Carlson v. St. Louis Public Service Co.

• Decision Date: 11 June 1962
• Docket Number: No. 48685,No. 2,48685,2
• Citation: Carlson v. St. Louis Public Service Co., 358 S.W.2d 795 (Mo. 1962)
• Parties: Isabel CARLSON, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 795

358 S.W.2d 795

Isabel CARLSON, Appellant, v.ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 48685.

Supreme Court of Missouri, Division No. 2.

June 11, 1962.

Motion for Rehearing or for Transfer to Court En Banc Denied

July 16, 1962.

William R. Kirby, Charles A. Lee, Jr., St. Louis, for appellant.

V. James Ruddy, St. Louis, for respondent.

EAGER, Presiding Judge.

Plaintiff filed suit for personal injuries and property damage ensuing when her car, a 1948 Ford, was struck by a bus in St. Louis on July 3, 1958.The prayer was for $20,200; the jury's verdict was for the defendant on plaintiff's claim and against defendant on its counterclaim for a rather trivial damage to the bus.The collision occurred near the south edge of Natural Bridge Road about 240 feet east of Kingshigway.Plaintiff, accompanied by a passenger who lived and worked with her, had proceeded west on Natural Bridge up to the point of collision.At that point the south or eastbound half of Natural Bridge was shown to be 39 feet, 2 inches wide from center to curb.Two estabound traffic lanes were marked out immediately south of the center, leaving a space farther south which was shown to be 17 feet, 11 inches wide.The inner portion of this was used as a third traffic lane, the remainder for parking and bus zones.For clarity we shall refer to the latter as the parking lane.

Plaintiff wished to turn south, across the eastbound lanes, to enter a driveway which led to her employer's parking lot.From her testimony the following appears: she stopped in the westbound lane nearest the center of the street, turned on her blinker lights, held out her hand for a left turn and waited for the eastbound traffic to stop for the Kingshighway light; when it did, traffic in the first two lanes was backed up westwardly, but two cars in the first eastbound lane made room for her and she crossed it; cars in the next lane likewise made room and she crossed that and stopped, with her bumper even with the right side of the eastbound car in that second lane.No cars were stopped in the third lane.There she looked to the west and could see perhaps two car lengths or about 30 feet; she then moved slightly forward in order to see farther down the street to her right; she could and did then see for five or six car lengths, 75 to 90 feet, and saw nothing in the remaining lanes; she then proceeded on across, looking to see if there was anyone on the sidewalk and, attaining a speed of about five miles an hour, reached the driveway and entered it.When her bumper was about at the curbline, she heard something, looked, and saw an eastbound bus six or seven feet away traveling in the curb lane.Her car was struck on the right rear corner by the bus when the car was all in the driveway 'up to the back wheel.'The impact left the car at a 45 degree angle; the damage to the car was to the rear fender, largely behind the wheel, with also a crack in the right front door glass.The bus operator testified that the impact involved approximately the rear three feet of the right side of the car.The bus stopped near the curb and a short distance beyond the point of impact.Defendant's counsel offered portions of plaintiff's deposition to show that when she stopped after crossing the second lane she could see west to the next corner, but those inconsistencies were matters for the jury.At the trial she specifically denied this.

Plaintiff's passenger, Elizabeth Menzel, corroborated plaintiff's testimony in considerable detail, stating that after plaintiff crossed the second lane and stopped, she moved forward a little so that she could see, and 'seeing nothing she started forward * * *.'Miss Menzel first saw the bus when it was six or seven feet away, and traveling in the curb lane.This witness testified that she saw nothing coming when plaintiff stopped at the south edge of the second lane; that when plaintiff started out into the (third) lane the witness could see about five or six car lengths, and after her body passed the stopped cars she could see 'quite a distance,' and that there was nothing in view.She saw no parked cars.

A passenger on the bus, Clarence Woods, testified that he was standing at a door waiting to get off at the next stop; that the bus was traveling 'in the bus stop zone' and right next to the curb; that at the time of impact the bus was so close to the curb that one would not have had to step in the street to reach the curb.He further testified that the bus was 'pulling down' prior to the impact but no more than for a normal stop; that he was not holding on to anything and was not jarred off his feet, and in substance, that the stop was a normal one; that the bus did not swerve.

