Bumgardner v. St. Louis Public Service Co.

• Decision Date: 11 March 1937
• Docket Number: 32870
• Citation: 102 S.W.2d 594,340 Mo. 521
• Parties: John C. Bumgardner v. St. Louis Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 594

340 Mo. 521

John C. Bumgardner v. St. Louis Public Service Company, a Corporation, Appellant

No. 32870

Supreme Court of Missouri

March 11, 1937

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed (upon condition).

T E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) The trial court erred in giving Instructions 1 and 2, at the request of the plaintiff, for the reason that by these instructions the case was submitted to the jury, and the jury was authorized to return a verdict for plaintiff, upon wholly inconsistent and repugnant theories or grounds of liability on the part of the defendant, in that Instruction 1 authorized the jury to return a verdict for plaintiff if they found that after plaintiff was in imminent peril the motorman, by the exercise of ordinary care, could have stopped the street car and avoided the collision, and that his failure to do so was the proximate cause of plaintiff's injuries, whereas Instruction 2 authorized the jury to return a verdict for plaintiff if they found that the car was being operated at a speed of about twenty miles per hour and that its operation at such speed proximately caused the collision, upon the theory that by operating the car at such speed the motorman had negligently disabled himself from stopping after the peril arose. It is error prejudicial to the defendant for a trial court to submit a case to the jury upon instructions authorizing a recovery on theories of negligence that are wholly inconsistent and repugnant to each other. Crews v. Wilson, 312 Mo 653; Elliott v. Richardson, 28 S.W.2d 410. (2) The trial court committed error prejudicial to defendant in giving Instruction 3 at the request of the plaintiff, whereby the court told the jury that the defendant was not entitled to the exclusive use of Manchester Avenue, and then proceeded to comment, argumentatively, as to the care and vigilance required of defendant. (a) Defendant did not in any manner, expressly or impliedly, claim or assert any right to the exclusive use of said street, and the instruction in this respect was highly misleading and prejudicial, in that it was calculated to cause the jury to believe that the court considered that defendant had operated its car as though it deemed itself entitled to the exclusive use of the street and in total disregard of the rights of others. McLaughlin v. Marlatt, 296 Mo. 674; McLaughlin v. Marlatt, 228 S.W. 878. (b) This instruction constitutes a plain, unwarranted comment on a particular phase of the case, giving undue emphasis thereto, and is, as well, highly argumentative. It first tells the jury, by way of comment and argument, that if they find that the streets mentioned were public streets (which was not disputed), then defendant was not entitled to the exclusive use of Manchester Avenue (though defendant made no such claim), and then proceeds to comment upon, and present an argument respecting, the care and "vigilance" required of defendant in operating its car thereon. The instruction is utterly vicious, and the giving thereof was error highly prejudicial to the rights of defendant. Rice v. Bridge & Transit Co., 216 S.W. 751; Zumwalt v. Railroad Co., 266 S.W. 717; Keppler v. Wells, 238 S.W. 428; Littig v. Urbaur Atwood Heating Co., 392 Mo. 245; Sturtevant Co. v. Ford Mfg. Co., 315 Mo. 1042; Burton v. Holman, 288 Mo. 83. (3) The evidence was insufficient to show that any injury received by plaintiff in the collision was permanent, or resulted in any permanent pathological condition in plaintiff. The evidence adduced by plaintiff did not warrant a finding that the arthritic condition of plaintiff's spine and sacroiliac joints, accompanied by large spurs or protuberances on the spine, was proximately caused by the injuries received by him in the collision; while that for defendant clearly and definitely showed that such condition was not and could not have been caused by the collision. Kimmie v. Terminal Railroad Assn., 66 S.W.2d 565; Plank v. Brown Petroleum Co., 61 S.W.2d 334; Adelsberger v. Sheehy, 59 S.W.2d 644; O'Leary v. Steel Co., 303 Mo. 363; Bante v. Wells, 34 S.W.2d 980; May Dept. Stores Co. v. Bell, 61 F.2d 841; Hardy-Burlington Mining Co. v. Baker, 10 F.2d 277; Bucher v. Ry. Co., 139 Wis. 597, 120 N.W. 523. The opinion of a medical expert to the effect that a condition present in a plaintiff at the time of the trial resulted from the trauma in question "must have to support it reasons and testimony which will give it sufficient probative force to be substantial evidence." The facts on which such an opinion is based "must, like the facts sufficient to support the verdict of the jury, measure up to the legal requirements." Kimmie v. Terminal Railroad Assn., 66 S.W.2d 565; Hall v. Mercantile Trust Co., 59 S.W.2d 672. (a) In no view of the evidence was plaintiff entitled to an award of damages by any means as great as $ 10,000. Schupbach v. Meshevsky, 300 S.W. 469; Kleinlein v. Foskins, 13 S.W.2d 659; Morris v. Atlas Portland Cement Co., 19 S.W.2d 878; Clark v. Ry. Co., 324 Mo. 419; Cole v. Ry. Co., 61 S.W.2d 348; Spencer v. Railroad Co., 317 Mo. 505; Corn v. Ry. Co., 228 S.W. 83.

