author: EAGER, Presiding Judge.

text:
    Isabel CARLSON, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 48685.
    Supreme Court of Missouri, Division No. 2.
    June 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 16, 1962.

      William R. Kirby, Charles A. Lee, Jr., St. Louis, for appellant.
    V. James Ruddy, St. Louis, for respondent.
   EAGER, Presiding Judge.

Plaintiff filed suit for personal injuries and property damage ensuing when her car, a 1948 Ford, was struck by a bus in St. Louis on July 3, 1958. The prayer was for $20,-200; the jury’s verdict was for the defendant on plaintiff’s claim and against defendant on its counterclaim for a rather trivial damage to the bus. The collision occurred near the south edge of Natural Bridge Road about 240 feet east of Kingshighway. Plaintiff, accompanied by a passenger who lived and worked with her, had proceeded west on Natural Bridge up to the point of collision. At that point the south or eastbound half of Natural Bridge was shown to be 39 feet, 2 inches wide from center to curb. Two eastbound traffic lanes were marked out immediately south of the center, leaving a space farther south which was shown to be 17 feet, 11 inches wide. The inner portion of this was used as a third traffic lane, the remainder for parking and bus zones. For clarity we shall refer to the latter as the parking lane.

Plaintiff wished to turn south, across the eastbound lanes, to enter a driveway which led to her employer’s parking lot. From her testimony the following appears: she stopped in the westbound lane nearest the center of the street, turned on her blinker lights, held out her hand for a left turn and waited for the eastbound traffic to stop for the Kingshighway light; when it did, traffic in the first two lanes was backed up west-wardly, but two cars in the first eastbound lane made room for her and she crossed it; cars in the next lane likewise made room and she crossed that and stopped, with her bumper even with the right side of the eastbound car in that second lane. No cars were stopped in the third lane. There she looked to the west and could see perhaps two car lengths or about 30 feet; she then moved slightly forward in order to see farther down the street to her right; she could and did then see for five or six car lengths, 75 to 90 feet, and saw nothing in the remaining lanes; she then proceeded on across, looking to see if there was anyone on the sidewalk and, attaining a speed of about five miles an hour, reached the driveway and entered it. When her bumper was about at the curbline, she heard something, looked, and saw an eastbound bus six or seven feet away traveling in the curb lane. Her car was struck on the right rear corner by the bus when the car was all in the driveway “up to the back wheel.” The impact left the car at a 45 degree angle; the damage to the car was to the rear fender, largely behind the wheel, with also a crack in the right front door glass. The bus operator testified that the impact involved approximately the rear three feet of the right side of the car. The bus stopped near the curb and a short distance beyond the point of impact. Defendant’s counsel offered portions of plaintiff’s deposition to show that when she stopped after crossing the second lane she could see west to the next corner, but those inconsistencies were matters for the jury. At the trial she specifically denied this.

Plaintiff’s passenger, Elizabeth Menzel, corroborated plaintiff’s testimony in considerable detail, stating that after plaintiff crossed the second lane and stopped, she moved forward a little so that she could see, and ‘‘seeing nothing she started forward * * Miss Menzel first saw the bus when it was six or seven feet away, and traveling in the curb lane. This witness testified that she saw nothing coming when plaintiff stopped at the south edge of the second lane; that when plaintiff started out into the (third) lane the witness could see about five or six car lengths, and after her body passed the stopped cars she could see ‘‘quite a distance/’ and that there was nothing in view. She saw no parked cars.

A passenger on the bus, Clarence Woods, testified that he was standing at a door waiting to get off at the next stop; that the bus was traveling “in the bus stop zone” and right next to the curb; that at the time of impact the bus was so close to the curb that one would not have had to step in the street to reach the curb. He further testified that the bus was “pulling down” prior to the impact but no more than for a normal stop; that he was not holding on to anything and was not jarred off his feet, and in substance, that the stop was a normal one; that the bus did not swerve.

John William Bland, a registered engineer, testified to the street measurements, certain bus measurements, the average overall height of cars in 1958 (58 inches), the fact that a 1948 Ford would be somewhat higher, and that in a bus of this type the driver’s eyes would be approximately six feet, eight inches above the pavement. He further testified: that at a speed of 20 to 22 miles an hour the bus could have reasonably been stopped in an overall distance of 72 feet with safety to its passengers, of which distance 25 feet would be consumed by reaction time; that at 20 miles an hour the bus would travel 30 feet per second and at 22, 33½ feet; that plaintiff’s car would have traveled the distance from the south line of the second lane to the curb, being something over 17 feet, in a little more than three seconds, at the speed plaintiff described (i. e., from zero to five miles an hour).

The bus operator, James Counts, was put on the stand by plaintiff. He testified: that he was driving in the third eastbound lane; that the traffic on his left was stopped and cars were parked intermittently in the curb lane; that he first saw the top of plaintiff’s Ford moving through the second lane of traffic at about five miles an hour, when he was about 35 feet from the Ford, and traveling at 20-22 miles an hour; that the Ford was then about half way through the second lane; that he had not previously noticed any open spaces in the traffic stopped on his left; that at 100 feet back he had been looking foward; that he was going to stop at the bus stop just 50-60 feet beyond the point of collision and that passengers were waiting to get off there; that after he first saw plaintiff’s car it speeded up, and he immediately applied his brakes as hard as he could with safety, having his foot already on the brake; that he also swerved about two feet to his left coming to within six inches of the line of stopped cars; that the bus damaged the rear three feet of plaintiff’s car and if it had been three feet farther south there would have been no collision; that he had a full load of passengers and stopped seven feet beyond the point of collision; that plaintiff’s car came to rest about twenty feet into the parking lot; that the point of impact was 12-13 feet north of the curb, and that the front of the Ford was then at the curbline. The brakes of the bus were in good condition. It is not necessary to refer to any testimony concerning injuries.

Plaintiff’s case was submitted on primary negligence in failing to keep a lookout, and on humanitarian negligence in failing to stop or slacken speed and thus avoid the collision. Defendant insists here that plaintiff made no submissible humanitarian case and that she was contributorily negligent as a matter of law; hence this detailed discussion of the evidence. Plaintiff complains of errors in two instructions, Numbers 6 and 2, and of error in the admission of evidence. In overruling plaintiff’s motion for a new trial the court indicated: that it was denying the motion because plaintiff “failed to make a case,” and that if defendant had filed an after-trial motion for judgment it would have been sustained, with the condition that if the ruling should be reversed, plaintiff’s motion for a new trial would be sustained for error in giving Instruction No. 6 in that it directed a verdict on “failure to stop only.”

