Opinion
No. 27965.
March 20, 1951.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, ROBERT J. KIRKWOOD, J.
Carroll J. Donohue, and Salkey Jones, all of St. Louis, for appellant.
Keegan Rickhoff, and Gregg Wm. Keegan, all of St. Louis, for respondent.
This is an action in which the plaintiff seeks damages arising out of personal injuries that he claims to have sustained when one of defendant's streetcars struck the rear of a truck in which he was a passenger. There was a verdict and judgment for the plaintiff in the sum of three thousand dollars and after moving for a new trial the defendant in due time brought this appeal.
There seems to be no dispute about certain facts concerning the collision. The streetcar was traveling south on Jefferson Avenue and, at the intersection of Delmar Boulevard, the truck in which the plaintiff was riding was to the west of the streetcar, and headed in the same direction. At Delmar Boulevard there is an automatic traffic signal and both the truck and the streetcar were stopped there waiting for the light to change from red to green. When it changed the truck pulled out in front of the streetcar and started southwardly again. There were two automobiles in front of the truck and the first one was stopped a short distance past Delmar with the apparent intention of turning it to the left into an alley that intersects Jefferson Avenue. This caused the automobile immediately following to stop and the truck which was the third vehicle in line came to a stop behind the second. The truck was then struck by the southbound streetcar and the impact pushed it forward four or five feet. Plaintiff claimed that the force with which the truck was struck caused him to be thrown back in the cab of the truck so that his head struck the window in the rear of the cab with resulting injury.
The owner and driver of the truck was Oscar Narens, the plaintiff's father. He was engaged with his brother in the tuck-pointing business and his son, the plaintiff, worked for them. All three were seated in the cab of the truck with the plaintiff between his father and his uncle.
According to Oscar Narens, as his truck stood at the Delmar intersection of Jefferson Avenue, waiting for the go signal, the tailgate was about even with the front of the streetcar. When the signal changed he started up, following the two automobiles which were in front of the streetcar, and turned on the streetcar tracks. When he saw that the lead automobile was going to stop to make a left turn he put out his hand and signaled that he was going to stop. When he was fully stopped with his brakes set he saw the streetcar about sixty feet behind him. As it came closer he saw that it would hit the truck and he shouted a warning just as the collision occurred.
The plaintiff introduced as part of his case in chief a deposition of R. G. Craft, the operator of the streetcar, in which Craft said that the accident happened about fifty feet south of Delmar Boulevard. He stated that the streetcar had not reached a speed of more than eight miles an hour at any time before the accident and that when the truck stopped in front of it there was about thirty or forty feet between them. He said that the driver of the truck was obliged to stop it because one of the automobiles in front of him came to a stop and that the truck was stopped suddenly. He stated that the streetcar was equipped with air brakes and although they were in good condition he noticed the car would slide when the brakes were applied. According to the deposition the witness also testified that the streetcar traveling at the rate of eight miles per hour could be stopped, under the conditions present at the time of the accident, with safety to the passengers, in a distance of five or six feet.
The nature and extent of the injuries that plaintiff is said to have sustained need not be set out as no point is raised that in any way relates to them.
The defendant called a witness who was an expert in the operation of streetcars and in answer to a hypothetical question he testified that it would have taken from sixty to eighty feet to bring the car to a stop from a speed of eight miles per hour under conditions present at the time and place of the accident.
The defendant also called to the stand the wife of the streetcar operator who testified that her husband was on a hunting trip and could not be reached either by telephone or letter.
Before going to trial, the defendant moved for a continuance because of the absence of Roy G. Craft, who was the operator of the streetcar and claimed by defendant to be a material witness. The affidavit asserted that the witness, if present, would testify to certain facts which are as follows:
"On May 2, 1949, at approximately 7:55 in the morning I was operating a Jefferson Avenue Streetcar southbound on Jefferson between Lucas and Delmar at a time when it was involved in an accident with a truck. I first saw the truck involved in the accident when it was pulled up along side of me when I was stopped at Delmar Boulevard. The truck started in motion southbound at the same time that I started the streetcar in motion. The path of the truck was apparently blocked by an automobile in the regular southbound traffic lane, so the truck pulled over in front of my streetcar on the tracks. At a point about fifty feet to the south of Delmar the truck was brought to a sudden stop. At that time I was about thirty to forty feet in rear of the truck and traveling about eight miles an hour. The front end of the streetcar struck the tail-gate of the automobile and traveled one or two feet after the impact. There was no damage to the streetcar and the damage to the truck consisted of a bent tail-gate. I had sounded a warning after crossing Delmar on several occasions. The impact between the two vehicles was a very light impact. There were three people riding in the cab of the truck involved in the accident."
The plaintiff admitted that if the operator were present he would testify to the statements set forth in the application for a continuance and the continuance was denied.