Earl M. Pirkey and Robert L. Maul for respondent.

(1) Appellant cannot complain of an error in an instruction not given by appellant when appellant's instruction contains the same error. Coleman v. Rightmeyer, 285 S.W. 405; White v. Railroad Co., 250 Mo. 476. (2) Negligent speed and the humanitarian doctrine may be instructed on in the same case. Williams v. St. Louis Pub. Serv. Co., 73 S.W.2d 203; Farrar v. Railroad Co., 249 Mo. 217; Taylor v. Met. St. Ry. Co., 256 Mo. 210. (3) The instruction on the right of the road is correct. Williams v. St. Louis Pub. Serv. Co., 73 S.W.2d 204; Parrish v. United Ry. Co., 260 S.W. 750; Martin v. United Ry. Co., 186 Mo.App. 583. (4) The verdict is not excessive. Hurst v. Railroad Co., 280 Mo. 574; Span v. Jackson, Walker Coal Mining Co., 16 S.W.2d 203; Flynn v. Corich, 53 S.W.2d 1103; Campbell v. Mason & Wood, 6 Mo. 218; Edwards v. Railroad Co., 82 Mo.App. 485; Real Estate Co. v. Wenz, 185 Mo.App. 166; Evans v. General Explosive Co., 239 S.W. 493. (5) In determining whether a verdict is excessive, evidence most favorable to plaintiff must be regarded as true and evidence to the contrary disregarded. Flynn v. Carich, 53 S.W.2d 1103; Peterson v. Kansas City, 324 Mo. 454. (6) A litigant is entitled to an instruction presenting his theory of the case especially where it is the converse of an instruction given for the adverse party. DaPron v. Neu, 43 S.W.2d 917; Harris v. Railroad Assn., 203 Mo.App. 324; Northum v. United Rys. Co., 176 S.W. 227.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

The St. Louis Public Service Company, a corporation, prosecutes this appeal from a $ 10,000 judgment in favor of John C. Bumgardner for damages sustained by reason of a collision between one of appellant's street cars and an automobile operated by respondent. The case reaches the writer upon reassignment.

Manchester Avenue is an east and west street and Tower Grove Avenue is a north and south street in the city of St. Louis. Appellant maintains and operates a double track street railway service along Manchester Avenue at the point involved in this proceeding. Appellant's north track is used for westbound traffic and the south track for eastbound traffic. The south rail of appellant's south track, ten feet west of Tower Grove Avenue, is eighteen feet three inches north of the south curb of Manchester Avenue. Tower Grove Avenue at its intersection with Manchester Avenue is sixty feet wide. The grade of Manchester Avenue is practically level immediately west of its intersection with Tower Grove Avenue. The evidence on behalf of respondent established that January 26, 1931, was a clear day, and appellant's tracks were dry; that about eleven-thirty A. M. of said day respondent was operating a Hudson service sedan eastwardly along Manchester, at a speed of approximately twenty miles an hour, and approaching Tower Grove; that respondent passed an eastbound street car of appellant's, traveling four to five miles an hour, approximately three hundred or three hundred and fifty feet west of Tower Grove and as he approached Tower Grove he swerved to the north to avoid an automobile "double parked" or parked a few feet north of the south curb on Manchester, going over on or near to appellant's south track; that thereafter respondent continued straight east toward Tower Grove; that the traffic signal at Tower Grove changed from "Go" to "Stop" when respondent was fifty to seventy-five feet from Tower Grove; that respondent stopped his automobile within six or seven feet of the crosswalk; that the traffic signal changed every thirty seconds; that there was no obstruction to appellant's motorman's view of said automobile; that, after respondent's automobile had been standing at the intersection from fifteen to twenty-five seconds, it was struck on its left rear bumper and body by the street car, knocked, according to the testimony, "cater-corner" across Tower Grove to the southeast corner of the intersection, striking a light pole and a Ford coupe, on which the brakes were set, and forced the coupe forward about six feet and against the rear of a standing Ford truck, damaging the rear doors of the truck. The testimony also established that at the time respondent's automobile came to a stop prior to the collision the street car was some distance west, variously put by witnesses up to two hundred feet or more, traveling east fast, its speed being estimated at twenty and twenty-five miles an hour, and, if loaded, could have been stopped in from seventy to eighty feet with safety. The...