Chervek v. St. Louis Public Service Co.

• Decision Date: 06 July 1943
• Docket Number: No. 26353.,26353.
• Citation: 173 S.W.2d 599
• Parties: CHERVEK v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

173 S.W.2d 599

CHERVEK v. ST. LOUIS PUBLIC SERVICE CO.

No. 26353.

St. Louis Court of Appeals. Missouri.

July 6, 1943.

Appeal from St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by Marie Rose Chervek against the St. Louis Public Service Company to recover for injuries sustained when automobile in which plaintiff was a guest collided with defendant's street car. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. T. Mattingly and Fred Berthold, both of St. Louis, for appellant.

Everett Hullverson and Erwin C. Fischer, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a suit for personal injuries sustained by plaintiff while riding as a guest in an automobile that was involved in a collision with a southbound street car at Broadway and Nebraska avenues in the city of St. Louis on September 7, 1941. The case was submitted to the jury on the humanitarian doctrine and on a violation of what is known as the vigilant watch ordinance of the City of St. Louis. The defense was a general denial and a plea of contributory negligence.

Plaintiff was riding as a guest in an automobile owned and operated by Edward C. King; she was seated between William Hager and King on the front seat. There were four girls and a young man seated in the rear seat. Plaintiff testified that she was not paying a great deal of attention, and that she did not see the street car before the collision; the last thing she remembered they were slowing up, and then she woke up in the hospital.

Edward C. King, the driver of the automobile, testified by way of deposition that he was driving north on Broadway intending to turn into Nebraska Avenue. Broadway, on which the street cars run, is a north and south street, and Nebraska runs from Broadway in a northwest direction rather than west at a right angle. King said that he had been traveling north on Broadway to the east of the street car tracks, and that as he neared Nebraska avenue he started to make the angle to cross the street car tracks and continue on Nebraska avenue, at which time he saw the southbound street car which later struck his automobile, and it was a good block away; that he had been traveling 25 miles an hour but was slowing up all the time. He said that when he reached the southbound street car tracks, he had to stop for southbound traffic on Broadway; at that time the front wheels of his automobile were just over the east rail of the southbound street car tracks and the street car was about 325 feet away. He further said that after he had stopped on the southbound street car tracks the street car was 180 feet from him, and that after three automobiles traveling south on Broadway had passed in front of him, he started forward to get off the tracks but did not make it; that his automobile moved forward about 15 feet when the street car which had never reduced its speed struck his automobile.

Amos C. Clouser, the operator or motorman of the street car, testified that his street car was going south on Broadway at a speed of 20 to 25 miles an hour, and that he passed a northbound street car at the intersection of Broadway and Nebraska avenues when his street car was about three-fourths of the way across Nebraska avenue, and that when he first saw the King automobile it was about 40 feet from the front of his street car; that at that time the King automobile was traveling north on the northbound street car tracks, and that it suddenly cut over into the southbound tracks and came on north towards his street car, and that he immediately applied his brakes but did not have time to stop the street car or avoid the collision.

The foregoing is a sufficient statement of the evidence from which to gain an understanding of the theory upon which the case was tried, and further pertinent facts will be mentioned in the course of the opinion.

The verdict of the jury was for the plaintiff for $3,700, and after unavailing motion for a new trial judgment was rendered and defendant has perfected its appeal to this Court.

