilty of contributory negligence as a matter of law. Caley v. Kansas City Missouri & Kansas City Public Service Co., 226 Mo.App., 934, 48 S.W. 2d 25, involved a case where plaintiff stepped in a hole in an asphalt street when alighting from a streetcar. She testified that she looked before stepping to the ground and that she did not see any hole in the street. After she had fallen, she observed that there was a hole in the pavement in front of the car step. There was evidence that the hole was the same color as the asphalt street and it was somwhat difficult to see. The court stated that if plaintiff had looked very closely, it would have been possible to discover the defect, but that plaintiff was justified in relying on the implied assurance of the defendant company of a safe place to alight, and that while she would not be excused from not looking at all, she was not chargeable with the very close look necessary to see where, as there, she had no reason to anticipate danger. The court stated it was a close question but left the matter of contributory negligence to the jury. Other cases cited by plaintiff deal largely with principles applicable to such cases rather than being particularly close on the facts and do not require detailed analysis.

In view of our conclusion that plaintiff was guilty of contributory negligence as a matter of law, ft is unnecessary to consider the trial errors asserted by defendant.

The judgment is reversed.

All of the Judges concur.

      . Ostresh v. Illinois Terminal Railroad Co., Mo., 313 S.W.2d 19; Curtis v. Capitol Stage Lines Co., Mo.App., 27 S.W.2d 747; Wilson v. Kansas City Public Service Co., Mo.App., 238 S.W.2d 73; Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253; Caley v. Kansas City, 226 Mo.App. 934, 48 S.W.2d 25.

      . Dempsey v. Horton, 337 Mo. 379, 84 S.W. 2d 621; Curtis v. Capitol Stage Lines Co., supra; Wilson v. Kansas City Public Service Co., supra.

      . Lewis v. Kansas City Public Service Co., Mo.App., 333 S.W.2d 526; Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295.

      . Lewis v. Kansas City Public Service Co., supra; Williamson v. St. Louis Public Service Co., supra.

      . Taylor v. Riddle, Mo., 384 S.W.2d 569; Carpentier v. Middlewest Freightways, Inc., Mo., 259 S.W.2d 816; Kirks v. Waller, Mo., 341 S.W.2d 860; Fyock v. Riales, Mo.App., 251 S.W.2d 102.

      . Fierce v. Shapleigh Hardware Co., Mo. App., 14 S.W.2d 511.

      . Swain v. Anders, 349 Mo. 963, 163 S.W. 2d 1045; Lewis v. Kansas City Public Service Co., supra; Fierce v. Shapleigh Hardware Co., supra.


author: WELBORN, Commissioner.

text:
    N. E. PATON, Jr., Appellant, v. BUICK MOTOR DIVISION, GENERAL MOTORS CORPORATION, a corporation, et al., Respondents.
    No. 51244.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Rehearing Denied April 11, 1966.
    Elwyn L. Cady, Jr., Kansas City, for appellant.
    John Murphy, Paul Scott Kelly, Jr., Kansas City, Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for respondent, Buick Motor Division, General Motors Corporation.
   WELBORN, Commissioner.

N. E. Patón, Jr., brought suit against Buick Motor Division of General Motors Corporation and several individual defendants, seeking actual damages of $6,000 and punitive damages of $42,000 for alleged breach of implied warranty arising from the sale to plaintiff of a Buick automobile. On a trial without a jury, the court found for defendants and this appeal followed. We are concerned here only with the liability asserted against General Motors (referred to herein as “Buick”), no complaint being made against the judgment in favor of the individual defendants.

On or about July 1, 1959, plaintiff purchased from Don Stein Buick, Inc., of Mission, Kansas, a 1959 Buick Le Sabre 4-door hardtop sedan for approximately $4,400.00. (Delivery of the vehicle took place at Stein’s place of business in Kansas, which would make Kansas law govern the issues here presented. See Mullins v. Sam Seism Motors, Inc., Mo.App., 331 S.W.2d 185, 193[1]. However, neither party has seen fit to rely on Kansas law.) According to plaintiff, he had a date with a Stein employee a few days after the auto was delivered and she pointed out to him that the motor was missing. Plaintiff had previously observed this difficulty a few hours after the auto was delivered to him. This was the onset of a long series of complaints about the workmanship in the manufacturing, and the quality and performance of the automobile which led to the filing of this lawsuit on March 7, 1961. The complaints forming the basis of the petition were:

“That shortly after sale of the auto in question, numerous defects in the performance of said vehicle were discovered by plaintiff and disclosed to defendants, to-wit: that the electrical system constantly shorted-out; that the voltage regulator was faulty; that there was a loose control on the doors with defects in the power windows; that there was repeated failure of directional turn signals; that the dynaflow transmission functioned improperly; that there was difficulty in acceleration of the vehicle; that the front end balljoint system was defective, thus permitting a dangerous drift of the auto wheels; that there were numerous mechanical vibrations of the motor and its attachments; and that the motor stalled suddenly, unexpectedly, and without warning from time to time.”

At the trial, plaintiff, the only witness in his behalf, described his difficulties with the vehicle as follows:

“We have had considerable trouble with the electrical system in the automobile, we could not keep light bulbs in the automobile, in a good many instances they kept blowing. The voltage regulator in the automobile was never steady, it had constant fluctuations. When it did stop charging the fans and the lights and even the radio would lose volume, the lights would go down. The power windows we have had some trouble with, quite a bit, the two front windows have been broken and subsequently repaired, the back right window has never worked from the switch on the door, the front control which operates all four controls came off in my hand one day. The control on the front door itself has always been loose since the purchase of the automobile. I have had considerable trouble with the directional signals on the car, they would not stay locked down in many instances. The gasoline mileage on the car when I first got it was between seven and eight miles per gallon, the car used approximately two quarts of oil between changes which were made between approximately 1,000 and 1200 miles. The car has a constant surge and hold back in it. From the time we purchased the automobile it was noticeable in putting the automobile in traffic around the area or on the highway. It also did not have a passing gear that worked as a passing gear in a dynaflow should work in my estimation.

******

“ * * * In other words, when you put your foot down on the accelerator sometimes it would catch and sometimes it wouldn’t.

“Sometimes I was caught in the left hand lane with the passing gear unable to work and in trying to pass another automoble with another car coming at me.