John William Bland, a registered engineer, testified to the street meansurements, certain bus measurements, the average overall height of cars in 1958(58 inches), the fact that a 1948 Ford would be somewhat higher, and that in a bus of this type the driver's eyes would be approximately six feet, eight inches above the pavement.He further testified: that at a speed of 20 to 22 miles an hour the bus could have reasonably been stopped in an overall distance of 72 feet with safety to its passengers, of which distance 25 feet would be consumed by reaction time; that at 20 miles an hour the bus would travel 30 feet per second and at 22, 33 1/2 feet; that plaintiff's car would have traveled the distance from the south line of the second lane to the curb, being something over 17 feet, in a little more than three seconds, at the speed plaintiff described (i. e., from zero to five miles an hour).

The bus operator, James Counts, was put on the stand by plaintiff.He testified: that he was driving in the third eastbound lane; that the traffic on his left was stopped and cars were parked intermittently in the curb lane; that he first saw the top of plaintiff's Ford moving through the second lane of traffic at about five miles an hour, when he was about 35 feet from the Ford, and traveling at 20-22 miles an hour; that the Ford was then about half way through the second lane; that he had not previously noticed any open spaces in the traffic stopped on his left; that at 100 feet back he had been looking foward; that he was going to stop at the bus stop just 50-60 feet beyond the point of collision and that passengers were waiting to get off there; that after he first saw plaintiff's car it speeded up, and he immediately applied his brakes as hard as he could with safety, having his foot already on the brake; that he also swerved about two feet to his left coming to within six inches of the line of stopped cars; that the bus damaged the rear three feet of plaintiff's car and if it had been three feet farther south there would have been no collision; that he had a full load of passengers and stopped seven feet beyond the point of collision; that plaintiff's car came to rest about twenty feet into the parking lot; that the point of impact was 12-13 feet north of the curb, and that the front of the Ford was then at the curbline.The brakes of the bus were in good condition.It is not necessary to refer to any testimony concerning injuries.

Plaintiff's case was submitted on primary negligence in failing to keep a lookout, and on humanitarian negligence in failing to stop or slacken speed and thus avoid the collision.Defendant insists here that plaintiff made no submissible humanitarian case and that she was contributorily negligent as a matter of law; hence this detailed discussion of the evidence.Plaintiff complains of errors in two instructions, Numbers 6 and 2, and of error in the admission of evidence.In overruling plaintiff's motion for a new trialthe court indicated: that it was denying the motion because plaintiff'failed to make a case,' and that if defendant had filed an after-trial motion for judgment it would have been sustained, with the condition that if the ruling should be reversed, plaintiff's motion for a new trial would be sustained for error in giving InstructionNo. 6 in that it directed a verdict on 'failure to stop only.'

Defendant initially urges that appellant's statement, as well as her points and authorities, constitutes a violation of our Rule 83.05, V.A.M.R.We do not find them so deficient as to require a dismissal, or that we should disregard her points, but we do call the attention of the Bar, again, to what we said in Domijan v. Harp, Mo., 340 S.W.2d 728, 731-732, hoping that the Bar would take heed.The complaint that the questioned instructions are set out in appellant's statement, rather than in the argument, is not fatal; portions are also set out in the argument.

First,--did plaintiff make out a submissible humanitarian case?Defendant says that she did not, because she must have had substantial evidence showing the ability to stop as well as to slacken, that plaintiff was bound by the testimony of the operator, and that no witness fixed the location and speed of the bus at a time and place when the operator would have had the ability to stop after plaintiff came into peril.Defendant adds, also, that the operator testified to an immediate slackening of the bus, and that plaintiff is bound thereby.In considering whether plaintiff made out a submissible case, we consider the evidence in the light most favorable to plaintiff, though defendant had a verdict.Counts v. Kansas City Southern Ry., Mo., 340 S.W.2d 670, 672;Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74.Plaintiff's InstructionNo. 4, the humanitarian submission, included the following: '* * * to have, by the exercise of the highest degree of care, avoided the collision mentioned in the evidence, by having stopped said bus or by having sufficiently slackened the speed thereof and that defendant's operator failed to do either and was thereby negligent, * * *.'Defendant insists that since this submission was in the disjunctive it was necessary that...