Defendant initially urges that appellant’s statement, as well as her points and authorities, constitutes a violation of our Rule 83.05, V.A.M.R. We do not find them so deficient as to require a dismissal, or that we should disregard her points, but we do call the attention of the Bar, again, to what we said in Domijan v. Harp, Mo., 340 S.W.2d 728, 731-732, hoping that the Bar would take heed. The complaint that the questioned instructions are set out in appellant’s statement, rather than in the argument, is not fatal; portions are also set out in the argument.

First, — did plaintiff make out a submissible humanitarian case? Defendant says that she did not, because she must have had substantial evidence showing the ability to stop as well as to slacken, that plaintiff was bound by the testimony of the operator, and that no witness fixed the location and speed of the bus at a time and place when the operator would have had the ability to stop after plaintiff came into peril. Defendant adds, also, that the operator testified to an immediate slackening of the bus, and that plaintiff is bound thereby. In considering whether plaintiff made out a submissible case, we consider the evidence in the light most favorable to plaintiff, though defendant had a verdict. Counts v. Kansas City Southern Ry., Mo., 340 S.W.2d 670, 672; Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74. Plaintiff’s Instruction No. 4, the humanitarian submission, included the following: “ * * * to have, by the exercise of the highest degree of care, avoided the collision mentioned in the evidence, by having stopped said bus or by having sufficiently slackened the speed thereof and that defendant’s operator failed to do either and was thereby negligent, * * Defendant insists that since this submission was in the disjunctive it was necessary that plaintiff have substantial evidence to support each such assignment of negligence (citing Gaffner v. Alexander, Mo., 331 S.W.2d 622; Lyons v. Taylor, Mo.App., 333 S.W.2d 346) in order to make a submissi-ble humanitarian case. That is a rule of wide and accepted application but it is ordinarily applied where objections to a specific instruction, preserved by the losing party, are being directly considered on appeal. Gaffner, supra; Lyons, supra; Setser v. St. Louis Public Service Co., Mo.App., 209 S.W.2d 746; Johnson v. St. Louis Public Service Co., Mo., 237 S.W.2d 136. Under those circumstances, if the instruction is unsupported by substantial evidence on one or more of the stated grounds of negligence, it is ruled to be erroneous. Here defendant had a verdict; it has lost nothing by reason of this plaintiff’s instruction, and the correctness of the instruction, as such, is not in question on this appeal. Defendant’s claim here is that the court should have directed a verdict for it at the close of the evidence. It was not entitled to a directed verdict if plaintiff had made a submissible case upon any theory. See, specifically, Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77. We rule that under these circumstances it is not necessary to find substantial evidence of the ability of the operator to stop, if there was substantial evidence of his ability to avoid the collision and injury “by having sufficiently slackened’ the speed. * * Consequently, we consider the latter phase of the evidence.

The operator testified that he was “about thirty-five feet” from plaintiff’s car when he saw it, traveling at five miles an hour and about half way through the second lane. This does not, by any means,, foreclose the duty to have seen it sooner. His statement of distance was at most an estimate, and indeed one which smacks of a conflict with the physical facts. This for the reason that he, at 20-22 miles an hour,, was traveling from 30 to 33½ feet a second. and plaintiff at approximately 7⅜⅞ feet a second; he would surely have reached her car (upon his own theory that the collision was in the third lane) in not more than two seconds, even allowing for some slowing, whereas it would obviously have taken plaintiff approximately four seconds to finish the second lane, drive through the third, and go far enough through the curb lane and driveway to leave only three feet of her car in the path of the bus. In other words, it would seem physically impossible for the collision to have taken place as it did (i. e., with the bus striking the rear three feet of plaintiff’s car) if the speeds and locations which he gave were true. We do not disregard his testimony, but the jury might fairly have inferred that the bus was considerably farther than 35 feet away when the operator saw plaintiff’s car, and certainly still farther away when he should have seen it. Moreover, on the specific testimony of plaintiff, and her witnesses Menzel and Woods, that the impact occurred almost at the curb and in the curb lane, plaintiff would have been required to clear the full width of the curb lane except for three feet, thus necessarily placing the bus still farther back. There was direct testimony that it took plaintiff over three seconds to travel the 17 feet plus (actually 17 feet, 11 inches) from the south edge of the second lane to the curb. On her testimony she went approximately twelve feet farther before the collision, which means, of course, that her car was in the open and visible for more than four seconds. Of course, plaintiff was not in imminent peril until she emerged from the stopped traffic and into the open lane or lanes. On the operator’s evidence she would have come into imminent peril as soon as she entered the third lane, for he was traveling in it; in view of the fact that she was proceeding across the last two lanes, according to the favorable testimony, wholly unaware of the bus and evidently oblivious, we are convinced that there was substantial evidence to show that the bus was far enough away when the operator should have seen her car and recognized her peril for him to have slackened sufficiently to avoid the collision. The evidence indicates that there was nothing to prevent him from seeing the car at any and all times after it started through the second lane of traffic, and from much farther back than 35 feet. Mr. Woods, the passenger, testified that the stop was nothing more than a normal stop, and that he was standing up, not holding on to anything. Defendant’s counsel say on the slackening question that plaintiff is bound by the testimony of the operator that when he saw plaintiff’s car at 35 feet, he immediately applied the brakes and stopped as soon as he could with safety. Plaintiff is not bound by the testimony of any of her witnesses where there is other evidence, express or by inference, on the subject (Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743; DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454; Lay v. McGrane, Mo., 331 S.W.2d 592), and even where there is no other evidence or where the plaintiff so testifies himself, he is not conclusively bound by mere estimates of distance or speed. Stodgell v. Mounter, Mo., 344 S.W.2d 100; Smith v. Siercks, Mo., 277 S.W.2d 521. And the jury could believe all or none of the testimony of the operator, or believe it in part and reject it in part. Lay v. McGrane, Mo., 331 S.W.2d 592, 597. Plaintiff was also entitled to the favorable evidence of herself and her witness Menzel that, when entering the third lane, they looked, could see 75-90 feet, and that the bus was not there. This extends considerably the permissible distance for the slackening of speed, — dependent, of course, on the jury’s finding as to when imminent peril arose. A slowing of an additional one-half second or less (three feet of plaintiff’s travel at five miles an hour) would have permitted plaintiff to escape. And, according to the operator, he stopped the bus within seven feet of the point of impact, in what (according to Woods) was a normal stop. We hold that there was a submissible jury question. See: DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 636; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 698, 34 A.L.R.2d 972; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W. 2d 463; Prince v. Bennett, Mo., 322 S.W.2d 886, loc. cit. 889, containing discussions of the “almost escaping” doctrine. We are aware of the criticism of that doctrine, Hunt v. Chicago, M. St. P. & P. R. Co., Banc, 359 Mo. 1089, 225 S.W.2d 738, 741, and do not rely upon it to the extent that “no evidence, either direct or circumstantial, is required.” Hunt, supra. However, not always is “specific proof of the extent that the speed could be slackened” required. Prince, supra. There was evidence from which the jury might reasonably have inferred that the operator could and should have slowed the bus sufficiently, with the means at hand, after plaintiff entered the zone of imminent peril and after he saw or should have seen her, to have allowed her to move out of the path of the bus.