* * * * * *

“The car has been sluggish. There was lean spots in the acceleration where the accelerator would go through as you pushed it down, areas where there would be actually no acceleration at all, no effect upon the movement of the automobile. It also would catch as it went down. The car wouldn’t move during some periods. When it got down to one point it would grab and go out. The front end of the automobile was extremely hard to keep in line, was extremely hard on tires.

# * * * * *

“It caused the car to drift, remain unsteady, it caused you to have a constant fight with the steering wheel of the automobile to hold it in line. There is a vibration in the automobile which has always been there regardless of slow or fast speeds. The front end of the automobile is sinking down and the back end was considerably higher than the front end. I have reference to the dash pot on the carburetor which was set so high, the car, you would have to hold down the brake to get the car idled down. There was vibration in the steering column of the automobile which you could feel in the steering column and you could also hear it rattle. We had considerable trouble with the engine just absolutely dying in the middle of the street as though somebody would turn the key off to the motor.”

At the time of the trial in September, 1964, plaintiff was still driving the auto and had driven it approximately 73,000 miles. He stated that defects of which he had complained had never been remedied. There was evidence of considerable repair and replacement work on the vehicle in an effort to satisfy plaintiff’s complaints. Much of the work was done at Buick’s expense, “under warranty.” Plaintiff produced bills for repair work on the auto done by others at his expense on such items as brakes, the starter, the electrical system, transmission, carburetor, shock absorbers and front-end suspension system, totaling, to August, 1964, some $320.00.

Defendants’ witnesses generally testified that they could not discover many of the defects about which plaintiff complained. Mark Stevermer, a training center instructor for Buick, stated that when he, plaintiff and other Buick representatives road tested the vehicle in December, 1959, plaintiff’s complaints were of hesitation on acceleration and “wander.” Stevermer testified that he and plaintiff drove the car on that occasion and that he did not observe the conditions about which plaintiff complained. Stevermer found the steering and accleration “standard” on that occasion.

In May, Stevermer took the auto and kept it for two days. He examined it at that time particularly for complaints about the handling or steering, “hesitation,” oil consumption and a rattle in a door. A nylon wedge was inserted to take care of the door rattle. The only thing which he noticed about the steering was that “if you grabbed the steering wheel, it had a little end play in it.” According to the witness, they “took that out.” A check of the power steering mechanism showed nothing wrong. A spring on the accelerator was replaced and, when hesitation was noticed on a road test, Stevermer “blew out” the muffler and found no further hesitation. He found no evidence of excessive use of oil and concluded that complaint on that score was caused by the light weight oil used. According to Stevermer, he drove with plaintiff in the car after he had checked it and plaintiff “was satisfied with all of it.” However, on the way back to the dealer, plaintiff “floor boarded it * * * to change the switch pitch on it and at the bottom of the throttle the thing was a little bit slow.”

Lowell Boyer, Buick service manager for the Kansas City zone, testified that he drove the car in December, 1959 or January, 1960, in May, 1960 and in October, 1960, and could find nothing wrong with it. In October, he took the car into a shop and put it on the “front end” machine but could find nothing wrong. Boyer stated that on a comparative basis he “would say the car was much better than the average car perhaps that I might be driving at the time.”

David Kobe, owner relations manager for Buick, testified that he drove the car in November, 1959, and “thought it was a very normal automobile.” He drove the car again later on and “couldn’t find the condition (plaintiff) was talking about.” Kobe thought “the car was very normal.”

Roger Redd, an appraiser employed by defendants to examine plaintiff’s auto, took the car on September 3, 1964, and tested it for the various defects which plaintiff had alleged. He found only that one of the power-operated windows did not work from one switch because of a broken wire and that the operation was sluggish because the motor needed a major tune-up, a normal requirement in an auto that had been driven 73,000 miles.

At the close of the evidence, the trial judge stated:

“THE COURT: Gentlemen, you have spent a couple of days on this matter. You have a case of defects in an automobile bought by an owner and layman which have not been substantiated in any way by testimony, expert testimony or any kind of testimony other than the statement of the plaintiff. On the other hand both the defendant Stein and Buick Motor Division of General Motors Corporation have produced evidence here they have taken this man’s car and his ideas and statements as to what is the matter with it and to me they made every effort to remedy such mistakes. There was no evidence there was anything the matter with the car they could find upon his statement. We all realize we have cars that don’t exactly suit us. I don’t think under the evidence and under the law [of] warranty the plaintiff is entitled to anything, a judgment for anything.”

At the outset of our consideration, we shall endeavor to delimit the issues which appear to us to be here presented and necessary for us to determine on this appeal. Appellant’s two allegations of error are: First, that the uncontroverted testimony of defendants’ witnesses established at least a slight breach of the warranty sued on and therefore the trial court should have found for plaintiff and have at least awarded nominal damages. Second: “The court erred in its view of the law since Missouri does recognize the doctrine of strict liability for breach of warranty of quality.” In support of the latter proposition, plaintiff cites Morrow v. Caloric Appliance Corp., Mo.Sup., 372 S.W.2d 41. The doctrine of strict liability eliminates the necessity of privity of contract in certain actions based upon breach of warranty. See Lauer, “Sales Warranties Under The Uniform Commercial Code;” 30 Mo.Law Rev. 259, 277-280. Defendants here do not assert absence of privity between them and plaintiff as a defense. Therefore, we need not consider appellant’s second assignment of error.

The defense here rests upon two propositions. First: “An implied warranty, if any, was disclaimed by the terms of the express warranty.” Second: “Even if there was an implied warranty, there was no breach.” Inasmuch as there is doubt that the evidence established the express warranty upon which defendants rely to exclude all implied warranties, we will consider only the second proposition, urged, in effect, in answer to plaintiff’s first contention.

In reviewing the matter on this basis, we keep in mind the function of this court. This case was tried as a jury-waived action. We review the cause “upon both the law and the evidence as in suits of an equitable nature.” However, the judgment is not to be “set aside unless clearly erroneous.” Civil Rule 73.01(d), V.A.M.R.

Although we do not find in plaintiff’s brief a clear statement of the warranty upon which he relied in this action, plaintiff apparently is standing upon an implied warranty of quality or merchantability. Plaintiff makes some reference to Buick’s advertising as the basis of the warranty involved. The casual reference to this subject is insufficient to support a conclusion that a warranty arose from Buick’s advertisements. Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 606 [1-3], 158 A.L.R. 1402.

