Boehm v. St. Louis Public Service Co.
| Decision Date | 13 May 1963 |
| Docket Number | No. 1,No. 49325,49325,1 |
| Citation | 368 S.W.2d 361 |
| Parties | Susan C. BOEHM, a Minor, by Her Mother and Next Friend, Esther May Batch, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Sgt. Howard Nelson, Appellants, |
| Court | Missouri Supreme Court |
David G. Dempsey, Richard B. Dempsey, Clayton, Edmund W. Albright, St. Louis, Eaker, Dempsey, Heath & Dempsey, Clayton, for plaintiff-respondent.
Donald W. Bird, St. Louis, for appellant, St. Louis Public Service Co.
Byron G. Carpenter, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant, Sgt. Howard Nelson.
HOUSER, Commissioner.
Suit for damages for personal injuries sustained by an 11-year-old girl when a motor scooter on which she was riding as a passenger was struck by a public service company bus in a street intersection in St. Louis. Susan C. Boehm, pro ami, filed suit against St. Louis Public Service Company and Howard Nelson, operator of the scooter. A jury awarded plaintiff $55,000. After remittitur ordered and entered the verdict was reduced to $32,500, for which judgment was rendered against both defendants. Both defendants have appealed.
The collision occurred within the intersection of Michigan Avenue and Schirmer Street. The streets are approximately level. Michigan runs generally north and south. Schirmer runs generally east and west. Michigan is 35 feet 9 inches wide. Schirmer is 30 feet wide. A building located on the southeast corner of the intersection extends out to the sidewalk line. The sidewalk on the Michigan side of the building is 12 feet wide. The sidewalk on the Schirmer side is 9 feet 9 inches wide. Stop signs control east-west traffic on Schirmer. There are no stop signs at that intersection for the control of north-south traffic on Michigan. The stop sign for westbound traffic on Schirmer is located 13.7 feet east of the east curb line of Michigan. The distance between Schirmer and Courtois Street, the next street south of Schirmer, is 320 feet. There was a bus zone on the east side of Michigan located, according to plaintiff, one half block south of the intersection. The bus driver placed the bus stop 40-50 feet south of the intersection.
The collision occurred in the late afternoon of December 15, 1959. It was dark, or dusk, dark enough that lights on vehicles were turned on. Immediately preceding the collision the bus was traveling north on Michigan and the motor scooter was traveling west on Schirmer.
Nelson, with plaintiff seated behind him holding onto his waist, drove the scooter west on Schirmer, and came to a stop with the front wheel even with the stop sign. The scooter was 'right over at' the north curb line of Schirmer. Plaintiff looked both to the north and to the south, and Nelson turned his head both ways. Nelson then 'inched' his way forward to get a better view of the traffic, stopping a second time at a point probably halfway between the stop sign and the east curb of Michigan. When plaintiff looked south she saw a northbound bus, moving at 20 m. p. h., about a half block south of the intersection, traveling on the right or east side of the center of Michigan. She marked a cross on the plat showing where the bus was when she first saw it, and according to the scale, the bus was 132 feet south of the south curb line of Schirmer when she first saw it. The bus appeared to be slowing down and pulling in toward the east curb line of Michigan a little bit. It did not stop at the bus stop, but continued on north. When the bus was 60 feet south of the intersection it was going 15 m. p. h. At that place the bus operator could see the stop sign. There was nothing to obscure his vision. The bus operator was some 30 feet south of the intersection when he first took a look at the intersection. The bus brakes were in good operating condition. At 15 m. p. h. the bus could be stopped in an emergency in 35 feet. The bus was traveling 10-20 m. p. h. as it entered the intersection, and at that point the operator started to accelerate the speed of the bus. The scooter was at the stop sign about 3 seconds; long enough for Nelson to ask plaintiff which may to go to get to their destination, and for plaintiff to tell him to go straight ahead. The scooter proceeded into the intersection. The next time plaintiff saw the bus it was 9 feet away. The bus was traveling 10 or 11 feet out from the east curb line of Michigan; 3 feet east of the center line. The front of the bus hit the scooter when the scooter was more than halfway across Michigan. The bus driver gave several versions of when he first saw the scooter. The answer most favorable to plaintiff was his admitted previously given testimony that he did not see the scooter prior to the accident, or at least not until it was 'practically in front of [him]; right on top of [him],' only 15 feet away from the bus. The bus driver 'went for his brakes, to make an emergency stop' but the brakes did not take ahold before the impact occurred.