Having determined that there was a submissible humanitarian case, we consider plaintiff’s assignments here as to defendant’s Instruction No. 6. Defendant asserts that some of the points now made are insufficient, and that some were not preserved in the motion for new trial. We deem those which we now consider sufficiently raised and preserved under a rather liberal construction. In its essential parts that instruction was as follows: “ * * * that * * * the operator of the motorbus * * * was driving * * * in the lane of traffic next to the south curb lane of Natural Bridge, and if you further find that when the front end of said motorbus was approximately 35 feet west of the driveway mentioned in the evidence it was travelling at a speed of 20 to 22 miles per hour, and if you find that the operator of said motorbus observed plaintiff’s automobile moving south-wardly across the eastbound lanes of traffic toward said driveway at a speed of approximately 5 miles per hour when the front end of plaintiff’s automobile was approximately in the center of the middle lane for eastbound traffic on Natural Bridge Boulevard, and if you further find that the plaintiff continued driving her automobile southwardly and drove directly in front of and in close and dangerous proximity to defendant’s motorbus at a time when it was too late for the operator of the motor-bus in the time and space available and in the exercise of the highest degree of care, with the means and appliances at hand, to have brought said motorbus to a stop in time * * * and if you find that the operator of the motorbus was at all times exercising the highest degree of care in the operation of said motorbus and was not negligent under any of the other instructions submitted to you herein, then, in that event, plaintiff is not entitled to recover * *

Plaintiff insists that this is a sole cause instruction, while defendant says that it is a “no negligence” instruction, merely setting out affirmative facts on defendant’s theory to show that it was not negligent. It makes little difference what we call it; it did attempt to hypothesize defendant’s theory and directed a verdict. It must have been complete, both in the essentials of its hypothesization and in a recognition of defendant’s duties. This instruction does not fix the location of the bus at the time the operator first saw plaintiff’s car, it does not even mention a position of imminent peril as such, nor require a finding as to when plaintiff entered that position as a basis for a negation of defendant’s humanitarian negligence; it completely ignores the possibility (and perhaps probability) that the operator should have seen plaintiff’s car before he actually did; in other words, it speaks as from the time when the operator saw plaintiff and not as of the time when he saw or reasonably should have seen her. In addition, and of much importance, it relieves defendant of all liability if the operator was unable to avoid the collision by stopping, completely ignoring the submitted duty of slackening sufficiently to avoid the collision; in this later respect if defendant intends to say, as apparently it does, that slackening was included in the cover-all phrase “and was not negligent under any of the other instructions,” most certainly the submission of stopping and not of slackening was misleading, and the general reference to other instructions and to the exercise, generally, of the highest degree of care was not sufficient either to correct that false impression (Ozbun v. Vance, Mo., 323 S.W.2d 771, 774, 775; Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892, 897) or the failure to hypothesize facts to sustain a finding of no humanitarian negligence. While the instruction does not specifically use the word “negligence” as applied to plaintiff’s acts, it might well be construed as permitting a consideration of her antecedent negligence. Except for the generalizations regarding “other instructions” and the degree of care exercised, the instruction ignores the operator’s duty to keep a careful lookout, the primary negligence submission. In Ozbun v. Vance, Mo., 323 S.W.2d 771, the court said at loc. cit. 775; * * * we add that, having directed the jury’s attention to a specific set of facts hypothesized as absolving defendant from responsibility for humanitarian negligence but omitting from the hypotheses the further essential facts which if found to be true would negate antecedent primary negligence as submitted in behalf of a plaintiff, it would seem that a defendant could not supply the omitted essential facts by a general ‘catch-all’ phrase such as 'and if you further find that defendant was not guilty of any negligence as submitted to you in other instructions,’ which clause at best, in a verdict-directing instruction such as defendant’s Instruction No. 1-D given in this case, is confusing and misleading. See Rohde v. St. Louis Public Service Co., Mo.Sup., 249 S.W.2d 417, at page 421.” When we also consider the probable conflict with physical facts involved in this submission, the errors noted become particularly insidious. On the elements required in such an instruction generally, see: Janssens v. Thompson, Banc, 360 Mo. 351, 228 S.W.2d 743; Payne v. Smith, Mo., 322 S.W.2d 764 (in failing to converse the humanitarian submission); Landau v. St. Louis Public Service Co., Mo., 322 S.W.2d 132; Klecka v. Gropp, Mo., 278 S.W.2d 790. We hold that the giving of Instruction No. 6 was prejudicial1 error.

In view of another trial we must consider the contention that plaintiff was contributorily negligent as a matter of law, thus barring a primary negligence submission. We hold that she was not, although a jury might well find her to have been. Again giving her the benefit of the most favorable evidence, we find: that there was evidence that plaintiff looked as she entered the third lane, could see for 75-90 feet and that there was no bus there; that this was confirmed by Miss Menzel; that a bus at 20-22 miles an hour could stop in 72 feet; that she needed to travel only ten feet plus the length of her car to clear the third lane; that one conceivably might not expect a bus to be running in the curb lane, reserved for parking and bus stop zones; that in the 17 feet plus which she traveled to the curb it .was necessary for her to watch for pedestrians on the sidewalk, and she could not continually turn her head; that there was no specific prohibition against making this sort of turn; that the bus was running so close to the curb that, at impact, one could have stepped from it to the curb, and that this fact may have made it more difficult to see; and that the physical facts mitigate strongly against the operator’s testimony that plaintiff drove out in front of the bus when it was less than 35 feet away. Defendant argues that where there is a duty to look, a failure to see what is plainly visible is negligence as a matter of law. Douglas v. Whitledge, Mo.App., 302 S.W. 2d 294. The rule as often stated is that one charged with looking, is held to have seen what looking would reveal (Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73; Witt v. Peterson, Mo., 310 S.W.2d 857), which may be substantially the same thing. We cannot say under this evidence at what point the bus would have been “plainly visible” to plaintiff, nor just when she should have seen it. Generally, as indicating a jury question here, we may note: Cooksey v. Ace Cab Co., Mo., 289 S.W.2d 40; Pender v. Foeste, Mo., 329 S.W.2d 636; Slaughter v. Myers, Mo., 335 S.W.2d 50; Steele v. Goosen, Mo., 329 S.W.2d 703; Montgomery v. Petrus, Mo.App., 307 S.W.2d 24; Moore v. Southwestern Bell Telephone Co., Mo., 301 S.W.2d 817; Hoppe, Inc. v. St. Louis Public Service Co., Mo.App., 227 S.W.2d 499; Jones v. Fritz, Mo.App., 353 S.W.2d 393. The facts in every case differ so widely that no one is ordinarily a controlling authority in another. What we have said is applicable to negligence charged under § 304.021(6) as well as to common law negligence. Plaintiff was entitled to a submission on the primary negligence issue of lookout.