The uncontradicted testimony to which plaintiff points as establishing a breach of an implied warranty of quality is the testimony of Buick’s witness, Stevermer, that, on his May 5, 1960 test of plaintiff’s auto, he found a “little end play” in the steering mechanism; that there was some hesitation in response to application of the throttle, and that the change of pitch in the automatic transmission operation was “a little bit slow.” However, the witness testified that the first two items were remedied with only minor changes and adjustments. He did not testify that anything was done to improve the efficiency of the transmission system. However, he described the reaction as only “a little bit slow” and subsequent checks by defendants’ witnesses revealed no difficulty in this regard.

Plaintiff also points to the numerous items that were taken care of by Buick under its warranty policy, such as replacing the fuel pump, replacing the carburetor, etc.

However, the test of breach of warranty of quality or merchantability, as applied to an automobile, is not whether a perfect machine was sold to the purchaser, but whether the vehicle was reasonably suitable for the ordinary uses for which it was manufactured. 1 Williston, Sales (1948 rev. ed.), § 243, pp. 641-642. See Mullins v. Sam Seism Motors, Inc., Mo. App., 331 S.W.2d 185; Harvey v. Buick Motor Co., Mo.App., 177 S.W. 774; Miller v. Andy Burger Motors, Inc., Mo.App., 370 S.W.2d 654.

Here, the credible evidence failed to show that plaintiff’s automobile was not reasonably suitable for ordinary use. Even considering all of plaintiff’s complaints as well-founded, his automobile was better beyond comparison than those involved in Mullins and Miller, supra. However, the trial court clearly did not consider all of plaintiff’s complaints well-founded. With this conclusion we agree. We note that, despite the complaint of the defects which plaintiff claims were never remedied, he operated the vehicle for 73,000 miles. In his effort to enlarge the expenditures which he claimed to have made at independent repair shops because of the defects, he produced a bill for tires on his brother’s auto. When challenged, plaintiff withdrew this claim. When a claim for the cost of replacing a muffler in August, 1959, was challenged as not for the Buick, plaintiff acknowledged that he did not know whether it was for the Buick or his brother’s car. Plaintiff stated: “I will claim it now. If it is a muffler used on his car, I will be glad to take it off.” Numerous other claimed expenditures were for obvious regular maintenance items and the trial court disallowed their introduction into evidence.

Discounting plaintiff’s testimony as we must because of the obvious exaggeration of the nature and seriousness of his complaints, we reach the same conclusion as the trial court that there was no breach of the warranty relied upon. See Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J. Super. 313, 126 A.2d 358, 359, 364 [7]; Fillet v. Curry, 12 A.D.2d 519, 207 N.Y.S.2d 522.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Lyle B. and Doris KAPPEL, Plaintiffs-Appellants, v. Robert A. SLICKMAN and Robert L. Newman, Defendants-Respondents.
    No. 51530.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Rehearing Denied April 11, 1966.
    Elwyn L. Cady, Jr., Kansas City, Robert G. Knapp, Mission, Kan., for appellants.
    Larry L. McMullen, Caldwell, Blackwell, Sanders & Matheny, Curtis S. Barton, Kansas City, for respondents.
   WELBORN, Commissioner.

Doris Kappel brought suit against Doctors Robert A. Slickman and Robert L. Newman for $30,000 damages for alleged injury caused by negligence of defendants in furnishing medical and surgical care, Lyle B, Kappel, husband of Doris, sued for $10,000 for medical expenses for his wife and loss of consortium, arising out of the negligent acts charged by his wife. A jury returned a verdict in favor of both defendants. After their motion for new trial had been overruled, plaintiffs appealed.

Plaintiffs’ cause of action was based upon the alleged negligent failure of defendants to administer antibiotic therapy for a postoperative infection. On July 20, 1961, defendant performed a hysterectomy on Doris Kappel at St. Mary’s Hospital in Kansas City. Seven days later, when the dressing was changed on the abdominal incision for the operation, infection was noted in the incision area. According to Mrs. Kappel, she observed three abscesses in the incision. She stated that the only treatment which was administered was cleaning the infected area with an antiseptic and application of heat. She testified that the abscesses broke approximately two hours after the dressing was changed and “all this matter ran all over the bed and me and everything, but I continued that heat pad for a week in the hospital and it still drained. They kept a bandage on it, and then after another week, the first of August, they told me I could go home. I still had the bandages on it, it was still draining, * *

Mrs. Kappel was given dressings to apply to the incision after she left the hospital on August 1. She was having abdominal pain at that time. She stated that after she went home, her “stomach kept swelling and swelling and getting larger.” She saw Doctor Newman about a week after her discharge from the hospital. He told her, “You are doing fine, you can go back to work next week.”

However, upon her return from the visit to the doctor’s office, Mrs. Kappel “kept getting worse and the pain was getting terrible, and it centered, too, up in my shoulder where I couldn’t move * ⅜ She stated that she telephoned Doctor Newman who told her to put the heat pad on her shoulder. In the next week, she became “real sick” and went to the doctor’s office. Doctor Slickman sent her right to the hospital on August 24.

Mrs. Kappel stated that, at the time of her second admission, she had pain in the region of the incision. “[Tjhere was nothing except it looked like a hole down in my incision * * She also said that she was “very ill” while in the hospital and had “terrible pain.” “It was hurting me every place.” She testified that her condition improved on antibiotic treatment. She was discharged from the hospital on September 8.

Subsequently, Mrs. Kappel consulted other physicians for what she described as “dropping” and “protruding” of her stomach. In April, 1963, she was operated on by another surgeon for incisional hernia. At the time of trial, in November, 1964, she stated that her abdomen “is just all bulged out again and my stomach has fallen and my insides, I guess, are falling out.” She planned to go to the hospital for further surgery.

Plaintiffs’ contention that Mrs. Kappel should have been administered antibiotic therapy on her first admission is based upon excerpts from the deposition of Doctor Newman, read into evidence by plaintiffs as admissions against interest. Doctor Newman stated that he prescribed Achro-mycin (V), a broad spectrum antibiotic, for Mrs. Kappel “as a protection against the spread of infection”; that because of its broad spectrum capabilities, that drug should be able to combat whatever organism was involved; that, at that time, his best judgment was that an antibiotic drug should be administered and that Achromycin(V) was the drug which he chose.

Plaintiffs’ proof of the allegation that the drug was, in fact, not administered to her, was based on Mrs. Kappel’s testimony that, during her hospitalization, she received no medication in capsules, the form in which Achromycin (V) was administered. Visitors who saw the patient while she was in the hospital, including her husband, testified that they observed no capsules given her.

