Diel v. St. Louis Public Service Co.

• Decision Date: 19 February 1946
• Citation: 192 S.W.2d 608,238 Mo.App. 1046
• Parties: Frank Diel, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant
• Court: Missouri Court of Appeals

192 S.W.2d 608

238 Mo.App. 1046

Frank Diel, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

February 19, 1946

Appeal from the Circuit Court of the City of St. Louis; Hon. F. E Williams, Judge.

Affirmed.

Mattingly Berthold, Jones & Richards for appellant.

(1) The trial court should have directed a verdict for the defendant. (2) The trial court committed reversible error in submitting case to the jury on the vigilant watch ordinance because plaintiff was guilty of contributory negligence as a matter of law and as against primary negligence of the defendant contributory negligence of plaintiff is a complete defense. Farris v. Thompson, 168 S.W.2d 439, 443, 444; State ex rel. Kansas City Southern R. Co. v. Shain et al., 105 S.W.2d 915, 918; Dempsey v. Horton (Mo.), 84 S.W.2d 621, 625, 626; Poague v. Kurn et al. (Mo.), 140 S.W.2d 13, 16; Hill v. St. Louis Public Serv. Co. (Mo.), 64 S.W.2d 633, 636, 637; Borrson v. Mo. K. & T. R. Co. (Mo.), 172 S.W.2d 826 835, 846, 847, 848, 849; Ashby v. Illinois Terminal R. Co. (Mo. App.), 132 S.W.2d 1076, 1078; Young v. St. Louis Public Service Co. (Mo. App.), 57 S.W.2d 717, 720; Zlotnikoff v. Wells, 295 S.W. 129, 130, 131; Carton v. St. Louis-San Francisco Ry. Co. (Mo.), 102 S.W.2d 608, 612; State ex rel. Wells v. Haid et al., Judges (Mo.), 25 S.W.2d 92. (3) The evidence was insufficient to make a case for plaintiff under the humanitarian doctrine. State ex rel. Alsup v. Tatlow et al., Judge (Mo., banc), 144 S.W.2d 140, 141, 142; Gosney v. May Lumber & Coal Co. et al. (Mo.), 179 S.W.2d 51, 52, 53, 54; Knorp v. Thompson (Mo. App.), 167 S.W.2d 105, 113, 114; Bresler v. Kansas City P. S. Co. (Mo. App.), 186 S.W.2d 524, 529; Neill v. Alton R. R. Co. (Mo. App.), 113 S.W.2d 1073; Farris v. Thompson, 168 S.W.2d 439, 444; Pentecost v. St. Louis Merchants' Bridge Term. R. R. Co. (Mo.), 66 S.W.2d 533; Robards v. Kansas City P. S. Co. (Mo. App.), 177 S.W.2d 709, 712, 713; Sullivan v. Atchison, T. & S. F. Ry. Co. (Mo.), 297 S.W. 945, 949, 950; Hendrick v. Kurn (Mo.), 179 S.W.2d 717, 719, 721; Hutchison v. Thompson (Mo. App.), 167 S.W.2d 96, 103, 104. (4) The trial court committed reversible error in refusing to give defendant's requested instruction lettered "B." Mendenhall v. Neyer et al. (Mo.), 149 S.W.2d 366; Clark v. Reising (Mo.), 107 S.W.2d 33. (5) The giving of plaintiff's Instruction No. 2 was error because it conflicts with defendant's sole cause Instruction No. 7. The jury were not required to find that plaintiff was in inextricable peril. Smithers v. Barker, 111 S.W.2d 53; Robards v. Kansas City P. S. Co. (Mo. App.), 177 S.W.2d 709, 712, 713; Bresler v. Kansas City P. S. Co., 186 S.W.2d 524, 529.

Everett Hullverson for respondent.

Orville Richardson of counsel.

The demurrer to the evidence could only be sustained if the facts in evidence and the legitimate inferences which might reasonably be drawn therefrom, when viewed in that light most favorable to the plaintiff and accepted as true, were so strongly against the plaintiff as to leave no room for reasonable minds to differ, compelling all reasonable men in the honest exercise of a fair, impartial judgment to draw the same conclusion against the plaintiff. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 954; Courtney v. Ocean Accident & Guarantee Corp., 346 Mo. 703, 142 S.W.2d 858, 860. (I) Plaintiff was not contributorily negligent as a matter of law and the court did not err in overruling the motion for a directed verdict and in submitting the case to the jury on a violation of the vigilant watch ordinance. (a) Cases involving railroad crossings in rural districts are not in point in pedestrian street car cases in city streets where ordinances require a vigilant watch by the motorman. Chervek v. St. Louis Public Service Co. (Mo. App.), 173 S.W.2d 599, 603. (b) Plaintiff was walking at a moderate gait, attentive to his safety and looking not only for the car approaching from his right but also for automobile traffic which might appear from his left. He walked directly toward a regular car stop to board the car in a lighted city intersection where he had a right to presume that the motorman was obeying the St. Louis vigilant watch ordinance and had seen him approaching and signalling. He heard no bell sounded by the motorman indicating his intention to pass through without stopping. He could not be convicted of contributory negligence because of a mere error in an estimate of speed and distance under the circumstances.

