Reassessment of Evidence Credibility in Collision Liability: Cluck v. Abe

Strubinger Strubinger for appellant. (1) The verdict of the jury is not supported by substantial evidence: (a) Because the testimony of the defendant and his wife, respecting the manner in which the collision between defendant's automobile and the motorcycle occurred, is opposed by the established physical facts of the case, the laws of physics, common observation and experience, and is shown to be false by all the other facts in the case. Highfill v. Wells, 16 S.W.2d 100; Anderson v. Davis, 284 S.W. 454; Sexton v. Met. St. Ry., 149 S.W. 25; Schupback v. Meshevsky, 300 S.W. 467; Kibble v. Railroad Co., 227 S.W. 46; Chawkley v. Ry. Co., 297 S.W. 20; Waldmann v. Const. Co., 233 S.W. 242. (b) Because the defendant's testimony is so full of contradictions and irreconcilable statements of material facts as to wholly destroy it and render it unbelievable. Van Bibber v. Swift Co., 228 S.W. 69; Steele v. Ry. Co., 265 Mo. 97, 175 S.W. 177; Oglesby v. Ry. Co., 177 Mo. 272; Steinman v. Brownfield, 18 S.W.2d 530. (2) The verdict of the jury was contrary to the law of the case. Chawkley v. Ry. Co., 297 S.W. 20. (3) Instruction 1, given by the court of its own motion, was fatally erroneous and prejudicial and must lead to a reversal of the judgment below. It permitted the jury to determine the issues in the case and to consider evidence upon issues abandoned by plaintiff, and is misleading and improper in form. Wallace v. Burkhardt Mfg. Co., 3 S.W.2d 387; McCaslin v. Mullins, 17 S.W.2d 684; Roemer v. Wells, 257 S.W. 1056; Head v. Lbr. Co., 281 S.W. 441; Peppers v. Ry. Co., 295 S.W. 761. (4) The court erred in refusing to permit the plaintiff to exhibit his ankle to the jury showing the marks on the outside made by the defendant's bumper and the marks on the inside of his ankle made by the cylinders of his motorcycle. Senn v. Ry. Co., 108 Mo. 142; Anderson v. Davis, 284 S.W. 454. Jones, Hocker, Sullivan Angert for respondent. (1) The verdict of the jury should be permitted to stand because it is supported by the evidence, and the evidence is not so contrary to the physical facts as to conclusively show it to be false. Funk v. Endsley, 1 S.W.2d 1038; Scroggins v. St. Ry. Co., 138 Mo. App. 215; Kibble v. Ry. Co. 285 Mo. 603; West v. Duncan, 249 S.W. 127; Holland v. St. Ry. Co., 157 Mo. App. 476, 481. The respondent's testimony is not so full of contradictions and irreconcilable statements as to render it unbelievable, and the authorities cited by appellant under this point do not support his contention. See authorities cited, supra. (2) The trial court committed no reversible error in refusing to allow the plaintiff to exhibit his ankle to the jury, showing marks on the outside and inside thereof, for the reason that these marks would have had no tendency to prove how or by what particular part of the machines involved in the accident the scars were made, and it was discretionary with the court to exclude it unless this discretion was abused. 22 C.J. 789; Barefoot v. White Street Line, 170 Mich. 349, 136 N.W. 437; Thompson v. Life Ins. Co. (Me.), 95 A. 231; Graves v. State, 58 Tex.Crim. App. 42. (3) Where the evidence is conflicting, it is the province of the jury to determine in whose favor it preponderates. Clukies v. Ryall, 280 S.W. 85; Ensler v. Ry. Co., 23 S.W.2d 1034; Farmers State Bank v. School District, 220 Mo. App. 1312; Robertson v. Construction Co., 294 S.W. 426. (4) Appellant is precluded from insisting here that the evidence was contrary to the physical facts, is full of contradictions or is against the law, for the reason that he submitted the case to the jury by his own instructions and did not ask for a directed verdict, thereby admitting there was a case for the jury. Brown v. Deal, 256 S.W. 114; Kennefick-Howard Co. v. Ins. Co., 205 Mo. 294; Henson v. Boyd, 116 U.S. 379, 165 Sup. Ct. 571; Hart Ins. Co. v. Unsell, 144 U.S. 439, 12 Sup. Ct. 617, 36 L.Ed. 496; Anderson v. Davis, 284 S.W. 453.