Without getting into defendants’ evidence to the effect that Achromycin (V) was, in fact, administered following the discovery of the infection, we are confronted by defendants’ contention here that, regardless of plaintiffs’ allegation of error on the trial, the judgment below must be affirmed because plaintiffs’ evidence failed to make a submissible case against defendants. Their contention is based primarily upon the theory that proof of causation between the alleged omission of the defendants and Mrs. Kappel’s complaints required expert medical testimony which plaintiffs did not present.

Causation is, of course, an element of a cause of action for malpractice. Plaintiff has the burden of proving that element, along with the other necessary elements of the action. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600. However, such element need not be directly proved. The burden of proof in such regard may be sustained by circumstantial evidence. Steele v. Woods, Mo.Sup.,, 327 S.W.2d 187, 195 [5-8].

Other than the excerpts from Doctor Newman’s deposition, read into evidence on behalf of plaintiffs, no medical testimony was offered by them. Looking solely at plaintiffs’ evidence, causation would hare to be based upon the doctor’s testimony by deposition that a broad spectrum antibiotic was prescribed to prevent the spread of infection, plaintiffs’ evidence that such treatment was not administered and Mrs. Kappel’s testimony that pain in the region of the incision continued, which, together with pain in other areas, including her shoulder, caused such discomfort that she had to be rehospitalized twenty-four days after her first discharge. Plaintiffs’ evidence is silent as to the diagnosis on her second admission, Mrs. Kappel testified that, under antibiotic treatment, her condition improved. As for the external appearance of the wound at the time of the second hospitalization, we have only Mrs. Kappel’s testimony that “it looked like a hole down in my incision.” We have no doubt that this evidence was insufficient to permit the jury to infer that the second hospitalization was the result of the failure to receive antibiotic treatment on the first hospitalization.

Apparently plaintiffs’ counsel recognized the necessity for further proof of causal connection between the alleged lack of antibiotic therapy and Mrs. Kappel’s complaints following the first hospitalization. In the cross-examination of Doctor Newman, plaintiffs’ counsel sought to elicit an admission that “there is a causal relationship between the lack of the antibiotic therapy and this final result of chronic wound infection and separation with resulting pain and drainage.” Such was an offer of proof stated by counsel when objection was sustained to his question leading up to an inquiry to such effect. (The basis for the offer of proof does not appear. Doctor Newman, on direct examination, testified that the wound infection had nothing to do with the condition which necessitated Mrs. Kappel’s rehospitalization.) Appellants make no objection here to the court’s ruling in this regard, so that we are not called upon to answer the question of the extent to which plaintiff in a malpractice case may call upon the defendant physician for expert testimony in support of plaintiff’s case. See Annotation: “Right to elicit expert testimony from adverse party called as witness.” 88 A.L.R.2d 1186.

Absent favorable plaintiffs’ evidence on the question of causation, we have examined defendants’ evidence to determine whether it contains evidence favorable to plaintiffs, which, together with that of plaintiffs, and viewed in the light most favorable to plaintiffs, supplies the essential proof of causation. We find the following: Doctor Newman testified that in a severe wound infection, “you get severe cellulitis on the abdominal wound * * From this an inference might be drawn that the prescription of Achromycin(V) to prevent the spread of infection was aimed at avoiding cellulitis. However, cellulitis did develop as shown by the diagnosis on Mrs. Kappel’s second hospitalization of “pelvic cellulitis, postoperative.” A second diagnosis on that hospitalization was- “Peritonitis, subacute.” A note, dated 8/28/61, in the hospital record of Mrs. Kappel’s second hospitalization by an otherwise unidentified “J. Russell, M.D.,” states: “In view of history of wound infection and Rt. (?) subdiaphragmatic infection following recent surgery, probably has flare up of infection in or around wound or smoldering subac. peritonitis.” Doctor Newman’s first note on the second hospitalization, dated 8/29/61, states a diagnosis of. pelvic cellulitis with low grade peritonitis. “It is unusual in my experience for pelvic postoperative infection to appear this late after surgery but apparently this is cause of pt’s symptoms.”

On the basis of this evidence, coupled with that of plaintiffs, may the jury reasonably infer causation? We think not because of the lack of essential proof that omission of the Achromycin (V) on the first hospitalization caused the continuance or recurrence of the infection which necessitated the second hospitalization. True, from Doctor Newman’s testimony the inference may be drawn that his object in prescribing Achromycin (V) was to prevent cellulitis. However, there is no evidence from which the jury could find that the treatment would likely have produced such result. Certainly the propensities of Achromycin (V) are not such a matter of common knowledge that jurors of ordinary intelligence and experience would know the results reasonably to be anticipated from treatment with such drug. There can be no doubt that infections do exist which resist even broad spectrum antibiotic treatment. See Rogers v. United States, 6th Cir., 334 F.2d 931, 934. Likewise, although the hospital notes on the second hospitalization refer to the previous wound infection, there is no way in which lay jurors, under the evidence here, could have concluded whether the condition which caused the second hospitalization was produced by the original wound infection or by conditions which developed for other causes in the 23-day interval between the two hospitalizations. Other than Mrs. Kappel’s testimony that there was a “hole” in her incision, there is nothing to show any external symptoms at the time of the second hospitalization. From this, we can assume that excretion from the wound was not present at that time. At least, plaintiffs’ evidence showed none. Lay jurors would hardly be qualified to assess the significance of a “hole” as it related to Mrs. Kappel’s condition on her second hospitalization. Likewise, her symptoms were so broad that the jurors would be unable to relate such matters as the shoulder pain to the original infection.

The foregoing demonstrates, we believe, that the evidence here could have served only to cast the jurors into “a river of doubt,” leaving only “conjecture and surmise in their effort to reach certain and sure ground.” Pedigo v. Roseberry, supra.