After the defendant had rested it requested permission to reopen the case in order to call to the stand a reporter who had taken Craft's deposition; stating that there had been an error in transcribing the notes and that the reporter would testify that Craft had really said the streetcar could be stopped in fifty to sixty feet and not in five to six feet as written. Upon objection by plaintiff's counsel, the court denied defendant's request.
In final argument counsel for defendant said:
"Now, Mr. Keegan read from a deposition that in examining this man he said that he could stop that car within five or six feet, going eight miles an hour. That doesn't sound reasonable to me. I questioned it. I remember objecting to the introduction of that at the time, and pointing out that it said it was an emergency stop that was being described. Surely it did recite all of that matter about safety to the passengers and the like; but, in my own mind, I can't reconcile stopping a streetcar going eight miles per hour, loaded with thirty people, within five or six feet.
"I say that, in my opinion, there is an error in that, somewhere along the line. Maybe in transcribing that record. I don't know where it came in. I think it should have been fifty to sixty feet."
Plaintiff's counsel in his argument made the following statements:
"Now, isn't it a little unusual that he should tell you that there is a mistake in the distance within which this motorman could stop? The motorman is down here at Sullivan, Missouri; that is only seventy miles away. If he thought there was such a serious mistake — * * *
"Don't you think for a moment if they thought their motorman would get on the stand and make a good witness for them, they would have had him here? * * *
"If they would have thought that man would have said anything other than what he did say that he could stop at any time within five to six feet, and he saw this car, and it was out there in front, and he could stop at any time from five to six feet, yet he went thirty or forty feet and hit it, ladies and gentlemen, they are liable in this case; there is no dispute about that.
"I want you to take a good look and see what the Public Service Company has brought you in this case. The motorman: they didn't bring him — that is their witness; he is still their employee. * * *
"In this case, the deposition of this motorman was taken as far back as last May; they knew this case was going to trial. Isn't it a little unusual that he should go hunting just about this time of the year? Isn't it a little unusual that he isn't here?"
Counsel for the defendant objected to this line of argument and moved for a mistrial but his objections were overruled.
The defendant contends that the court erred in refusing to allow it to reopen the case. Before the request was made both sides had announced to the court that they had presented all of their evidence, but the jury had not yet been instructed.
The case was later submitted to the jury on the humanitarian theory, predicating a verdict for the plaintiff on a finding that the defendant's operator could have seen the plaintiff in a position of imminent peril in time thereafter to have stopped the car with safety to its passengers. It is therefore apparent that if there was an error in transcribing the deposition so that the stopping space was written as five or six feet when it should have been fifty or sixty feet, evidence of that error went to the very substance of the action. This is obviously true for the operator of the streetcar said that as the truck stopped the streetcar was only thirty or forty feet behind it, and if the streetcar could not then have been stopped in time to have avoided the collision the defendant would not be liable for failure to stop even though the operator might have been negligent in other respects. The question which confronts us, therefore, is whether or not the trial court under such circumstances properly denied the defendant the privilege of reopening its case in order to present evidence essential to its defense.
When either party to an action requests the trial court to reopen a case for the purpose of presenting additional testimony the court must exercise its discretion in granting or refusing the right to put on additional evidence. As in other cases, where the trial court is called upon to exercise its discretion, the appellate courts will not interfere unless it appears that the action taken by the trial court amounts to an abuse of the discretion it is charged with exercising.
No rule of law can be stated which would serve to exactly evaluate the soundness of a discretionary act for each case presents its own complexities of facts and circumstances differing in varying degrees from others. Respondent, however, has cited us to some cases that he considers analogous. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Newell v. Wagner Electric Mfg. Co., 318 Mo. 1031, 4 S.W.2d 1072; Bickel v. Argyle, 343 Mo. 456, 121 S.W.2d 803; State v. Smith, 80 Mo. 516.
In the case of Hecker v. Bleish, supra, the Supreme Court held that the trial court was guilty of no abuse in denying the defendant's request to reopen his case for the purpose of introducing further testimony, but it must be noted that in that case the request came four months after the trial of the cause and the evidence that the defendant desired to introduce was merely cumulative.
In Newell v. Wagner Electric Mfg. Co., supra, there was a like holding, but in that case the request came two weeks after judgment had been entered.
A somewhat similar situation is presented in Bickel v. Argyle, supra, which was a reference case, where a great amount of testimony had been taken and the Supreme Court held that the trial judge did not abuse his discretion in refusing to allow defendant to reopen his case for the purpose of offering further extensive testimony, after the referee had made his report.
Still another earlier case, State v. Smith, supra, held that the court properly refused to allow the case to be reopened for the purpose of taking the testimony of a witness that had not been subpoenaed and where no diligence had been shown to secure his attendance.
All of the other cases to which we have been cited deal with instances where the trial court granted the request to reopen the case and the appellate court has held the action taken was not an abuse of discretion. This presents the opposite phase of the situation and since the facts should be fully presented to the jury the court is much less likely to err in allowing the case to be reopened for additional evidence than it is in refusing to do so.