Plaintiff complains here of Instruction No. 2 submitting the defense of contributory negligence. Since the case is to be retried, the parties may reconsider the instruction in the light of the objections. We shall mention very briefly two other points raised here. On redirect examination of the operator of the bus, plaintiff brought out the fact that he had obtained the names and addresses of 14 persons at the scene of the collision, largely passengers. It was further developed that he had made a report, but that he had not brought the report or any witness cards with him, except those of plaintiff and Elizabeth Menzel. The court thereafter permitted defendant’s counsel to read from its own answers to interrogatories enough to show that the names and addresses obtained by the operator were furnished to plaintiff. The point made here is that this evidence was self-serving and incompetent. It merely served to explain away the inference that plaintiff did not have the names and that perhaps they were being withheld; certainly there was no abuse of the court’s discretion in admitting the evidence.

The witness Elizabeth Menzel had filed suit for her injuries against plaintiff and the Public Service Company jointly. Defendant brought out in her cross-examination that she had made a claim against plaintiff and had settled it; on redirect, plaintiff’s counsel showed that she had also made claim against the Public Service Company and had settled that. Thereafter, out of the presence of the jury counsel for defendant obtained permission to ask this witness, and did ask her, the following question: “ * * ⅜ out of the total settlement * * * three-fourths was paid by Mrs. Carlson, isn’t that true ?” The answer was that the witness did not know “who paid what.” We deem the question improper and the objections to it, made largely out of the presence of the jury, sufficient. In view of our reversal on other grounds, it is unnecessary to determine whether the asking of that question, in itself, constituted prejudicial error.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Mary E. TRAUTMANN, Appellant, v. Gail Rae HAMEL, Respondent.
    No. 49050.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 16, 1962.

      Rufus Burrus, Independence, and Wes-ner & Wesner, Sedalia, for appellant.
    Hale Houts, Alvin C. Randall, Houts, James, Randall, Hogsett & McCanse, Kansas City, for respondent.
   HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $25,000 for the alleged wrongful death of her husband resulting from an automobile collision. A trial resulted in a verdict for defendant. Plaintiff has duly appealed and here contends that she is entitled to a new trial because of the alleged errors of the trial court (1) in sustaining defendant’s objection to the admission in evidence of the deposition of Hazel Luetgen, and (2) in giving Instructions 3 and 4 at the request of defendant. While defendant contends on this appeal that there were no prejudicial trial errors, her first contention is that any such errors would be immaterial) because plaintiff failed to make a submis-sible case on the evidence submitted, and would not have been aided by the deposition of Mrs. Luetgen.

The collision in question occurred in Sweet Springs, Missouri, at the intersection of east-west Highway 40 and north-south Highway 127. Plaintiff’s decedent was driving a Chevrolet pickup truck northwardly on Highway 127 and at collision time was crossing Highway 40. Defendant was driving a Ford Convertible west on Highway 40. The left front of the Ford struck the right front of the pickup truck. The impact occurred in the north half of Highway 40. Plaintiff’s case was submitted under the humanitarian doctrine and hypothesized defendant’s negligence in the operation of her car (in addition to the usual requirements of such an instruction) in failing "to have slackened its speed and changed its course in a manner so as to have avoided colliding with the pickup truck being operated by plaintiff’s husband.”

The casualty in question occurred on October 3, 1958, at about 4 p. m. The day was clear and the highways dry. At the intersection Highway 40 was 24 feet wide and Highway 127 was 21 feet wide on the north side and 25 feet wide on the south side of Highway 40. There were stop signs for traffic entering the intersection from Highway 127. An overhead “blinker” light flashed red for traffic on Highway 127 and amber for traffic on Highway 40. East of the intersection for traffic approaching on Highway 40 was a “Slow” sign at 300 feet and a “Junction Ahead” sign at about 1,000 feet. A driver approaching from the east could see the intersection for at least 300 feet. The highways at this point are more or less level, although the approach from the east on Highway 40 is very slightly downgrade.

In the opinion of the highway patrolman, the impact occurred near the north edge of Highway 40. However, two other witnesses gave testimony indicating that the front wheels of the truck were about two feet north of the north edge of the pavement. No witness heard defendant sound her horn or heard the squeal of her tires nor saw any tire marks on the pavement. The patrolman stated that the truck was 16 or 17 feet long. After the collision the truck was on the north half of Highway 40, but defendant’s car continued in a northwesterly direction for 150 feet before coming to rest on a vacant lot. Plaintiff’s husband was badly injured in the collision and died five months later without having regained consciousness.

William Driver testified that he operated the service station on the southwest corner of the intersection; that he did not see either car before the collision but was working about 70 feet away when he heard “an explosion”; that he looked up and saw Mr. Trautmann come out of the truck “like he had been shot out of a cannon.” The witness immediately went to the scene of the collision and, in his testimony, described the location of the vehicles after the collision and other facts which have been heretofore stated in a general way.

Glen LaRue was also at the Driver Service Station. He testified that Mr. Traut-mann stopped his truck at the service station and talked with him for a time before proceeding across the highway; that decedent’s appearance was normal and that he appeared to be sober. This witness did not actually see the collision and the remainder of his testimony is substantially the same as that of Mr. Driver.

An eyewitness to the collision was Earl Fain who was sitting in his car which was parked facing north on the west side of the driveway going into Dooley’s Cafe (north of Highway 40) about 100 feet east of the east edge of Highway 127. He testified that he saw Mr. Trautmann stop at the service station and then move his truck up to Highway 40 and stop; that he then put his truck in gear, “he didn’t launch out there, he just let it barely start off”; that he then saw defendant’s convertible approaching the intersection about 50 feet east of his car; he then looked toward the Trautmann truck and saw the two vehicles collide; that in crossing the intersection Mr. Trautmann was in the “center lane” and “was not driving fast.” Upon cross-examination admissions were obtained from this witness which tended to weaken or impeach his testimony but since, in determining whether plaintiff made a submissi-ble case we view the evidence in the light most favorable to her (and the matters of impeachment were not such as would wholly destroy the testimony), we will not extend this opinion by including those matters of impeachment.