Appellants have not filed a reply brief, so we do not have the benefit of their analysis of the evidence on this matter. They have submitted four cases which, they contend, bear on the issue. However, we find none of them helpful in support of a contention that the evidence here was sufficient to make a submissible case on the issue of causation. Aiken v. Clary, Mo. Sup., 396 S.W.2d 668, was concerned primarily with the question of the necessity for expert medical testimony in relation to the doctrine of informed consent. The only discussion of the issue of causation (396 S.W.2d 676 [10, 11]) affords no assistance to plaintiffs here. In Steele v. Woods, Mo. Sup., 327 S.W.2d 187, medical evidence showed that gangrene resulted from impaired circulation; the impaired circulation resulted from spasms; the spasms would probably have been relieved by the blocking off of the involuntary nerves (the paravertebral block), and this was not done. The court concluded that this evidence “sufficiently established causal connection between the failure to give the block and the injury which plaintiff suffered.” 327 S.W.2d 196 [9]. The court reasoned that “[wjhere the logical conclusion from the evidence is that if certain things were properly done certain results would not have occurred, and they did occur, the question of causal connection is sufficient to go to the jury.” 327 S.W.2d 195 [8], Here, however, the conclusion that infection would not have occurred had antibiotics been administered is not a matter of logic or application of common knowledge.

In Morgan v. Rosenberg, Mo.App., 370 S.W.2d 685, the negligence charged was that the physician, after informing plaintiff that the removal of plaintiff’s gall bladder was required, performed an operation for such purpose but negligently omitted to remove the gall bladder. A subsequent operation was required and the removal done. In discussing the sufficiency of evidence of causation, the court appears to have concluded that expert testimony of lack of due care based upon a hypothetical question which assumed similar pain before and after the first operation was a sufficient basis for a finding of causation. We do not take that case to hold that similarity of pain before and after alleged negligent medical treatment is necessarily sufficient to support a finding of causation.

The fourth case, Seewald v. Gentry, 220 Mo.App. 367, 286 S.W. 445, contains a discussion indicating that expert medical testimony is not necessary to support a finding of causation. However, there was such testimony in that case.

Without endeavoring to lay down a hard and fast rule as to the necessity of direct expert testimony on the issue of causation in a malpractice case (see Annotation: “Proximate cause in malpractice cases,” 13 A.L.R.2d 11), we reach the conclusion that in this case the evidence was insufficient to show that the negligence charged was the cause of Mrs. Kappel’s injury. In such circumstances, we need not consider the trial errors asserted by plaintiffs. Bello v. Stuever, Mo.Sup., 44 S.W.2d 619, 620 [2],

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Fannie Elnora RICHARDSON and Emma Schmidt, Appellants, v. Harold WENDEL, Harold Claybrooks, Ronnie Lee Pasley, and Claybrooks Ambulance Service, Inc., a corporation, Respondents.
    No. 51532.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Rehearing Denied April 11, 1966.

      Elwyn L. Cady, Jr., Kansas City, Chris Kahmann, Kansas City, Bruce Barnett, Wiehita, Kan., for appellants.
    Thomas A. Sweeny, E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for defendant-respondent Harold Wendel.
    Darrell L. Havener, Vincent E. Rawson, Kansas City, Watson, Ess, Marshall & Eng-gas, Kansas City, of counsel, for defendants-respondents, Harold Claybrooks, Ronnie Lee Pasley, and Claybrooks Ambulance Service, Inc.
   PRITCHARD, Commissioner.

Appellant, Mrs. Schmidt, contends that error was committed by the trial court in directing a verdict against her at the close of all the evidence on her $35,524 claim for personal injuries. Both appellants contend also that the trial court should have granted their oral motion “for a directed verdict on the issue of liability only, as a matter of law, as against each and every defendant.” Appellant, Miss Richardson, contends that the trial court erred in allowing defendants’ argument on the nonproduction of mere consultant physicians, and in permitting prejudicial cross-examination of her on the drafting and content of abandoned pleadings filed by her in her $77,917 claim,(upon which the jury’s verdict was for respondents) for personal injuries. Both appellants’ claims arose out of a collision between a truck operated by respondent Wendel and an ambulance, in which appellants were passengers, and which was operated by respondent Pasley. Both respondents claim that no submissible case of negligence against them was made.

Miss Richardson was a practical nurse and prior to the collision, January 31, 1963, was employed by Mrs. Schmidt, a woman eighty years of age, in her home in Kansas City, Missouri. On January 29, 1963, a Doctor Cunningham made a house call at Mrs. Schmidt’s home and told her he wanted her to get some tests in a hospital. Apparently the hospital had no room that day, but on January 31, 1963, a nurse of the Osteopathic Hospital telephoned Miss Richardson to bring Mrs. Schmidt that night. Clay-brooks Ambulance Service was called and arrived for Mrs. Schmidt about 8:25 p.m., and respondent Pasley and another carried her to the ambulance and put her in the real thereof strapped to a cot or bed. Miss Richardson got in the front seat with Pas-ley, who drove south on Rainbow Boulevard with the siren on. Mrs. Schmidt asked him to turn it off, that she was in no hurry, but he kept it on through the Plaza area, and thereafter did turn it off permanently. When Pasley arrived at 29th and Troost, he proceeded north on Troost and then asked Miss Richardson the time. She told him 9:45, and he speeded up, saying, “Well, I will get back .in time to hear the news and see how many died on the A. and B. Bridge” (where he had been on a previous ambulance call). As they arrived at 25th Street, the speed of the ambulance was about 15 to 20 miles per hour, the intersection was controlled by stop and go lights, and the traffic light in front of the ambulance was red. When the ambulance was in the intersection, Miss Richardson saw the truck, operated by respondent Wendel, approaching from the west on 25th Street at what could have been 20 or 25 miles per hour, when it was about 18 inches to 2 feet in the intersection. Pasley did not swerve, slow down or sound a horn, and Wendel drove into the side of the ambulance striking it where the driver sits. Miss Richardson was the only witness who testified at the trial, and related the foregoing facts.

Portions of the depositions of Pasley and Wendel were read on behalf of appellants as admissions against interest. Pasley was going through a red light on 25th Street, and right up to the time of the collision was going 5 to 10 miles per hour. He saw the eastbound truck on Troost before the collision when it was about four car lengths away from the intersection. Pasley did not speed up, slow down, honk his horn, or swerve in either direction. “Question, ‘In how many feet did you stop that ambulance under the conditions that existed there at the scene of this accident at five miles per hour?’ Answer, ‘Approximately two car lengths.’ Question, ‘Two car lengths at five miles per hour?’ Answer, ‘About a car length.’ ” Pasley first noticed danger when he was 25 feet away, and figured that Wendel’s truck was coming into the intersection.