In Tierney v. Spiva, 76 Mo. 279, loc. cit. 281, the court stated: "There is nothing in the record before us to indicate that the testimony offered by the plaintiff and rejected by the court, was kept back by trick or for any unfair purpose, or that it was purposely withheld for any purpose, or that the defendant would have been deceived or injuriously affected by its admission. It related to one of the material issues in the cause, on which no testimony had been introduced, and was, so far as we can judge, omitted through the inadvertence of counsel, and such omission was in all probability first brought to their attention by the ruling of the court in sustaining the demurrer to the evidence. It can hardly be said that the discretion of the court has been exercised in furtherance of justice, when it compels a party under such circumstances to go out of court and begin his suit anew. Those rules for the orderly conduct of proceedings in courts of justice, which the law in its wisdom has placed somewhat in subjection to the discretion of the court must be enforced, or relaxed, by the court in furtherance of justice, and are not to be applied with such technical precision and unbending rigor as to produce injustice." See also: Blomeyer v. Willey, Mo.App., 151 S.W.2d 535; Devine v. Meramec Portland Cement Material Co., Mo.App., 253 S.W. 444; Owen v. O'Reilly, 20 Mo. 603; Rucker v. Eddings, 7 Mo. 115.
From a reading of the record it appears quite probable that counsel for defendant first became aware of the very obvious difference between the statement of the operator and the expert witness regarding the distance in which the streetcar could be stopped, after the expert had testified. It was probably then that he discovered the error that he desired to prove. There is nothing to suggest that to have allowed such evidence to have been introduced would have worked any unfair hardship on the plaintiff. The court, therefore, in the exercise of sound discretion should have allowed the case to be reopened and it erred in refusing the defendant's request.
Defendant also contends that the court erred in overruling its objections to the argument of plaintiff's counsel drawing unfavorable inferences from the failure of the operator to appear as a witness for the defense. As stated in Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, loc. cit. 514: "There is no dispute concerning the governing principle i.e., that no inference may be drawn, and no unfavorable comment made by counsel on account of the non-production of witnesses whose evidence is equally available."
As to the word "available" the Supreme Court stated in Blick v. Nickel Savings, Investment Building Ass'n, Mo. Sup., 216 S.W.2d 509, loc. cit. 512: "The term `available,' as used relating to a question of comment to be made or inference to be drawn upon non-production of a witness, does not mean merely available or accessible for service of compulsory process — a subpoena. Chavaries v. National Life Accident Ins. Co. of Tennessee, Mo.App., 110 S.W.2d 790. The question of whether a witness is `available' to one or the other of contending parties depends upon such matters as the one party's superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other."
Under the facts here, however, we cannot say that the operator was available to either party. Counsel for plaintiff, when he offered the deposition of the operator, stated: "The operator, at the present time, is in Sullivan, Missouri, and he is not in a position to appear here for this trial and, for that reason, we have to give you this paper proof, instead of his verbatim testimony."
Prior to the trial the defendant had sought a continuance because the witness was not available. Under these circumstances it appears that the remarks made by the plaintiff's counsel in his closing argument went beyond the bounds of legitimate advocacy. They cannot be excused as an answer to defendant's argument for defense counsel's remarks were confined to comment upon the evidence given. It must, therefore, be held that the court erred in overruling defendant's objections to the argument.
It is further contended that the court erred in refusing to give instruction designated "C" offered by the defendant. This instruction attempted to submit the question of whether the plaintiff's father was negligent in stopping the truck in front of the streetcar, and that such negligence was the sole cause of the collision without any concurring negligence on the part of the operator of the streetcar. All that the instruction has to say regarding the negligence that it seeks to hypothesize is as follows: "if you further find that after traveling approximately fifty feet south of the south curb of Delmar Boulevard the truck came to a sudden stop, if you so find, and in so doing the driver of the truck failed to exercise the highest degree of care and that such failure, if you so find, was the direct and sole cause of the collision" etc. If the truck driver was negligent it was in stopping so suddenly in front of the streetcar that the operator could not stop the streetcar with the means at hand and with safety to the passengers aboard in time to avoid the collision, and such facts should have been hypothesized. Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563, and cases therein cited; Pearson v. Kansas City Ice Co., Mo.Sup., 234 S.W.2d 783.
The question of whether or not the evidence supported such an instruction is also in the case but since there must be a retrial and the operator may be then available as a witness we need not pass upon this point. It suffices to say at this time that the court, for reasons stated, did not err in refusing the instruction.
Because of the errors noted in refusing to reopen the case for the submission of further evidence and permitting the attorney for the plaintiff to comment, as he did, upon the operator's absence as a witness, it is the recommendation of the Commissioner that the judgment be reversed and the cause remanded for a new trial.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.