Berryman v. Motorbus Co.

• Decision Date: 28 June 1932
• Docket Number: No. 21768.,21768.
• Citation: 54 S.W.2d 747
• Parties: JAMES BERRYMAN, RESPONDENT, v. PEOPLES MOTORBUS COMPANY OF ST. LOUIS, APPELLANT.
• Court: Missouri Court of Appeals

54 S.W.2d 747

JAMES BERRYMAN, RESPONDENT, v. PEOPLES MOTORBUS COMPANY OF ST. LOUIS, APPELLANT.

No. 21768.

St. Louis Court of Appeals. Missouri.

Opinion filed June 28, 1932.

Motions of appellants for rehearing overruled December 20, 1932. Certiorari granted by Supreme Court and writ quashed. See 66 S.W. (2d) 141.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Carter, Jones & Turney, James E. Garstang and Richard S. Bull, for appellant, The People's Motorbus Company of St. Louis.

T.E. Francis and B.G. Carpenter for appellant, St. Louis Public Service Company.

(1) Defendant People's Motorbus Company's motion in arrest of judgment should have been sustained on the ground that the verdict improperly and illegally apportioned separate damages against the two defendants. Neal v. Curtis Mfg. Co., 41 S.W. (2d) 543; Rathbone v. Railway, 187 Mich. 586; Southwestern Gas Co. v. Godfrey (Ark.), 10 S.W. (2d) 894; Whitaker v. Tatum, 48 Conn. 520. (2) The trial court had no power to strike from the verdict of the jury the words: "$2,500 against The People's Motorbus Company. $1,000 against the Public Service Company of St. Louis" (Abs., pp. 151, 161), and had no power to thus change and amend the verdict. This change was not one merely of form, but one of substance. 2 Thompson on Trials (2 Ed.), sec. 2642; 38 Cyc. (Trial) 1898; Meffert v. Lawson, 287 S.W. 610, 612; Powell v. Bierman, 22 S.W. (2d) 854; Dyer v. Combs, 65 Mo. App. 148, 152-153; Acton v. Dooley, 16 Mo. App. l.c. 449; Keyes v. Railroad, 31 S.W. (2d) 50. (3) Plaintiff's Instruction No. 1 (Abs., p. 140) erroneously submitted to the jury, as an alternate ground of recovery under the humanitarian doctrine. Bury v. Railroad, 17 S.W. (2d) 549; Highfill v. Wells, 16 S.W. (2d) 100, 102; Bubernick v. United Rys., 217 S.W. 33; Peterson v. United Rys., 270 Mo. 67, 75-76; Murray v. Transit Co., 176 Mo. l.c. 189. (4) Plaintiff's Instruction No. 4 (Abs., pp. 143-144), on the measure of damages, erroneously authorized an allowance to plaintiff for such earnings as he was "reasonably certain to lose in the future," in the absence of any evidence showing the probable loss of future earnings. Bante v. Wells, 34 S.W. (2d) 980, 981; Rosenzweig v. Wells, 308 Mo. 617; Perkins v. United Railways, 243 S.W. 224; Lebrecht v. United Rys., 237 S.W. 112, 114.

Everett Hullverson and Staunton E. Boudreau for respondent.

(1) The court did not err in overruling the motions of both defendants to require plaintiff to elect to proceed against the one or the other of defendants alone. Miller v. United Rys. Co. of St. Louis, 155 Mo. App. 528, 134 S.W. 1045. (2) The court did not err in refusing to sustain the motions of both defendants in arrest of judgment, made on the alleged ground that the jury unlawfully apportioned damages between defendants. Buttron v. Bridell, 129 S.W. 12, 228 Mo. 622. (3) The court did not err in giving plaintiff's instructions. Miller v. United Rys. Co. of St. Louis et al., supra; Banks v. Morris, 301 Mo. l.c. 266, 257 S.W. l.c. 484; Grubbs v. Kansas City Public Service Co. (Mo.), 45 S.W. (2d) 71, 74, 80; Kemper v. Gluck (Mo. en banc), 39 S.W. (2d) 330, 336. (4) The court did not err in permitting witness August C. Patton to testify that the street car motorman failed to ring his gong. Hawkins v. St. Louis-San Francisco Ry. Co., 31 S.W. 596, 601.

BECKER, J.

Plaintiff, in his action for damages for personal injuries, recovered a judgment in the sum of $3500 against the Peoples Motorbus Company of St. Louis, and the St. Louis Public Service Company, defendants. We have here for consideration as a consolidated case the appeals of each of the defendants.

On the 10th of December, 1928, between six-thirty and seven P.M., plaintiff boarded a southbound Broadway street car of the defendant, St. Louis Public Service Company, intending to ride to Broadway and Victor Street, 2500 south, in the neighborhood of where he lived. Instead, however, plaintiff fell asleep and when he awoke the car was approaching 5200 South Broadway, at which corner he got off the car with the intention of crossing to the east side of Broadway to take a northbound car back to his original destination.