On the southwest corner of the intersection there is a building, because of which an eastbound driver on 25th Street would have to be even with the sidewalk to see down Troost one-half block. Wendel first saw the ambulance, its red lights flashing, when he was about 4 or 5 feet from the west curb line of Troost, and the ambulance was 25 feet from the intersection. Wendel’s speed was then 10 miles per hour, and he knew as soon as he saw the ambulance and its flashing red lights that it was an emergency vehicle and that there was danger of collision. He immediately applied his brakes and tried to turn left. His brakes were effective (they were not any less effective because of the mist and water conditions), and he did change his course of travel 6 or 7 feet. His right front fender “at its top” hit the left rear fender of the ambulance in front of the bumper about 2 feet. Wendel was familiar with the intersection. He saw the ambulance first traveling east on 31st Street at Gillham Road, and next in the intersection of 25th Street and Troost. In Wendel’s best estimate, 25th Street was between 40 and 45 feet wide, and Troost Avenue was about 60 feet wide.

The evidence here certainly lacks definiteness and preciseness as to the positions of the vehicles on the streets, i.e., lanes of travel thereon, prior to the collision so that it could be accurately known the distance between the vehicles within which effective evasive action, such as the pleaded stopping or swerving, could be taken. However, we determine that a submissible case was made upon either pleaded theory against both drivers. Wendel first noticed danger when he was 4 or 5 feet west of the curb line of Troost Avenue at 10 miles per hour, at which time the ambulance was 25 feet from (south of) the intersection. He testified that the mist and water condition of the street did not make his brakes any less effective. Troost Avenue was about 60 feet wide. The jury could presume that the ambulance driver was not violating the law and was driving upon his right half of the roadway as required by § 304.015, RSMo 1959, V.A.M.S., nothing appearing to the contrary. Compare Hook v. St. Louis Public Service Company, Mo.App., 296 S.W.2d 123, 127 [5] (presumption of legality that a bus was equipped with required brakes and horn) ; 31A C.J.S. Evidence § 134, p. 275. Thus, the jury could find that Wendel had one half the width of Troost Avenue, 30 feet, plus 4 or 5 feet within which to stop or swerve. It may be judicially known that a motor vehicle traveling at 10 miles per hour may be stopped within 35 feet, Johnson v. Missouri Pac. R. Co., Mo.App., 72 S.W.2d 889, 895 [2, 3], and since it could be so stopped, it follows that since it is also commonly known that vehicles respond quickly and accurately to the driver’s touch on the steering wheel, Perry v. Dever, Mo., 303 S.W.2d 1, 7 [13], Wendel could also have effectively swerved his vehicle to the right within the 35 feet, as alleged, and avoided the collision.

Pasley testified that his speed up to the collision was 5 to 10 miles per hour. He did not stop, slow down or swerve. When he first realized danger, he was 25 feet away. Although respondents argue that the evidence does not show from what he was 25 feet away, it is clearly inferable that he referred to danger, i.e., the possibility of collision, being within that distance. When Pasley first saw Wendel’s truck it was 4 car lengths from the intersection. Under these circumstances, the jury could know that Pasley could stop the ambulance within a very few feet or practically instantly at his slowest speed of 5 miles per hour, Smith v. St. Louis Public Service Co., Mo.App., 252 S.W.2d 83, 85; Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60, 64 [1-3], and certainly within 25 feet. If the ambulance could be stopped within that distance, it could be swerved, at its slow speed, to avoid the collision, Perry v. Dever, supra. Respondents’ points raising the sub-missibility of appellants’ case are overruled.

Appellants contend that the court erred in refusing their oral motion for directed verdict made at the close of all the evidence on the issue of liability of respondents. Although appellants made a submissible case of negligence against respondents, the latter did not admit that ultimate fact, which was for the jury. Rutledge v. Baldi, Mo., 392 S.W.2d 244, 246 [1,2]; Beezley v. Spiva, Mo., 313 S.W.2d 691, 695; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559. The trial court did not err in refusing to direct a verdict for appellants (plaintiffs below) on the issue of liability.

The trial court did not err in excluding proffered expert testimony of Miss Richardson concerning medical conclusions as to the reasonableness of medical expenses of Mrs. Schmidt. There was no medical evidence, or hospital record entries, that any of Mrs. Schmidt’s alleged complaints while in the hospital were caused by the collision, or that she was treated in the hospital or by a physician for any injuries received in the collision for which a charge was made. Miss Richardson did not qualify as an expert witness in the matters offered. However, Miss Richardson did testify with clarity and without equivocation that before the collision Mrs. Schmidt did not have these injuries which Miss Richardson, as a lay witness, observed at the scene and thereafter: a knot on her head, the upper temple from the edge of her hair to her eyelash on the right side; there was blood on her face; her right hip was black and blue, and up to the time of trial the hip area swelled and Miss Richardson had to put hot packs on it and massage it. When they arrived at the hospital the knot on Mrs. Schmidt’s head had swollen worse, and both areas (head and hip) were swelling and turning blue. See Norris v. St. Louis, I. M. & S. Ry. Co., 239 Mo. 695, 144 S.W. 783, 787 [4] ; and Williams v. American Life & Accident Ins. Co., Mo.App., 112 S.W.2d 909, 916 [11,12], to the effect that a lay witness may testify to observations of bodily condition made before and after an accident. Even though there was no medical evidence as to the injuries or causation, or even a list of the injuries on the hospital records testified to by Miss Richardson, we rule there was sufficient evidence from Miss Richardson to take to the jury the issue of Mrs. Schmidt’s injuries and that they were occasioned by the collision and respondents’ negligence, and which the jury could find would entitle Mrs. Schmidt to at least nominal damages. Respondents’ contentions that there was no substantial evidence for the jury to determine that Mrs. Schmidt suffered injuries in the collision are for these reasons overruled.