Defendant did not testify but plaintiff read portions of her deposition as admissions. In such testimony defendant stated that she was driving from Columbia to Kansas City; that as she entered Sweet Spring's she was traveling about 45 m. p. h., but at the time of the impact she guessed she “was going 35 to 40 m. p. h.”; that the brakes and steering mechanism on her car were in good condition; that from the time she became aware that the truck was crossing the highway it was a couple of seconds before the impact occurred; that she saw the truck when the front wheels went onto the highway; that the truck was moving “slow but even”; she didn’t believe it was increasing speed; that when she saw the truck coming across she put her foot on the brake immediately and pulled to the right of the road so that her right front wheel was on the shoulder. The following questions and answers were also read by plaintiff: “Q. Well, you say you did slow down for the intersection? A. Yes, sir, I did. Q. You had your foot on the brakes, then, is that right? A. Yes, sir.” In an effort to explain the last question and answer defendant’s attorney read the following: “Q. Did you have it on there before he started on the highway? A. No, sir, I hadn’t had it on there before I was aware of him at all. I had already slowed down before this time.”

Plaintiff presented as an expert witness Sergeant Frank Wessling of the Kansas City Missouri Police Department who had been assigned to the accident investigation unit of that department for 15 years. He testified that he had made an examination of the intersection where the instant collision occurred; that a car going 40 m. p. h. would travel 118 feet in two seconds, and at 35 m. p. h. it would travel 104 feet in that length of time; that at 40 m. p. h. a car would travel 44 feet during reaction time and could be stopped in a total of 120 feet; that at 35 m. p. h. the total stopping distance would be 96 feet; that if the driver already had his foot on the brake the car, at 40 m. p. h., could be stopped in 105 feet, and at 35 m. p. h. in 84 feet.

The only witness offered by defendant was Harry Dyer, Jr., who was driving a car in the same direction as defendant’s and about 175 feet to the rear thereof. He testified that he saw the pickup enter and come across Highway 40 in a northeasterly direction; that he saw the brake lights on defendant’s car go on; that defendant had pulled almost completely onto the north shoulder when she hit the truck; that he applied the brakes on his car and pulled into the eastbound lane and went around the truck and then parked his car. On cross-examination this witness identified a statement which he had signed and given to defendant’s insurance company shortly after the casualty. He admitted that in this statement he stated that he saw the pickup truck stop south of the intersection when his car was 900 feet away and defendant’s car about 700 feet away; that there were no eastbound vehicles at the intersection at that time.

On re-direct examination defendant’s counsel brought out that the witness, in the statement, said that he didn’t believe the convertible was over 100 feet away when the pickup started northward. On recross-examination the witness stated that he did not have any judgment “at this time” as to the distance the convertible was to the east of the pickup truck at the time it started to cross the highway.

Plaintiff offered the deposition of Hazel Luetgen and presented proof that Mrs. Luetgen was residing in Sweet Springs, Missouri at that time. Defendant objected to the deposition on the ground that “the unavailability of the witness has not been established.” The court sustained the objection. We think the court clearly erred in excluding that deposition. We take judicial notice of the fact that Sweet Springs is located in Saline County. The trial was held in Jackson County. Civil Rule 57.29, V.A.M.R., authorizes the reading of a deposition if the witness “resides in a county other than that in which the trial is held.” The proof herein complied with the quoted requirement of said rule and the reading of the deposition was accordingly authorized.

Defendant, however, says that any error in excluding the deposition was not prejudicial because the testimony contained therein was not favorable to plaintiff. We do not agree. Mrs. Luetgen was an eyewitness to the collision and also corroborated the testimony of Mr. Fain as to the location of the car in which he was seated. Mrs. Luetgen testified in her deposition that she was driving a car which she stopped at the north edge of Highway 40 about 100 feet “or a little more” east of Highway 127; that she was waiting for two westbound cars to pass so that she could then cross the highway and go to her home in Sweet Springs; that she looked up and saw the yellow car (defendant’s) right in front of her car and at the same time saw the Trautmann truck in the center of Highway 40, and that they collided immediately thereafter. We think the testimony of this witness is important and aids the plaintiff because she is the only witness who testified definitely as to the location of both vehicles at a time when deceased was unquestionably in a position of imminent peril. In determining whether plaintiff made a submissible case we will consider the testimony of Mrs. Luetgen in the same manner as if it had been admitted.

We have concluded that plaintiff made a submissible case. It is our opinion that a jury could reasonably have found all of the facts stated in this paragraph. The evidence would warrant a finding that decedent was in a position of imminent peril at the time his moving truck crossed the center line of Highway 40. At that point it became apparent that he was oblivious to the danger of a collision with defendant’s car. There was evidence from which it could be inferred that when defendant’s car was 100 feet to the east the front of the truck was about eight feet north of the center line. The truck had started in gear from a stopped position and was slowly crossing the highway. It had traveled slightly more than 12 feet before decedent came into a position of imminent peril. In view of that evidence it is reasonable to assume that it was traveling about five m. p. h. or 7.35 feet per second. At least one second elapsed after decedent was in imminent peril before defendant arrived at a point 100 feet to the east. At 45 m. p. h. defendant’s car was traveling 66 feet per second. Therefore, a jury could reasonably have found that defendant was 166 feet away from the point of impact when decedent came into imminent peril. There is no evidence of the stopping distance of a car going 45 m. p. h. but there was testimony that a car going 40 m. p. h. could have been stopped in 120 feet. If a car going 40 m. p. h. could have been stopped in 120 feet, we think a jury could reasonably infer that a car going 45 m. p. h. could have been stopped within 166 feet. However, avoidance of the collision by stopping defendant’s car was not submitted and hence was abandoned. Nevertheless, that evidence would reasonably warrant a finding that defendant, in 166 feet, could certainly have slackened the speed of her car sufficiently to have given decedent’s truck time (about 2 seconds) to clear the south lane of the highway so that she could have then turned her car to the left and thus have avoided the collision.

Other items of evidence appearing in the statement of facts support our view that plaintiff made a submissible case, but we consider it unnecessary to specifically discuss and analyze additional theories supporting submissibility.

Since the judgment must be reversed and the cause remanded for a new trial because of error in excluding the deposition of Hazel Luetgen, we deem it unnecessary to discuss the contention that the court erred in giving certain instructions. Prior to another trial counsel for defendant will have an opportunity to re-examine those instructions and if it is considered advisable to offer them at another trial they may make such corrections therein (particularly as to Instruction 4) as may be considered necessary in view of the attack made thereon by plaintiff.

Reversed and remanded.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HYDE, Judge.

text:
    Louis VANACEK, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
    No. 48474.
    Supreme Court of Missouri, En Banc.
    June 11, 1962.
    Rehearing Denied July 16, 1962.

      William M. Corrigan, St. Louis, for appellant.
    Edmund W. Albright, William L. Mason, Jr., St. Louis, for respondent.
   HYDE, Judge.

Plaintiff obtained judgment for $50,000.00 for personal injuries, sustained when the motorcycle he was riding as a member of the Metropolitan St. Louis Police Force went out of control, allegedly as a result of a defect existing in the surface of North Broadway between the rails of a streetcar track. Defendant has appealed and contends that the trial court erred in refusing to direct a verdict for it at the close of all the evidence for the reason that defendant had no duty to plaintiff to maintain the street at the place in question at the time of his injury.