Respondent has filed a motion to dismiss Company's appeal for failure of the statement of facts to conform to Supreme Court Rule 83.05(c), V.A.M.R. Company has moved to dismiss respondent's brief for failure to comply with Supreme Court Rule 83.05, and has moved to strike respondent's suggestions in support of her motion to dismiss, as scandalous and libelous under Supreme Court Rule 55.35. We have examined the several motions, the brief and the transcript of the evidence. Without indicating approval of Company's statement of facts, or respondent's brief or suggestions, all of the motions are overruled without comment.
The cause was submitted to the jury as to defendant Company on negligent failure to keep a lookout and watch ahead and laterally ahead of westbond traffic on Schirmer.
Company's first point is error in not directing a verdict for failure of plaintiff to introduce substantial evidence that Company had the means and ability to avoid the collision had a vigilant watch and lookout been kept; that 'there was no substantial evidence adduced as to where the front of the bus was when Nelson pulled into the intersection'; that plaintiff failed to establish the exact point where the bus operator became chargeable with knowledge that plaintiff had entered a position of danger, and failed to show that thereafter the bus operator had the time and ability to avoid a collision, and therefore there was no evidence from which the jury could find that failure to keep a lookout was the proximate cause of the collision. The alleged failure of proof is based on the theory that the probative value of the testimony of plaintiff was destroyed because it supports several inconsistent factual inferences, and is contradictory and conflicting, one version tending to prove the issues, the other tending to disprove them.
Inconsistencies in a plaintiff's testimony are for the jury to resolve, unless they are diametrically opposed to each other with respect to some vital question in the case, so contradictory and without explanation as to preclude reliance thereon, and rob the testimony of all probative force, and so glaring as to conclusively show that the party testified untruthfully one way or the other. Ringeisen v. City of St. Louis, Mo.App., 238 S.W.2d 57, 63.
Plaintiff, a 13-year-old girl at time of trial, was subjected to intensive and exhaustive cross-examination which takes up 66 pages of the transcript. Some discrepancies, inconsistencies and variations were elicited, but none fatal to the submission, under the rules referred to in Ringeisen, supra.
First, Company says plaintiff first testified that the scooter stopped approximately even with the stop sign, remained stopped for three seconds, pulled forward and came to a second stop, and remained stopped for an additional three seconds (a total elapsed time of six seconds) and later, inconsistently, testified that the total length of time that elapsed for both stops was three seconds. The record reveals no such sharp and clearly defined contradiction. Plaintiff, on cross-examination, testified that the motor scooter was even with the stop sign about three seconds and that the scooter then moved up a little bit to a second stop. Asked how long she was at a stop the second time, she said 'Altogether, it was three seconds--about three seconds.' Again she was asked 'How long were you at a stop the second time?' After an objection the court asked the witness whether by 'altogether' she meant at the second stop or including both first and second stops. The question was repeated. Plaintiff inadvertently said 'Three minutes' which, called to her attention, she corrected to 'three seconds.' When again asked about the length of the second stop she answered 'Both stops altogether was about three seconds.' This might well have ended the inquiry but the question was repeated in various forms seven times. Finally, succumbing to the suggestion that she had testified to two three-second intervals, plaintiff conceded 'Yes, but I didn't mean that,' and gave this explanation: The probative force of plaintiff's testimony that both stops consumed a total of three seconds was not destroyed by the total exchange between plaintiff and Company counsel on this question.
Company claims plaintiff testified 'that she never saw the bus and did not know of its whereabouts at the time the motor scooter started into the intersection.' This version of plaintiff's testimony, reconstructed from the actual words she used, is not strictly accurate. From plaintiff's testimony on this phase of the case we conclude simply that plaintiff clearly and definitely testified that she saw the bus twice; once after the scooter came to its first stop, at which time the bus was about a half a block south...
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