Appellant Richardson says that the court erred in allowing argument by respondents of an unfavorable inference against her because of her nonproduction as witnesses the physicians whom she saw, termed by her to be mere consultant physicians. No medical witness testified for Miss Richardson concerning her claimed injuries. Her hospital record was introduced, with entries by a Dr. Cunningham, her attending physician, relative to her injuries and treatment. She saw a Dr. Revis Lewis, a neurosurgeon, about a month after the collision. She was also referred by Dr. Cunningham to a Dr. James Bolin, who treated and examined her. Both Dr. Lewis and Dr. Bolin maintained offices and were still in the community at the time of trial. Miss Richardson called neither as expert medical witnesses. There was no error of the trial court in permitting counsel for respondents to comment upon Miss Richardson’s failure to call her treating and examining physicians who were available to her, and who would have had knowledge of her claimed injuries superior to her hospital record and certainly as to what she herself testified to be her injuries. Russell v. St. Louis Public Service Co., Mo., 251 S.W.2d 595, cited by Miss Richardson, is -not in point for the reason that the testimony of these two physicians would not have been relatively unimportant. These were examining and treating physicians, employed after the collision, who may have shed light on the subject of Miss Richardson’s injuries, whether their testimony would have been corroborative, cumulative or superior to the evidence received. In this circumstance, counsel had the right to call the attention of the jury to the strong presumption raised by the failure to produce these witnesses that their testimony would have been unfavorable and damaging to her. See Trzecki v. St. Louis Public Service Co. et al., Mo., 258 S.W.2d 676, 679; Block v. Rackers, Mo., 256 S.W.2d 760, 764; Spaeth v. Larkin, Mo., 325 S.W.2d 767, 772. Miss Richardson’s point raising this issue is overruled.

For her last point, Miss Richardson contends that the court erred in permitting the reading of portions of her original petition, first, and second amended petitions in the course of her cross-examination. Miss Richardson’s testimony at the trial was that the siren on the ambulance was on and that the traffic signal was red for Pasley, its driver. The allegations in the prior petitions read were contrary to her testimony, and by reason thereof were against her interest as to Pasley, and were admissible for impeachment-purposes as offered by counsel for Wendel. Carter v. Matthey Laundry & Dry Cleaning Company, Mo., 350 S.W.2d 786, 791 [1,2]. Appellant Richardson’s last point is overruled.

We find no reversible error in any respect contended as to the trial of appellant Richardson’s case, and as to her the judgment is affirmed. For the reasons stated, appellant Schmidt made a submissible case of negligence and injury, and as to her the judgment is reversed and her case is remanded for new trial.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: DONNELLY, Judge.

text:
    Mary Lou COMBELLICK, Respondent, v. Leslie Vance ROOKS, Appellant.
    No. 51827.
    Supreme Court of Missouri, En Banc.
    March 14, 1966.
    Rehearing Denied April 11, 1966.

      Lane D. Bauer, David W. Shinn, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondent.
    Edward E. Schmitt, John P. Britton, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, for appellant.
   DONNELLY, Judge.

In this jury-tried action for damages resulting from an intersectional vehicular collision in Kansas City North, Clay County, Missouri, which occurred on October 13, 1962, plaintiff received a verdict in the amount of $7500, and defendant appealed to the Kansas City Court of Appeals which Court adopted an opinion affirming the judgment. Upon defendant’s application, we ordered the case transferred to this Court and it will be determined here “the same as on original appeal.” Rule 84.05(h), V.A.M.R., Mo.Const., Art. V, § 10 (1945), V.A.M.S.

The collision occurred at the intersection of North Main Street and 81st Street. North Main Street extends north and south and 81st Street extends east and west. There were no stop signs at the intersection at the time of the collision. Plaintiff was westbound on 81st Street and defendant was southbound on North Main Street. The impact occurred in the northwest quadrant of the intersection. The front of defendant’s vehicle struck the right side of plaintiff’s vehicle at the right front door. There were bushes and trees along the east side of North Main Street and to the north of 81st Street. These bushes and trees partially obstructed plaintiff’s visibility to the north on North Main Street as plaintiff proceeded west on 81st Street and approached the east edge of the intersection.

Defendant contends that the trial court erred in overruling his Motion for Directed Verdict for the reason that plaintiff was guilty of contributory negligence as a matter of law. “In determining this question, we bear in mind that plaintiff’s negligence is a jury question, unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury.” Kickham v. Carter, Mo.Sup., 314 S.W.2d 902, 908.

Plaintiff testified that as she approached the intersection she came to a rolling stop ten to twelve feet from the intersection and looked for approaching vehicles; that in spite of some bushes and lilac trees on the east side of Main Street and north of 81st Street, which affected her visibility, she could see a safe distance to the north and saw no vehicles; that she proceeded into the intersection looking straight ahead, and was about two-thirds of the way across the intersection when her car was struck on the right side “where the passenger’s door would open.” Plaintiff did not see defendant’s vehicle prior to the collision. Laura Myrl McNutt, a passenger in plaintiff’s vehicle, testified that plaintiff slowed almost to a stop at a point about ten feet east of the intersection, looked to see if anybody was coming and then started across; that she, Laura Myrl McNutt, looked to the right when plaintiff’s vehicle was about ten feet from the intersection and there was no traffic coming south on North Main Street; that when they were about the middle of the intersection she glanced up and saw defendant’s vehicle three or four car lengths from the intersection, coming south at a speed of fifty miles per hour or more. Defendant alleges that there was evidence that plaintiff came to a rolling stop one or two feet east of the intersection before proceeding into the intersection. He alleges further that the evidence conclusively shows that from a point one or two feet east of the intersection, defendant’s vehicle was visible to plaintiff had she looked. It is true that counsel for defendant, in his cross-examination of plaintiff, included in his questions an assumption that plaintiff came to a rolling stop one to two feet east of the intersection, and it is true that plaintiff did not protest the form of the questions. However, at the close of cross-examination, plaintiff testified that she came to a rolling stop and looked from a point twelve feet east of the intersection. Cross-examination ceased immediately thereafter.

In view of this evidence, reasonable minds could differ on the question of plaintiff’s negligence. Defendant correctly contends that where “one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed.” Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548, 553; Thaller v. Skinner & Kennedy Company, Mo.Sup., 315 S.W.2d 124, 129. He cites Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626, and Roux v. Pettus, Mo.App., 293 S.W.2d 144, in support of his position. In the Branscum case, when plaintiff stopped his car at the stop sign, he could have seen at least 1000 feet on Highway 50. In the Roux case, as plaintiff moved toward the intersection from a position thirty-two feet from the intersection “a mere glance to his right would have revealed defendant’s rapid approach in time for plaintiff to have taken steps to avert the collision.”

