Caswell v. St. Louis Public Service Co.

• Decision Date: 09 November 1953
• Docket Number: No. 1,No. 43460,43460,1
• Citation: 262 S.W.2d 40
• Parties: CASWELL v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 40

262 S.W.2d 40

CASWELL v. ST. LOUIS PUBLIC SERVICE CO.

No. 43460.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1953.

Mattingly, Boas, & Richards and Lloyd E. Boas, St. Louis, for appellant.

Lyng, MacLeod & Davidson and Russell N. MacLeod, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

A jury in the Circuit Court of the City of St. Louis returned a verdict for plaintiff in the sum of $15,000 for personal injuries sustained when defendant's northbound streetcar collided with her northbound automobile on Broadway in said city. Upon hearing defendant's motion for new trial, it was ordered that if plaintiff within five days remit $6,500 from the judgment entered on said verdict, the motion would be overruled, otherwise the motion was sustained; with which conditional order of remittitur plaintiff made timely compliance. The motion thereupon stood overruled and final judgment was entered in plaintiff's favor in the sum of $8,500. Defendant appealed.

The cause was submitted upon plaintiff's requested Instruction No. 1, hypothesizing humanitarian negligence of defendant if the jury found that as plaintiff's automobile and defendant's streetcar proceeded northward on Broadway the streetcar collided with the rear end of plaintiff's automobile, and that prior thereto:

(1) Plaintiff's automobile was in front of the defendant's streetcar, in close proximity to the track and within the overhang of the streetcar;

(2) Plaintiff was in a position of imminent peril of being struck and collided with by the streetcar and was oblivious thereto;

(3) The operator of the streetcar saw or could have seen plaintiff's automobile on the street there, in the position of imminent peril, and that plaintiff was oblivious thereof;

(4) Thereafter the operator with the means and appliances at hand and with safety to the streetcar, the occupants thereof and other persons and property thereabouts could have slackened the speed of the streetcar and avoided the collision;

(5) The operator did fail to slacken the speed of the streetcar, and in doing so, failed to exercise ordinary care and was negligent; and

(6) Plaintiff was injured as a result of such negligence.

Defendant contends that no submissible case was made, the instruction above outlined submitted findings of fact not supported by substantial evidence, and said instruction unduly extended the danger zone.

In determining the sufficiency of the evidence to sustain the judgment of the trial court, we accept plaintiff's evidence as true, disregard defendant's evidence except as it may aid plaintiff's case, and give plaintiff the benefit of every legitimate inference. 3 Missouri Digest, Part 2, Appeal and Error, k 989.

Plaintiff was an employee of Reynolds Metal Company. On the morning of June 4, 1951, she was driving a Plymouth sedan northward on Broadway to her place of employment. Riding with her were three fellow employees, Mrs. Loretta Kozenczak, Mrs. Florence Rex and Mrs. Ola Brown. Mrs. Brown was absent from the city at the time of the trial.

Broadway runs north and south and is intersected by DeSoto and one block north of DeSoto it is intersected by Talcott. The collision occurred between these intersections. South of DeSoto, Broadway is 65 feet from curb to curb, but northward from the north line of DeSoto it is only 50 feet in width for a distance of about 370 feet, where it again widens to 60 feet for a distance of about 70 feet until it intersects Talcott. Thus the block bounded by DeSoto on the south and Talcott on the north is about 440 feet in length. The narrowing of Broadway north of DeSoto is due to its east curb being 15 feet farther to the west than it is south of DeSoto.

Two sets of streetcar tracks extend along the center of Broadway. The east tracks are used for northbound streetcars and the west tracks for southbound streetcars. They occupy a space of 15 feet in width. Due, however, to a gradual curvature to the east as they extend northward from DeSoto, the tracks are not uniformly distant from the east curb. At the north curbline of DeSoto, the east rail of the east tracks is 20 feet, 4 inches from the east curb; 60 feet north of DeSoto it is 17 feet, 4 inches; 120 feet north of DeSoto it is 15 feet, 7 inches; 160 feet north of DeSoto it is 15 feet, 4 inches; 170 feet north of DeSoto it is 15 feet, 4 inches; 195 feet north of DeSoto it is 15 feet, 7 inches; 220 feet north of DeSoto it is 16 feet.