The two theories upon which plaintiff sought a recovery, i. e. a violation of the vigilant watch ordinance, and the humanitarian doctrine, while requiring similar proof in many respects, are different in their nature. An answer to the one is contributory negligence, while contributory negligence plays no part in the other. The vigilant watch ordinance is in effect a declaration of a common law rule of negligence, and the motorman of a street car is guilty of common law negligence if he fails to exercise ordinary care to observe persons and vehicles on or near the tracks. Murray v. Kansas City Public Service Co., Mo.Sup., 61 S.W.2d 334. In this case the ordinance was both pleaded and introduced in evidence. Was the proof sufficient to submit to the jury the question of whether it was violated? And in determining whether plaintiff made a submissible case, on either or both theories, it is the duty of the court to take the evidence in plaintiff's favor as true and reject all evidence contrary thereto; not only so, but plaintiff is entitled to all reasonable favorable inferences arising from the evidence as a whole. At the time the King automobile stopped on the southbound street car track, according to plaintiff's evidence, to allow traffic to pass in front of it, John McCarthy, a witness for plaintiff, says the street car was 100 to 125 feet away; Edward King says it was 180 feet away; William Hager places it at 230 to 240 feet away; and Leta Biggs, one of the girls in the automobile, says from one-half to two-thirds of a block away, and this witness says the northbound street car was also from one-half to two-thirds of a block past the crossing. The motorman, Clouser, says the street car was approaching the crossing at 20 or 25 miles an hour, and that with the appliances at hand he could stop the street car in 20 feet when going 15 to 20 miles an hour, or in 45 to 55 feet when going 20 to 25 miles an hour. It was agreed during the course of the trial that a speed of 20 miles an hour would be 30 feet a second and at 25 miles an hour would be 37½ feet a second. While these figures are not mathematically accurate they are approximately so, and we adopt them for illustration. The motorman said it takes the brakes three-fourths of a second to begin to operate. Giving the evidence the most favorable light to defendant, if the street car was only 100 feet away when the automobile reached the southbound track, if the motorman who had his foot on the brake at the time had applied his brakes while running 25 miles an hour the brakes would begin to take effect after the street car had run 25 feet and would have stopped the street car in the next 55 feet, or a total of 80 feet, and there would have been no collision. If the street car was 180 feet away, as King says, it would have been stopped 100 feet before reaching the automobile. The motorman says he saw the automobile and it was traveling the same speed as the street car, but he excuses himself of negligence by saying the automobile was not on or approaching the southbound street car track until the street car was within 40 feet of it. But we must be governed by plaintiff's evidence in ruling on the demurrer, and according to four of plaintiff's witnesses the motorman had ample time to stop the street car after the automobile was on the track or moving towards it, as the vigilant watch ordinance required him to do. The only answer to plaintiff's evidence on this issue was either that the collision did not occur as plaintiff's witnesses said it did, which would be a question for the jury to determine, or that plaintiff was guilty of contributory negligence, which if shown by substantial evidence also would have been a question for the jury to determine. But there was no proof of contributory negligence on plaintiff's part; she was not the driver of the automobile, and the evidence was that she had no control over the driver. What could she have done to prevent the collision? She did not see the street car at all, but suppose she had, what could she have done to prevent the collision? The plea of contributory negligence was that plaintiff allowed and permitted herself to be driven toward and upon the street railway track and immediately in front of and in close and dangerous proximity to a moving street car when she saw or heard, or by the exercise of ordinary care could have seen or heard, the moving street car in time thereafter to have avoided the collision. But the proof on which defendant relied to exculpate itself from liability was that King the driver of the automobile was in a safe place east of the southbound street car tracks and suddenly and without warning turned and drove in front of the street car when it was only 40 feet away. If that is what occurred and we take defendant's evidence as a guide, there was nothing that either the plaintiff or the motorman could have done to prevent the collision. There was no time for plaintiff to protest or to warn King of the danger even if she had sensed it. Then taking plaintiff's evidence as a guide, there was no negligence on her part in failing to warn King for two reasons: (a) If the street car was 325 feet away there was no danger in King attempting to cross in front of it, and (b) besides King already saw the street car at a safe distance away. It would have availed nothing for her to have warned King of the approach of the street car, when King already saw it; he had seen it from the time it was about a block away and says he thought it would stop. State ex rel. Wells v. Haid, 324 Mo. 759, 25 S.W.2d 92; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rosenstein v. Lewis Automobile Co., Mo. App., 34 S.W.2d 1023. The case was properly submitted to the jury on the theory of a violation of the vigilant watch ordinance.

The humanitarian doctrine proceeds upon the precepts of humanity...