Stearns v. Be-Mac Transport Co.

621 S.W.2d 539, 1981 Mo. App. LEXIS 2989
CourtMissouri Court of Appeals
DecidedSeptember 8, 1981
DocketNo. 41446
StatusPublished
Cited by7 cases

This text of 621 S.W.2d 539 (Stearns v. Be-Mac Transport Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stearns v. Be-Mac Transport Co., 621 S.W.2d 539, 1981 Mo. App. LEXIS 2989 (Mo. Ct. App. 1981).

Opinion

SIMON, Judge.

This is an appeal by plaintiff, Carla Watson Stearns (Stearns), from a jury verdict for defendant, Be-Mac Transport Company, Inc., (Be-Mac) in a case arising out of a traffic accident. We affirm.

On December 12, 1973, Stearns was driving her automobile west on Interstate 70. Somewhere between the Cypress Road and Lindbergh Boulevard exits, a tractor-trailer truck drive by Be-Mac’s driver and agent, Lester Gamblin, twice collided with Stearns’ silver Honda from the rear. The collisions caused Stearns’ car to spin and roll over. The car came to a stop, upside down, in the grassy median of the highway. Stearns and her two passengers were injured in the accident. Stearns brought this suit against Be-Mac in the Circuit Court of the City of St. Louis, alleging that Gamblin had negligently operated the tractor-trailer truck.

Stearns testified that she had been driving in the right lane of Interstate 70 when she was overtaken and rear-ended by Be-Mac’s truck. Stearns alleged that she was within the speed limit, had been in the far right lane for a considerable time and had not been changing between the right and left westbound lanes. Stearns also stated that she did not recall passing a tractor trailer before the accident, had not seen one ahead of her before the accident and did not see a tractor trailer in her rear view mirror before the accident. Stearns testified that when her car was first struck she was in the right westbound lane and did not know what had hit her car.

Debra Schell (Schell) testified that she and her four month old son had been passengers of Stearns at the time of the accident. At trial she could not remember their passing Be-Mac’s truck. She stated that for a considerable time prior to the accident they had been traveling in the right, westbound lane of Interstate 70. Sometime after passing the Cypress Road exit she felt an impact on the rear of the [541]*541car. After the impact, Stearns lost control of the car and it began to spin. While the car was spinning, Schell saw an orange and white truck which she identified at trial as Be-Mac’s truck. The truck again struck the car, causing it to roll off the road.

Be-Mac’s driver, Lester Gamblin, testified that he too had been driving in the right, westbound lane of Interstate 70 for a considerable time prior to the accident. Gamb-lin testified that he was within the speed limit and was keeping a careful lookout by “looking straight ahead like you are supposed to when you are driving with an occasional glance through both mirrors, a little to the left and a little to the right.” Gamb-lin also stated that he did not see plaintiff’s car in the right hand lane in front of him until the time of impact. Be-Mac denied negligence and asserted the affirmative defense of contributory negligence on the part of Stearns. The jury found for Be-Mac and this appeal followed.

Much of Stearns’ argument on appeal centers around the validity of the testimony of defendant’s witness, Dewey Millay. Because of its importance in answering other issues on appeal, we shall address this issue first. On direct examination Millay stated he was driving 150 to 200 feet behind defendant’s tractor trailer on Interstate 70. He saw Steams’ car in the right westbound lane, then he saw it pass him, switch into the left lane and pass the tractor trailer, then turn slightly to the right, and go into a roll and land in the median. Millay testified that the tractor trailer was in the right hand lane and had been since he had it in sight.

On cross examination Millay stated that the first time he saw Stearns’ car was at the beginning of the accident and that he did not see the vehicles actually come into contact because he could not see the front bumper of the truck at the time of the collision. Millay claimed that at the time of the accident plaintiff’s car was 90 to 95% in his view.

Stearns’ attorney attempted to impeach Millay’s credibility by drawing his attention to a letter he wrote at Gamblin’s request three days after the accident. In the letter Millay stated that at the time of the accident the position of Stearns’ car was not clear in his mind. Stearns’ attorney also produced a transcript of a sworn, tape-recorded statement made by Millay in which he stated that Stearns’ car was hidden by the tractor trailer and that Millay was unaware of whether the car had passed him prior to the accident.

Following Millay’s testimony, Stearns moved that the court strike all direct testimony of Millay as being speculative and not probative. The motion was denied. Stearns contends that Millay’s testimony was shown to be mere guess and speculation and therefore should have been stricken as being of no probative value. We do not agree.

A witness’ testimony apparently possessed with probative value on direct examination may be shown upon cross-examination to be mere guess, speculation, impression or conjecture and of no probative value. Gilpin v. Pitman, 577 S.W.2d 72, 77 (Mo.App.1978). In Cragin v. Lobbey, 537 S.W.2d 193 (Mo.App.1976) the court explained when testimony should be excluded on the basis of being based on guess or speculation:

“[I]f a witness cedes his prior testimony on a given issue was, in fact, predicated on a mere guess, i. e., upon speculation with no factual basis, or if he admits to facts, conditions or circumstances which make it evident his testimony was a mere guess on his part, then his testimony does not constitute substantial evidence and has no probative value.”

Id. at 199.

Millay’s testimony does have probative value. Although Millay stated he did not see the exact moment of impact he did observe the circumstances before and after the collision. His observations could have been helpful to the jury. Stearns sought to impeach Millay’s testimony on cross-examination by showing his prior inconsistent statements, but did not establish that Millay’s testimony was a mere guess or [542]*542speculation. Stearns’ efforts merely went to the credibility of the testimony, but did not strip it of its probative value. The jurors, as fact finders, are the sole judges of the credibility and weight to be given to a witness’ testimony. We also bear in mind that a juror may believe all, none or part of the testimony of a witness. Hartley v. Matejka, 585 S.W.2d 240, 242 (Mo.App.1979); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11 (Mo.App.1974). On this basis we find that the trial judge did not err in refusing to strike Millay’s testimony.

Next Stearns contends that the trial court erred (1) in giving an instruction on burden of proof that included a reference to the defendant’s burden of proving contributory negligence and (2) in giving an instruction on contributory negligence, because there was no competent and substantial evidence to support the submission of these instructions. We disagree.

In determining whether there was competent and substantial evidence to support the submission of the instructions, we must consider the evidence in the light most favorable to Be-Mac and give it the benefit of all favorable inferences reasonably to be drawn from all of the evidence.

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Bluebook (online)
621 S.W.2d 539, 1981 Mo. App. LEXIS 2989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stearns-v-be-mac-transport-co-moctapp-1981.