(1) His actions bespoke care, not negligence, and should have made his intention to cross the track clear to a vigilant motorman whom he had a right to expect to be at the controls. Kent v. Kiel (Mo. App.), 97 S.W.2d 885, 887; Williams v East St. Louis Ry. Co., (Mo. App.), 100 S.W.2d 51, 54. (2) Mere estimates of speed and distance are inconclusive and not binding. State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406, 409; Johnson v. Dawidoff (Mo.), 177 S.W.2d 467, 471; Scott v. K. C. Public Service Co. (Mo. App.), 115 S.W.2d 518, 523. (3) Misjudgment of the speed of a street car approaching from a head-on angle of vision will not convict of contributory negligence as a matter of law. Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14, 18; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762, 765; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 158; Murray v. St. Louis Transit Co., 108 Mo.App. 501, 83 S.W. 995, 997; Jordan v. St. Joseph Ry., L. H. & P. Co. (Mo.), 38 S.W.2d 1042-44; Harting v. E. St. Louis Ry. Co. (Mo. App.), 81 S.W.2d 973, 975. (4) He had a right to rely upon the presumption that the motorman was obeying the vigilant watch ordinance and would see him and note his intention to board the street car. Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755, 762; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 158. (5) He had a right to presume that the motorman was obeying the vigilant watch ordinance and had seen his signal to stop and would stop at the regular car-stop directly toward which plaintiff was walking. Goggin v. Wells (Mo. App.), 249 S.W. 702, 703; Heigold v. United Rys. Co. of St. Louis, 308 Mo. 142, 271 S.W. 773, 775; Lackey v. Wells, 288 Mo. 120, 231 S.W. 956, 960; Sugarwater v. Fleming (banc), 316 Mo. 742, 293 S.W. 111, 114; Unterlachner v. Wells (Mo.), 278 S.W. 79, s. c., 317 Mo. 181, 296 S.W. 755. (6) The failure of the motorman to sound a warning entitled plaintiff to presume that he had been seen signalling for a stop at the regular car stop toward which plaintiff was moving. Willi v. United Rys. Co. of St. Louis (Mo.), 274 S.W. 24, 25, s. c., 205 Mo.App. 272, 224 S.W. 86; Hawkins v. Wells (Mo. App.), 297 S.W. 193, 195; Wilson v. Wells (Mo.), 13 S.W.2d 541, 544; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762, 764. (II) The court did not err in overruling the motion for a directed verdict and in submitting the case to the jury on a violation of the humanitarian doctrine. (a) Defendant's duty did not begin only when plaintiff took the last step onto the track. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617, 624; Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S.W. 27, 30; Kloeckener v. St. L. P. S. Co., 331, 396, 53 S.W.2d 1043, 1044. (b) The danger zone is of variable limits and is reached without fine distinctions. Where it commences is ordinarily a question of fact for the jury. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368, 372; Hoodenpyle v. Wells (Mo. App.), 10 S.W.2d 331, 333; Woods v. Kurn (Mo. App.), 183 S.W.2d 852, 855. (c) There is a well established distinction between awareness of the approach of a vehicle and obliviousness to peril of an intended but unknown movement of it. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 763; State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 336; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, 1069. (d) Plaintiff was in peril from the moment he left the curb, and was oblivious to his peril. He was at least in imminent peril when a step or two from the track. He was almost across the track when struck and a checking of the speed of the car for the barest fraction of a second would have avoided his injury. Hoodenpyle v. Wells (Mo. App.), 10 S.W.2d 331, 333; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 159; Crews v. K. C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 57-59; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 336; Goggin v. Wells (Mo. App.), 249 S.W. 702, 704. (III) There was no conflict between instruction No. 2 and defendant's sole cause instruction No. 7 and the court did not err in giving instruction No. 2. (a) The assignment of error is too general and presents nothing for review. Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006, 1009; Luechtefeld v. Marglous (Mo. App.), 151 S.W.2d 710, 715. (b) The evidence was not sufficient to support a sole cause submission. Crews v. K. C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 59. (c) The failure of defendant to produce the motorman as its witness alone authorized an inference unfavorable to defendant, which could be considered in passing on the sufficiency of plaintiff's case. Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023, 1028; Woods v. Kurn (Mo. App.), 183 S.W.2d 852, 856. (d) The "tail" of plaintiff's instruction No. 2 did not conflict with defendant's sole cause instruction No. 7. Ramel v. K. C. Public Service Co. (Mo. App.), 187 S.W.2d 492, 497. (e) It was not necessary to submit whether plaintiff was in inextricable peril or oblivious to his peril. Perkins v. Terminal R. R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 921. (IV) The court did not abuse its discretion or commit reversible...