An opinion written in Division One did not receive a majority vote and the case was transferred to Banc. The following statement of facts from the divisional opinion is set out, without quotation marks, and adopted with some additions. In April 1940 the Board of Public Service of the City of St. Louis issued a permit of indefinite duration (in effect at the times in question) to defendant to continue operation over and maintenance of existing street railway tracks and appurtenances located upon certain public streets in St. Louis including North Broadway. By charter and ordinance, St. Louis required defendant to keep the street between the rails of its tracks, and to the extent of at least 12 inches outside each rail, in perfect repair and as nearly on a level with such rails as practicable.

In July 1956 the Missouri Public Service Commission, pursuant to defendant’s application and after extensive findings of fact, entered its order permitting defendant “to abandon the street railway tracks of its Broadway car line (Route No. 40) and all streetcar service thereover,” except tracks used in connection with the operation of other streetcar lines (not here involved) and upon the condition that defendant substitute motorbuses not later than September 30, 1956. That order was dated July 17, 1956, and was effective July 27, 1956. Seven days after the order’s date, defendant and the city entered into a contract which recited defendant’s application to the commission, the commission’s order, and that the city and the company desired to agree “for the purpose of settling and determining the Company’s obligations at the time of the abandonment of said street car service pursuant to said Commission proceedings, with respect to the abandoned street car tracks of the said Broadway Car Line, located in paved streets in the City of St. Louis, the disposition of poles, wires, tracks, and other appurtenances thereof, and the question of title to such property, and other matters * * The agreement then provided that when the company abandoned the tracks and service on route 40, defendant was to give formal written notice thereof to the Director of Streets and Sewers and deliver a check to the city in the sum of $125,780.00 to be used by the city in maintaining, surfacing and otherwise improving the abandoned track areas and any remainder would be used to repair roadway paving at bus stops. The agreement further provided that after such formal notification the city would assume responsibility for any resurfacing of the abandoned car tracks and title to all said tracks including the rails, ties, and other track fixtures and appurtenances “is hereby vested to the City and the City assumes full possession and control thereof (this agreement being construed as a quitclaim deed thereto), and from said date forward the Company and its successors and assigns are relieved of all future liability of the maintenance, repair or removal of said tracks and all paving obligations incidental thereto * * ⅜.”

In a letter dated August 31, 1956, defendant formally notified the city of its abandonment of service and trackage as of August 20 and enclosed a check to the city in the amount above noted, which check was received by the comptroller on September 4, 1956. However, the city had made no changes or repairs in the area where plaintiff was injured before the time of his injury.

In the afternoon of October 13, 1956, plaintiff, in pursuit of a suspected speeder, was operating his motorcycle north on North Broadway near Dickson Street and between the rails of the northbound streetcar track when he lost control of the motorcycle, fell from it and was injured. As plaintiff proceeded north for four or five blocks his motorcycle was about midway between the rails of the northbound streetcar track and he was gaining slightly on the automobile, attempting to get in a position to check its speed without calling attention of the driver to the fact that he was being pursued. When he reached a place about 20 feet or so south of Dickson Street, his motorcycle ran into a depression or rut (about four or five inches wide and two or three inches deep) running parallel with and along the inside of the east rail of the northbound track for a distance of several feet. Within a few feet thereafter, the motorcycle struck a galvanized sheet metal plate about a foot long by six inches wide, and a fraction (perhaps ⅛⅛) of an inch thick. An end or corner of that plate was wedged under the east rail and the plate protruded generally westwardly through the rut and out of it onto the surface of the street. Apparently the metal plate had been run over by heavy vehicles. In any event, it was flat against and conformed to the irregularities of the area it covered. There was no evidence that defendant was responsible for the presence of the metal plate. The motorcycle went out of control, traveled northeastwardly and struck Broadway’s east curb. Plaintiff was thrown to the sidewalk at a place about 141 feet northeast of the metal plate.

Broadway’s surface at the area in question (including the area from Franklin to Dickson), both to the east of the east rail and between the rails of the northbound track, was paved with cobblestones which had been covered in some areas with asphalt. The street’s surface was rough and at places was somewhat rougher between the northbound rails than it was east of the track. Plaintiff had traveled the portion of Broadway in question many times and was familiar with the fact that the street’s surface was rough and that care was required to traverse it safely on a motorcycle. He had increased his speed so that at the time of the accident he was going 35 or 36 miles per hour. He did not sound his siren or operate a red light. At the time the motorcycle entered the rut plaintiff was attempting to watch the automobile ahead of him and his speedometer, and at the same time pay some attention to his direction and the condition of the street. The evidence indicates the rut had existed for some time before the date of the contract between defendant and the city; and we consider it was shown that the condition of the rut at least was a concurring cause of plaintiff’s motorcycle taking the course it did.

“A fundamental test of whether one person has a cause of action in tort against another is: Did the person, sought to be held liable, owe to the person, seeking to recover, any duty, to do something he did not do, or not to do something he did do ? If so, his failure to do what he ought to have done or his doing what he ought not to have done constitutes a legal wrong, whether it be intentional or merely negligent, for which the person injured thereby can recover, except where his own fault is a contributing cause.” Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104, 110. As stated in the dissenting opinion in Division: Actionable negligence is negligence to the particular person injured. The basis of an action for negligence must be a violation of plaintiff’s own right. 38 Am.Jur. 660, Negligence, Sec. 18; 65 C.J.S. Negligence § 4, p. 332. The obligation must be due from defendant to the person injured. Davidson v. St. Louis & San Francisco Ry. Co., Mo. Sup., 229 S.W. 786, 788; Karr v. Chicago, R. I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44, 49, and cases cited. It is not enough to show that the obligation was to another person or class, and that if performed as to them, plaintiff would not have been injured. “The wrongfulness of an act is found in its probable effect upon persons who are in some relation to the actor. As to unrelated parties, the happening is a pure accident. Facts which create a relation and therefore a duty as to one person do not establish the same obligation to all mankind. Accordingly, to be within the right created, the complaining party must show facts which make the reason for claiming a relationship applicable to him.” 38 Am.Jur. 661. In some situations the duty to use due care is general and owing to everybody. “A duty, however, which is owing to everybody cannot serve as the basis of an action for negligence until some individual is placed in position which gives him occasion to insist upon its performance.” 38 Am.Jur. 661, Negligence, Sec. 19. It then becomes a duty to him personally. 3 Cooley on Torts, 4th Edition, Sec. 478, page 366; Upp v. Darner, 150 Iowa 403, 130 N.W. 409, 410, 32 L.R.A.,N.S., 743.

