DeVoto v. St. Louis Public Service Co.

• Decision Date: 16 September 1952
• Docket Number: No. 28403,28403
• Citation: 251 S.W.2d 355
• Parties: DE VOTO v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 355

251 S.W.2d 355

DE VOTO v. ST. LOUIS PUBLIC SERVICE CO.

No. 28403.

St. Louis Court of Appeals, Missouri.

Sept. 16, 1952.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 17, 1952.

Carroll J. Donohue, Salkey & Jones, St. Louis, for appellant.

Frank Coffman, E. H. Schwarzenbach, Thomas M. Gioia, St. Louis, for respondent.

ANDERSON, Justice.

This is an action by George J. DeVoto, as plaintiff, against defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged to have been sustained by plaintiff on March 25, 1948, when he was struck by one of defendant's busses while crossing Grand Boulevard in the City of St. Louis. The trial below resulted in a verdict and judgment for plaintiff in the sum of $7,000. From this judgment, defendant has appealed.

The accident happened within the intersection of Grand Boulevard and Shenandoah Avenue at about 8:45 p. m. Grand Boulevard runs north and south, and Shenandoah Avenue runs east and west. The record discloses that Shenandoah Avenue at its intersection with Grand Boulevard does not extend directly across the latter, but that the north curb line of Shenandoah Avenue, west of Grand Boulevard, is approximately a prolongation of the south curb line to the east. At the time plaintiff was injured he was walking directly eastward in the pedestrians' crosswalk from the west curb of Grand Boulevard to the southeast corner of the intersection. The defendant's bus which was involved was westbound on Shenandoah Avenue.

The charges of negligence submitted to the jury were that: 'Defendant negligently failed and omitted to keep and maintain a careful and vigilant watch and lookout for persons traveling eastwardly across Grand Boulevard at said intersection; and negligently failed and omitted to sound a horn or give any warning to plaintiff of the approach and movement of said bus.'

Appellant contends that no case for the jury was made on said issues, and for that reason the court erred in refusing to sustain defendant's motion for a directed verdict in its favor. This necessitates a review of the evidence most favorable to plaintiff's cause.

Plaintiff testified that before stepping into Grand Boulevard he looked toward the north and observed that the street was clear. He then looked toward the south and saw no traffic approaching from that direction. He also stated that at the time he stepped off the curb he could see east on Shenandoah for a quarter of a block, but observed no traffic approaching from the east. There was no bus standing at the intersection at the stop sign on the east side of Grand Boulevard. Plaintiff then proceeded to cross the street. He testified:

'I got past the southbound track in the middle of the northbound track * * * I looked south and saw no traffic coming that way * * * I was stepping past the east track * * * about a foot and a half.

'Q. What did you see then? A. I saw this light coming at me; I looked up quick and I saw that big light across there with the words 'Tower Grove'.

'Q. What was it you saw there? A. The bus--the Public Service Bus * * * it was right on me, about four or five feet from me. No chance to get away from it, I kind of turned some to get away, but he slammed into me and knocked me down.

* * *

* * *

'Q. Now, Mr. DeVoto, at that time, right before this bus struck you, did you hear any horn or warning? A. No.'

Plaintiff further testified that at all times while crossing Grand Boulevard he was in the pedestrians' lane, which was marked off by two white lines. He further stated that he proceeded across the street at a brisk walk. He also stated that he was struck by the front end of the bus.

Oscar Stuesse, a news vendor, testified for plaintiff. He testified that on the occasion in question he was employed in selling newspapers at the intersection and that he saw the accident. He stated that the bus struck the plaintiff when the latter was in 'the track from the south'; that plaintiff was knocked down by a westbound Tower Grove bus; and that he did not see the bus before the accident happened. The witness stated:

'I seen it the same time--I seen him the same time I seen the bus .

'Q. You looked up and the bus struck Mr. DeVoto? A. Yes.

* * *

* * * 'Q. I say, did you see the bus strike Mr. DeVoto? A. Yes.

'Q. You are sure the bus struck him? A. Yes.'

The witness further testified that the bus was traveling 'a little faster than a man walks'.

Plaintiff testified that visibility at the intersection was good . There are street lights and a number of electric signs on all four corners. The intersection is in a business area, and three doors from the southeast corner is a motion picture theatre with a marquee which was lighted at the time. Plaintiff's evidence was that the area was 'as light as day'.

Richard Eckstrand, a police officer, testified that he arrived at the scene of the accident shortly after it occurred and saw Mr. DeVoto lying in the northbound streetcar tracks. The officer's report was read in evidence without objection. It stated: 'Louis Praprotnik stated that he did not see the injured man before or after the accident until he made his usual bus stop to load and unload passengers on the west side of Grand at Shenandoah when some unknown person informed him that the bus he was operating just struck a man on Grand Avenue.'

Frank Sirota, a police officer, testified that when he got to the scene of the accident he saw a man lying in the northbound streetcar tracks and in the pedestrians' lane. He stated: 'I talked to the bus driver and I asked him about it, and he said he was not aware of the fact that he had an accident, he said he didn't notice it until some person came up and told him about it.'

Joseph P. Sorensen, a passenger on the bus, testified that the bus came to a stop before entering Grand Boulevard, then proceeded diagonally across the intersection to the regular stopping place west of Grand Boulevard. He further stated that as the operator of the bus opened the door of the bus to admit passengers someone came running across the street shouting to the bus driver that he had had an accident.

Charles W. Moore, a passenger on the bus, testified that the speed of the bus as it crossed Grand Boulevard was five or six miles per hour. He further testified that when the bus stopped on the west side of Grand Boulevard 'there was some man came and told him (bus driver), 'Driver, you hit a man crossing Grand''. He also stated that he saw Mr. DeVoto 'lying down in the northbound streetcar rails, or somewhere near there'. He further testified that the bus traveled southwestwardly across Grand Boulevard at about a forty-five degree angle.

Louis F. Praprotnik, the bus operator, testified that when he arrived at the east side of the intersection he made a boulevard stop; that his bus was three or four feet north of the center line of Shenandoah Avenue when he made the boulevard stop; that the intersection was well lighted and the weather was clear; that after making the stop he proceeded across Grand Boulevard at about three to five miles per hour and that he did not see anyone walking eastwardly in the crosswalk between the southwest corner and the east side of Grand Boulevard at the time. The witness further testified that after he had driven the bus across Grand Boulevard and was stopped on the west side thereof a man came to the front door of the bus and informed him that he had just struck a man on Grand Boulevard. He stated that he thereafter saw Mr. DeVoto lying in Grand Boulevard between the northbound and southbound streetcar tracks. He stated that while driving across Grand Boulevard he did not sound the horn on the bus or give any warning; and that he did not see Mr. DeVoto on the street at that time.

There is no merit to the contention that plaintiff failed to make a case for the jury on the negligence submitted. There was evidence that plaintiff stepped off the west curb of Grand Boulevard and walked directly across the street under lighting conditions which were described as 'light as day'. Grand Boulevard at that point, according to the evidence, is fifty or fifty-five feet from curb to curb. Plaintiff was past the center line of Grand Boulevard when he was struck, so that, according to his evidence, plaintiff walked over twenty-five feet in Grand Boulevard in plain sight of the bus operator as the bus approached and entered the intersection. The bus driver admitted he did not see plaintiff at any time prior to the accident. His failure to see plaintiff under the facts and circumstances...