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06/30/83 ROBERT S. KARASHIN v. HAGGARD HAULING &

June 30, 1983

ROBERT S. KARASHIN, PLAINTIFF-RESPONDENT,
v.
HAGGARD HAULING & RIGGING, INC., DEFENDANT-APPELLANT,
v.
MICHAEL L. STEWART, THIRD PARTY DEFENDANT-RESPONDENT.



From the Circuit Court of Jackson County; Civil Appeal; Judge Keith P. Bondurant.

The opinion of the court was delivered by: Higgins

Robert S. Karashin sued Haggard Hauling & Rigging, Inc., for personal injuries sustained in an automobile collision; Haggard impleaded Michael L. Stewart as a third party defendant. A jury found for Karashin on his petition and for Stewart on Defendant's third party petition. Judgment for plaintiff for $100,000 was entered on the verdict; defendant appealed. A divided division of the court of appeals reversed the judgment for a new trial, and subsequently transferred the case to this Court. Appellant contends the trial court erred in refusing an offer of proof concerning the nature, public or private, of one of the streets involved in the accident; and in giving Instruction No. 6, because that instruction did not conform to case law on the duty to yield the right-of-way when entering a highway from a private road. Affirmed.

River Front Road is a public highway which runs northeast to southwest; Empire Street is privately owned and extends in an east to west direction. Both roads are paved; the intersection of the two roads is "Y" shaped. There are no stop or yield signs at the intersection; there is a street sign indicating the name of both roads. River Front Road is level and straight for one-quarter mile on either side of Empire Street which dead-ends at its intersection with River Front Road.

On November 13, 1974, a pickup truck owned by Chem-Lawn Corp. collided with a tractor-trailer at the intersection of River Front Road and Empire Street in Kansas City, Missouri. Michael L. Stewart was driving the pickup at the time of the collision; he was accompanied by another Chem-Lawn employee, Robert S. Karashin; the vehicle was moving in a westerly or southwesterly direction on River Front Road at a speed of 40-35 miles per hour.

William Sickman was operating the tractor-trailer for Haggard Hauling at the same time. He was on Empire Street headed toward the "Y" intersection at a speed of 15-20 miles per hour. Sickman testified he stopped 5-10 feet from the intersection and looked both ways, but did not see the vehicle in which Karashin was a passenger. He then turned left onto River Front Road. When his truck had moved about ten feet into the intersection, Sickman saw the pickup for the first time. He continued to turn his tractor-trailer to the left into the lane in which the pickup was traveling.

Stewart testified that he slammed on his brakes to avoid a collision with the tractor-trailer and lost control when his pickup went into a side skid. The pickup left the pavement, traveled up a hill, turned over, and came to rest on its top. Karashin (the passenger in the pickup) suffered a bruised kidney and a back injury which required the fusion of two vertebrae.

I.

Section 304.351.5 RSMo 1978 provides that the driver of a vehicle about to enter or cross a highway from any private road "shall yield the right-of-way to all vehicles approaching on the highway to be entered." Id. It is undisputed River Front Road is a public highway. *fn1 Plaintiff's evidence showed that Empire Street was privately owned and that it was not maintained by the city public works department. He takes the position that defendant's driver was required to yield the right-of-way to the pickup in which he was a passenger. Defendant offered to prove that Empire Street is a "de facto" public road, although not a "de jure" public road. Rejection of this offer is asserted as error.

A public road may be established in three ways: Under section 228.190 RSMo 1978; by prescription; or by implied or common law dedication. Osburn v. Supreme Express & Transfer Co., 590 S.W.2d 360, 362 (Mo. App. 1979); Gover v. Cleveland, 299 S.W.2d 239, 241 (Mo. App. 1957). A public road may be established pursuant to section 228.190 either by order of the county court and use as a public highway for ten years or by public use for ten years and expenditure of public money or labor thereon for such period. Establishment of a public road by prescription requires evidence of open, continuous, and adverse public use for at least ten years. Gover, 299 S.W.2d at 241.

A trial court has considerable discretion in the exclusion of evidence; unless there was an abuse of that discretion its action will not be grounds for reversal. Bine v. Sterling Drug, Inc., 422 S.W.2d 623, 631 (Mo. 1968); Strom v. Ford Motor Co., 526 S.W.2d 875, 880 (Mo. App. 1975). An offer of proof must demonstrate the relevancy of the testimony offered, must be specific, and must be definite. State v. Sullivan, 553 S.W.2d 510, 513 (Mo. App. 1977); State v. Davis, 515 S.W.2d 773, 775 (Mo. App. 1974). In order to present and preserve an offer of proof the questions must be propounded to a witness who is present and has taken the stand. This enables the trial court to rule upon the propriety and admissibility of the evidence, and preserves a record for appellate review. Sullivan, 553 S.W.2d at 513.

Defendant's offer of proof consisted of the following exchange between counsel and John H. Haggard, defendant's president, on direct examination:

Q: All right. Have you on occasion used Empire Street as a public road?

A: I have myself.

(objection ...


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