As plaintiff drove northward on Broadway and approached DeSoto, she was driving alongside and about two and one-half feet west of a line of cars parked on the east side of Broadway. She was then east of the east rail of the northbound streetcar tracks. As she crossed DeSoto, she moved westward, due to the narrowing of Broadway north of DeSoto. There was also a line of parked cars along the east side of Broadway north of DeSoto. As she crossed the intersection or shortly thereafter she got on or in close proximity to the tracks. 'It might have been right at the corner, a foot or so either way; it might have been right at the intersection. * * * They (her automobile wheels) were close to the tracks; whether they were on either side' she did not know. She was watching a bread truck parked at an angle on the east side of Broadway about 200 feet north of DeSoto, and had moved over 'a little more' to avoid it. She did not know if she was 'in the tracks or just on the other side of them'. She was travelling about 18 to 20 miles per hour and proceeded at that speed in the same path, close to the east rail or upon it. The truck, parked on an angle and with its back door open, extended a foot or two westward beyond the other parked cars. After she had passed about 20 feet beyond the truck, her automobile was struck in the left rear by defendant's northbound streetcar, which she had not seen; nor had she heard any warning, and was unaware of its approach until it struck her automobile. The streetcar pushed her automobile about 25 feet northwestwardly before it came to a stop at an angle across the tracks. The violence of the collison severely injured her.

On cross examination, plaintiff testified that after she had crossed DeSoto her automobile wheels were a 'little east, or a little west, or maybe right on the tracks; * * *.' Shown a deposition she had priorly given, which contained the question: 'And where was the left side of your car with reference to the east rail of the northbound tracks?', and the answer: 'I was east of it, I guess', she answered that she did not remember whether she made that answer, but 'they asked me about the accident and how it happened, so I guess that is what I said.'

On further cross-examination, plaintiff said she saw the truck as soon as she crossed the intersection and gradually started moving over. Again shown her deposition wherein she had answered a question in this manner: 'I had saw the truck parked, and I had eased over, and I had to go over to keep from sideswiping the truck'; and then the further question: 'In other words, you eased over further than what we have been talking about?', and the answer: 'Yes', she said if those answers and that question were in the deposition, that was the way she had answered. But she again testified that from the time she saw the truck she started angling over gradually, not suddenly.

Plaintiff further testified that she did not look into her rear view mirror before getting on the tracks; that she had no occasion to do so; that she looked to her side as she 'started easing over'.

On re-direct examination, plaintiff was shown the following questions and answers from her deposition, and reaffirmed the answers therein given:

'Q. Well, what was your position with reference to the eastern most or east track of the northbound tracks? A. I guess I was just about on the track, maybe a little west of the track.

'Q. What track? A. The east track.

'Q. You didn't change a whole lot, then? A. No; I just kind of tapered off.

'Q. We're talking about the left wheels of your car? A. Yes.

'Q. They were either east of the track or on it? A. Yes.'

On further cross-examination she testified:

'Q. Where were you with reference to the truck when you got on to--when your left wheels got on to the streetcar track? * * * A. I was either on them or close to them before I ever got to the truck.

'Q. What do you mean when you say 'close to them'? How 'close to them' is that? A. Well, that is just it. I don't know whether I was exactly on them, or whether I was an inch or two from then one way or the other; I really couldn't say.'

Mrs. Kozenczak's version of the collision was as follows: When plaintiff was driving south of DeSoto her automobile was on the right side of the tracts. As she crossed DeSoto she drove to her left toward the tracks. Witness did not know for sure whether plaintiff was on the tracks, or almost. 'Q. And when you say 'almost', was it a question of feet or inches? A. Just inches.' Plaintiff did not suddenly swerve to the tracks when she got to the parked truck. Plaintiff's automobile was struck at its left rear. The left rear fender, the wheel and the back end were struck. Plaintiff's car started to pull out before it got to the truck.

On cross-examination, witness said a Mr. Lucas from defendant's office took a statement from her, which she did not sign; that she told him, 'We were moving about fifteen miles per hour, but I don't know how far ahead of the streetcar we were driving, but there was a Bond Bread truck on the northeast, angled into the curb, with the rear door open, and we had to pull over to our left to get around the truck; and, as we did so, the streetcar struck the left rear fender of our auto, * * *.'

Mrs. Rex's version was as follows: Plaintiff got on to the streetcar tracks as she was crossing DeSoto, where [Broadway] starts narrowing; her left wheels were 'practically' on the track. Witness could not remember plaintiff swerving at all to avoid...