According to plaintiff, upon alighting from the street car he stood within three feet of the west rail of the southbound track awaiting an opportunity to cross to the east side of Broadway. While thus standing and awaiting the passing of some automobiles that were going north, plaintiff saw approaching him from the north an automobile, and behind it a motorbus being driven south on Broadway. The automobile passed in the car tracks to the east of plaintiff, but, according to plaintiff, the motorbus, which was following the automobile perhaps a quarter of a block, came on without a warning signal of any kind and approached without decreasing its speed, and as the front of the bus got to plaintiff it made a turn to the west and the left side of the bus struck plaintiff and knocked him down. Plaintiff said it was the left side of his body that was struck by the bus and that he was knocked unconscious. Plaintiff described his position in the street as being at the regular crossing place, "right under the big light."

According to the driver of the motorbus it was close to seven o'clock and the electric street lamps were lighted. He testified that he was turning in for the day; that he was driving eighteen miles an hour and could have stopped his bus within thirty-five feet. The bus was being driven immediately west of the west rail of the southbound tracks and about nine feet from the west curb of Broadway; that when first he saw plaintiff, plaintiff was three feet east of the west curb at a time when the front of the bus was eight feet to the north of the plaintiff and six feet to the east of him; that plaintiff was evidently trying to get to the east side of Broadway "in a dog-trot — sort of staggering out;" that he sounded his horn and swerved the bus to the left and brought the bus to a stop, straddling the center of the north and southbound tracks; that the bus traveled forty-eight feet from the time he saw plaintiff to the point where the bus was brought to a stop; that he got out of the bus and looked and saw plaintiff between the rails of the southbound street car tracks "in a getting-up position on one knee;" that while plaintiff was in this position the witness saw a southbound street car approaching, traveling thirty or thirty-five miles an hour, and then distant fifty feet from plaintiff; that he did not hear any warning sounded by the street car, and that no attempt was made by the motorman to stop the speed of the car until the car was within fifteen feet of plaintiff when the brakes were put on, the wheels locked and the car "kept on coming in a sliding position — the wheels locked. This man was kneeling and it bumped him and knocked him down and bumped the man again and got him underneath the guard under the car." He stated the first time the car knocked plaintiff five or six feet, and the second time "the distance underneath the car was about two or three feet." According to this witness, after the car struck plaintiff it traveled eight or nine feet. When the car stopped "a part of plaintiff's body was underneath and a part in front of the car." At this point in the examination of the witness he was asked: "How far could you see an object away? A. If looking for a man I could see him three or four blocks away." ... Q. Under the conditions existing that night? A. Yes, sir. Q. It was that light and that clear? A. Yes, sir."

On cross-examination this witness stated he did not see plaintiff standing on the curb; that he was looking straight ahead and when asked "what prevented you seeing him before that," answered, "I didn't see him, that's all. Q. You were looking straight ahead and didn't see him? A. No, sir." The witness was unable to state whether or not the bus he was driving had struck plaintiff.

"Q. How far did the car knock him, hitting him the first time? A. I judge about eight feet, about the length of his body... .

"Q. What did the man do while the car was coming that fifty feet? What did he do? A. The old man?

"Q. Yes? A. He was getting up.

"Q. He was on one knee, you said. Now, did he get fully up on his feet while the car was going fifty feet? A. No sir."

Oliver T. Remmers, a witness for the defendant, Peoples Motorbus Company, testified that he was driving his automobile south on Broadway and saw the bus in question a block ahead of him; that he saw the bus turn slightly toward the left side of the street and make a sudden, almost right-angle turn to the left side of the street, then travel southwardly for a distance and stop on the east side of Broadway facing south; that when he had gotten to a point about the center of the block he saw an object lying on the southbound street car tracks between the two rails, and as he got within forty or fifty feet he saw it was a person. He drove his car to the curb and stopped, and as he was on the point of getting out of his automobile he heard the gong of a street car and saw its lights. The car "was thrown in reverse prior" to striking plaintiff, and when plaintiff's body touched the trigger of the life guard beneath the car, the life guard fender in front of the trucks dropped to the pavement of the street; but the life guard did not pick up plaintiff's body because the car came to a standstill; that either the driver of the bus or a passenger of the street car got in front of the car, reached under the car platform and pulled the plaintiff out. The witness was positive that the accident occurred in the center of the block, where the bus made an abrupt turn without any change of speed. The bus was traveling twenty to twenty-five miles per hour.

Plaintiff's case was submitted to the jury solely upon an instruction predicating a recovery upon the humanitarian doctrine.

The...