Defendant public service company owed the general traveling public a duty to keep the street in repair as long as it enjoyed its license as a carrier to operate its Broadway streetcar line. During the time it owed that duty, however, plaintiff was not placed in a position which gave him occasion to insist upon its performance. It was not until the relationship between the carrier and the public came to an end and the duty no longer existed that plaintiff’s injury occurred and his rights arose. When plaintiff was injured, defendant had no duty to anyone to repair the street along the streetcar tracks. It no longer owned or used the tracks and had no right, authority or duty to make any alteration, change or repair of the pavement of the street where they were. The city had taken over the tracks, become the owner of the rails, and it alone had the right, authority and duty to-repair the street and keep it in good condition. See Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006; Burow v. St. Louis Public Service Co., 339 Mo. 1092, 100 S.W.2d 269; Cummings v. Halpin, Mo. App., 27 S.W.2d 718; Foster v. Kansas City, 114 Mo.App. 728, 90 S.W. 751. An action for negligence will not lie unless it appears that there existed, at the time of the injury, some legal duty or obligation on the part of defendant toward plaintiff, which defendant did not perform. (Emphasis ours.) 38 Am.Jur. 652, Negligence, Sec. 12; 83 C.J.S. Street Railroads § 302b, p. 446 ; 65 C.J.S. Negligence § 186a, p. 872; The Evansville and Terre Haute R. R. Co. v. Griffin, 100 Ind. 221, 222. At the time of plaintiff’s injury, defendant not only owed no duty with respect to street repair to any member of the public but had no> right whatever to make repairs. Therefore, plaintiff’s only recourse was against the city under its duty to maintain the streets in a reasonably safe condition for the traveling public. Foster v. Kansas City, supra. We base our decision on complete lack of any duty and not on any theory of intervening cause.

Plaintiff relies on a breach of duty at the time when defendant did have the duty to repair; and cites A.L.I. Restatement of Torts, Sec. 433, Comment h at pages 1170-1171 as follows: “Experience has shown that where a great length of time has elapsed between the actor’s negligence and harm to another, a great number of contributing factors may have operated, many of which may be difficult or impossible of actual proof. Where the time has been long, the effect of the actor’s conduct may thus, become so attenuated as to be insignificant and unsubstantial as compared to the aggregate of the other factors which have contributed. However, where it is evident that the influence of the actor’s negligence is still a substantial factor mere lapse of time, no matter how long -is not sufficient to prevent it from being the legal cause of the other’s harm.” However, this does not say it applies to a party’s failure to act (nonfeasance), which caused no injury while such party had a duty to act, but where instead the injury resulted from the later failure of another to act (who then had the duty to act) after the duty to act of the party sought to be held had terminated. As to a force put in motion, the actual creation of a dangerous condition or the concealment of a dangerous condition the situation would be different. (See Secs. 352, 353, 354, 373, 374, 375, 376, Restatement of Torts.) The principles stated by these sections, as between vendor and ven-dee of land, are that the vendor is not liable to the vendee or others for any existing dangerous condition (after the vendee takes possession) unless the vendee does not know of it and the vendor does know of the condition and the risk involved and has reason to believe the vendee will not discover the condition and realize the risk. See also Combow v. Kansas City Ground Inv. Co., 358 Mo. 934, 218 S.W.2d 539, 541, 8 A.L.R. 2d 213, Annotation, 8 A.L.R.2d 218. Under these principles, a vendor, who has permitted land to be in dangerous disrepair, is liable to persons outside the land (after the vendee takes possession) only if the vendee does not know of the condition and the vendor does know of it and conceals it or fails to exercise reasonable care to disclose it to the vendee when he has reason to believe the vendee will not discover it. It is our view that the same principles are logically and reasonably applicable to the situation presented in this case. Here such condition as existed was not created by any affirmative action of defendant but was no more than a condition of disrepair (apparently the result of wear from use) and one that was open and obvious. Thus there was no reason to believe the city would not know as much about it as defendant especially since it had taken title to the tracks and had been paid a large sum by defendant for the very purpose of repairing this street.

These principles also provide the answer to plaintiff’s claim that the city could not by contract relieve defendant from liability for failure to repair prior to the date of the contract, arguing that this would be an unconstitutional exercise of power, against public policy and in the nature of an ex post facto law. This contention fails to recognize the principles upon which defendant’s liability must be based, namely duty to repair at the time of the injury, and that when duty to repair ends liability for future injury due to disrepair ends, unless there is concealment or some other circumstances such as those hereinabove discussed. There were no such circumstances in this case and we hold defendant was not liable for plaintiff’s injuries.

The judgment is reversed.

EAGER, STORCKMAN, LEEDY and DALTON, JJ., concur.

WESTHUES, C. J., and HOLLINGS-WORTH, J., dissent.


author: BARRETT, Commissioner.

text:
    Wanda F. SHROCK, Cecilia Michele Shrock and Stephanie Robin Shrock, Respondents, v. WOLFE AUTO SALES, INC., Appellant.
    No. 48933.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.

      Chapman & Chapman, Nolan Chapman, Chillicothe, for appellant.
    Stephen J. Millett, Kingston (Knipmeyer, McCann & Millett, Kansas City, of counsel), for respondents.
   BARRETT, Commissioner.

Upon the claim that her husband, Robert M. Shrock, died as the result of injuries arising out of and in the course of his employment (V.A.M.S. § 287.120) as a salesman for Wolfe Auto Sales the Industrial Commission made an award of $15,500 to Mrs. Shrock and their dependent children, Cecilia, age 6, and Stephanie, age 4. The employer, Wolfe Auto Sales, has appealed from a judgment of the circuit court affirming the award of the commission, and in the circumstances this court has jurisdiction of the appeal. Conley v. Meyers, (Mo.) 304 S.W.2d 9, 10.

Basically, the appellant’s claim is that there was not sufficient competent evidence to warrant the making of the award. Specifically, the employer contends that by circumstantial evidence it was established that Shrock’s injury and death did not occur “in the course of his employment” (V.A. M.S. § 287.120) and that, therefore, the dependents’ claim was not compensable as a matter of law. The parties have rather expensively briefed the general rules applicable to compensation cases and their review by appellate courts, but it would serve no useful purpose to again encumber an opinion with a repetition of the rules. It is sufficient to list by way of illustration a few of the cases in which the rules were .recently set forth. Corp v. Joplin Cement Co., (Mo.) 337 S.W.2d 252; Monical v. Armour & Co., (Mo.) 307 S.W.2d 389; Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28. In Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, a case relied upon by the appellant, there was no conflict in the evidence, the facts were undisputed, and so this court in 1935 declared as a matter of law that Maltz was not an independent contractor. In connection with that case, however, there should be the caveat that since 1935 there has been a change in the scope of review as well as to the effect to be attributed to findings of fact by the commission. Const. Mo., Art. 5, Sec. 22, V.A.M.S.; V.A.M.S. § 287.490, subd. 1(4), Laws of Mo.1955, p. 598. And, as the court pointed out in that case, even in 1935, the claim that the question involved was one of law “seems academic rather than substantial in the light of the controlling statute” and, since 1945, the constitutional provision which now governs the scope of this court’s review.