These cases do not assist defendant when applied to the evidence adduced here. Plaintiff looked to her right when ten to twelve feet from the intersection and did not see defendant’s vehicle. It cannot be said conclusively that defendant’s vehicle was then visible. Further, plaintiff’s evidence shows that she was the first to reach and enter the intersection. She could assume, under the evidence that anyone approaching the intersection would yield the right of way to her. “While she had the duty to maintain a look-out ahead and laterally ahead she could not keep an uninterrupted watch in two directions, she was not required to look constantly to one side, and she did not need to keep turning her head from side to side.” Schmittzehe v. City of Cape Girardeau, Mo. Sup., 327 S.W.2d 918, 923. The question whether plaintiff was negligent in failing to look a second time was for the jury. Hunt v. Babb, Mo.App., 340 S.W.2d 177. Plaintiff was not guilty of contributory negligence as a matter of law.

Defendant complains of the action o£ the trial court in allowing plaintiff to use a transcript of a police court proceeding in connection with cross-examination of defendant and to impeach defendant.

Defendant served interrogatories on plaintiff and plaintiff answered them prior to trial. The pertinent interrogatories, and answers thereto, are as follows:

“12. Please state whether you or anyone acting on your behalf has received, obtained or made any recital or statement in writing or reduced to writing or stenotype or otherwise from or by defendant relevant to the October 13, 1962 accident.”
“12. No.”
“13. If your answer to the foregoing interrogatory No. 12 is in the affirmative, please attach a copy or copies of all such statements, writings or transcripts to your answers hereto.”
“13. See answer to #12.”

In fact, plaintiff had hired a stenographic reporter to record and transcribe testimony given by defendant before the Municipal Court in defense of a traffic charge arising out of the accident. Plaintiff did not divulge the contents of this transcript until cross-examination of defendant when it was used to impeach his testimony given at the trial. The first question for determination is whether a copy of such testimony is a “statement” under Rules 56.01 and 57.01(b), V.A.M.R., and thus discoverable. Rule 56.01, to the extent pertinent here, provides: “Interrogatories may require as a part of or with the answers copies of all statements concerning the action or its subject matter previously given by the interrogating party, * * Rule 57.01(b), to the extent pertinent here, provides: “The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial (except a statement given by the interrogating party) * * *, shall not be required.”

It is clear that the discovery sought is not privileged and is not a non-discoverable “work product” of plaintiffs attorney. State ex rel. Hudson v. Ginn, Mo.Sup., 374 S.W.2d 34, 39. In our judgment, the interrogatories are not ambiguous or indefinite. The police court transcript came within the terms of the interrogatories when they asked for a “recital or statement in writing or reduced to writing or steno-type or otherwise” and requested “a copy or copies of all such statements, writings or transcripts.” Is the police court transcript a “statement” within the terms of Rules 56.01 and 57.01(b) V.A.M.R.? We are of the opinion that it is. While the “Committee Note and Comment” set forth following Rule 56.01 V.A.M.R., among other things, states that the “amendment resolves another mooted question by granting a party the right to obtain a copy of any statement which he has given his adversary * * * " (emphasis ours), we do not consider Rule 56.01-to be limited to this extent. The rule requires- “ * * * copies of all statements concerning the action or its subject matter previously given by the interrogating party, * * We hold that the portion of the transcript of the police court proceeding containing defendant’s testimony is a “statement” within the rule. We emphasize that the transcript was not equally available to both parties. Had the transcript been that of a former trial in a court where a record is kept, and where both parties, in the exercise of due diligence, could have obtained a copy without utilization of discovery procedures a different question would be presented.

We next consider whether we will defer to the discretion of the trial court in permitting plaintiff to use the transcript to impeach defendant’s testimony after plaintiff failed to disclose its contents by answers to interrogatories. “The law is well settled that the extent and scope of cross-examination in á civil action is discretionary with the trial court and its rulings in regard thereto will not be disturbed unless an abuse of discretion is clearly shown.” Eickmann v. St. Louis Public Service Company, Mo.Sup., 323 S.W.2d 802, 807. In Aulgur v. Zylich, Mo.App., 390 S.W.2d 553, 556, the Kansas City Court of Appeals quoted from Barron & Holtzoff, Federal Practice and Procedure, Vol. 2A, § 776, and held that “the trial court has a broad discretion to choose a course of action during trial when evidence is challenged on the ground it has not been disclosed by answers to interrogatories.”

We do not reject these statements of law but hold they are not applicable here. We held in State ex rel. Hudson v. Ginn, supra, that a trial court is without discretion to refuse to require compliance with the rules of discovery. Here the plaintiff, without objecting to Interrogatories 12 and 13, undertook to interpret them as not requiring the disclosure of the transcript of the police court proceeding. This was a hazardous undertaking. In so doing plaintiff waived any objection to the form of the interrogatories and deprived the trial court of the opportunity to remedy the situation before trial. The rules of discovery here invoked were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits. . It necessarily follows, if such rules are to be effective, that appropriate sanctions be imposed for violations thereof. We hold that defendant was prejudiced by the use of the transcript of the police court proceeding, after failure of plaintiff to disclose its contents, and that for this reason the case must be reversed and remanded for new trial.

Defendant claims error in the action of the trial court in permitting witnesses Mr. and Mrs. Hainline to testify that defendant was driving at a speed of fifty to sixty miles per hour at a point between two and two and one-half blocks north of the intersection at which the accident occurred. Defendant objected to such testimony on the ground that it was remote and immaterial. We cannot anticipate what evidence will be adduced upon re-trial of this case. Plaintiff may decide the evidence objected to may serve no real purpose if Mrs. McNutt, a passenger in plaintiff’s vehicle, again testifies that when she saw defendant’s vehicle two or three car lengths away, just prior to the collision, it was traveling fifty miles per hour or more. If the testimony of Mr. and Mrs. Hainline is submitted, it is, in the discretion of the trial court, admissible if under all the evidence in the case it is directly connected with defendant’s alleged negligent speed at the time of collision. In this regard, the parties have cited and are cognizant of Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353; Shepard v. Harris, Mo.Sup., 329 S.W.2d 1; Sauer v. Winkler, Mo.Sup., 263 S.W.2d 370; Sisk v. Industrial Track Const. Co., 316 Mo. 1143, 295 S.W. 751; and Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. They will be guided by the law pronounced therein.

Defendant contends the trial court erred in giving Instructions 1, 2 and 3. The case went to the jury on April 23, 1964, prior to the effective date of Rule 70.01, V.A.M.R., as amended May 20, 1964. Having concluded that this case must be remanded for new trial, for submission to a jury under Missouri Approved Instructions, we will not rule on the propriety of the instructions given.

Reversed and remanded for new trial.

All concur.