Wolfe Auto Sales has a Chrysler franchise in Brookfield, Linn County. Robert M. Shrock, age 33, was a full-time employee of the Burlington Railroad and, admittedly, was also employed by Wolfe Auto Sales as a salesman of automobiles. In the year prior to his accident and death on December 10, 1959, he earned and was paid $4,207.84 in commissions by Wolfe. According to Willard Wolfe there was no limitation on Shrock’s working hours, he could demonstrate and sell automobiles any time he saw fit and had in fact sold cars at night. He personally owned the 1960 Chrysler demonstrator he was driving on December 10 but it bore Wolfe’s dealer’s license tags D 491 and was a demonstrator. Donald and Edith Admire owned and operated Lane’s Inn, a restaurant and package liquor store, just outside the southeast city limits of Brookfield on Highway 36. On December 10, 1959, Shrock came home from a Burlington run about 7:30 in the evening. He gave the children a bath, took a bath himself, changed clothes and left home in his 1960 Chrysler demonstrator at 9:30, announcing to his wife that “ ‘He had to see a man about a car.’ ” He arrived at Lane’s Inn about 9:45 and talked to both Don and Edith Admire. According to Mrs. Admire “we had talked about buying an automobile from him,” and she said, “He was trying to sell us a 1960 Chrysler.” Upon his arrival at Lane’s Inn, Mrs. Admire said, “He asked both of us to go for a ride in it and we both told him that we couldn’t get away, both at the same time.” Mrs. Admire was busy waiting on customers and Shrock continued his conversation with Don. Shrock left Lane’s Inn at 10:45 and at 11:30, 3.1 miles west of Meadville Junction, 15 miles from Brookfield, the 1960 Chrysler traveling west crashed into the .rear of an automobile stopped on the pavement, killing both Shrock and Admire. Shrock’s carcoat and brief case were found in the wrecked automobile and two or three days later were returned to Mrs. Shrock by Willard Wolfe. The brief case was one he usually carried in connection with the sale of automobiles, it contained an order book, Chrysler literature and finance papers. On their face, these noted circumstances warrant and substantially support the commission’s finding that Shrock’s accidental injury and death arose out of and in the course of his employment. Conley v. Meyers, (Mo.) 304 S.W.2d 9 (an automobile salesman case) ; Lewis v. Lowe & Campbell Athletic Goods Co., (Mo.) 247 S.W.2d 800; Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28; Dehoney v. B-W Brake Co., (Mo.) 271 S.W.2d 565 (all salesmen cases). The problem here is whether certain additional circumstances, relied on by the appellant, overwhelmingly and necessarily compel a contrary conclusion.

Perry Wolfe, a vice-president and salesman, said that “we formulated a demonstration plan. Everyone has their own style of selling but I kind of told them my personal ideas of demonstration and how it should be done.” The important thing was a demonstration aimed chiefly at enticing the customer into driving the automobile. To conserve time and get back on the floor to another customer, “you try to make the route as short as possible.” According to Perry Wolfe, “We make a demonstration route of approximately two miles around Brookfield, and this route we change drivers and the prospective customer drives the car back to town. That’s our route.” Then there was another practice, chiefly to protect salesmen, of salesmen reporting the names of any prospective customers to Wolfe’s office, and Shrock had not reported the Admires as prospects. Then too, in addition to Shrock’s carcoat and brief case, there was also found in the wrecked Chrysler two boxes containing a man’s clothing, both summer and winter clothes. These clothes were later picked up by or given to Mrs. Admire and, contrary to the respondents’ assertion, the only fair inference from the record is that the clothes belonged to Don Admire. The appellant points to this additional evidence and to the fact that the collision occurred IS miles west of Brookfield and urges that they circumstantially establish that “the only logical and reasonable ■conclusion is that deceased was not doing anything for his employer at the time of the fatal collision,” or, in short, that the Industrial Commission “could not have reasonably reached the conclusion it did reach.”

There is of course no objection to the proof of either a claim or a defense to a claim by circumstantial evidence (100 C.J.S. Workmen’s Compensation § 547(5), p. .595; Mulcahy v. Terminal R. Ass’n, (Mo.App.) 123 S.W.2d 235), but, neither may a fact be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture. 100 C.J.S. Workmen’s Compensation § 547(3), p. 590. In connection with the evidence relied on by the appellant there were these additional circumstances and factors. The failure to report the names of prospective customers would not prevent a sale and the demonstration instructions were not in writing and so far as appears here were only advisory. And, Wolfe Auto Sales had demonstrated and sold automobiles in Chillicothe, North Kansas City and elsewhere outside Linn County. While the two boxes of clothes belonged to Admire, there is no evidence as to why they were in the Chrysler or how they got there. As to all the evidence, conflicting inferences may have been permissible but if so the commission had a choice (100 C.J.S. Workmen’s Compensation § 763(5), p. 1202) as it does with the credibility of witnesses and the weight to be given conflicting testimony. Monical v. Armour & Company, 307 S.W.2d, 1. c. 394. Dehoney v. B-W Brake Company, 271 S.W.2d, 1. c. 569, 570, is particularly apposite: “Although there was no direct evidence introduced tending to show the actual activities of Employee for several hours preceding the fatal accident, there was no direct evidence that, during that period of time, he had unnecessarily and unreasonably departed from and had abandoned his duties to his employer. He was at a place where he reasonably could have been, in view of the broad duties to which he had been assigned as disclosed by the evidence. * * * Although the inference (that he was returning to his lodging from a place where he had been engaged in selling or analyzing sales conditions) is not especially a strong one — it is not supported by direct evidence — yet we think the inference that he had been so engaged is supported by substantial evidence circumstantially. * * * In our view, the Commission was justified in believing, as it probably did, that Employee, when on the trip herein involved, was at a place where he might reasonably have been when he was anywhere within the general area, at least anywhere within the confines of his territory extending two hundred miles from Kansas City. * * * And it would seem the evidence, negative in character (that an investigation failed to reveal the whereabouts and the activities of Employee during the several hours preceding the accident), was not of such weight as to preclude or destroy the inference of compensable accident. * * * Anythow, there was little or no factual support for an inference that he had abandoned his employment and had been engaged in any independent personal mission of his own.” In conclusion, as indicated, the evidence supports the inference and finding that Shrock came to his death as the result of an accident arising out of and in the course of his employment and, therefore, the commission’s award is not plainly contrary to the overwhelming weight of the evidence. Accordingly, for the reasons indicated, the judgment is affirmed.

BOHLING and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.