Dister v. Ludwig
| Decision Date | 11 June 1951 |
| Docket Number | No. 41899,41899 |
| Citation | 240 S.W.2d 694,362 Mo. 162 |
| Parties | DISTER v. LUDWIG. |
| Court | Missouri Supreme Court |
Walther, Hecker, Walther & Barnard and Harold F. Hecker, St. Louis, for appellant.
William L. Clinton, and Carleton & Clinton, St. Louis, for respondent, Orville Richardson, St. Louis, of counsel.
In this action plaintiff alleged that as he walked southward into the north portion of Chouteau Avenue in the City of St. Louis to board a westbound streetcar standing on the east side of its intersection with Theresa Street he was negligently struck and injured by an automobile driven westward by defendant. He recovered judgment for $8,100, and defendant appealed.
The cause was submitted under the humanitarian doctrine. Defendant assigns as error: (1) that no submissible case was made: (2) admission of prejudicially incompetent evidence, and (3) certain instructions given in behalf of plaintiff.
Chouteau Avenue extends east and west; Theresa north and south. Theresa intersects Chouteau on the north at a right angle, veers slightly to the east, and then leaves it on the south at a right angle. Two streetcar lines extend along the center of Chouteau, the south line being used for eastbound cars and the north line for westbound cars. It is 18 feet from the north curbline of Chouteau to the north rail of the north tracks. A safety zone, 5 feet and 6 inches in width, for alighting and departing passengers on westbound streetcars, extends 61 feet eastward on Chouteau from the intersection of Theresa. It is adjacent to the north rail of the westbound tracks. However, the north line of the safety zone is several feet shorter than its south line at the east end. To mark its eastern boundaries four metal buttons are diagonally set from the east end of its north line to the east end of its south line. The distance between the north curbline of Chouteau and the north line of the safety zone is 12 1/2 feet. Defendant's automobile, a red Oldsmobile, is 6 feet wide.
On the date plaintiff was injured, May 27, 1948, he was a bookkeeper, accountant and cashier for Viteena Feed Mills, which is located on the north side of Chouteau, 200 feet west of its intersection with Theresa. At 6:45 p. m., he left his office for the purpose of boarding a westbound streetcar at the intersection of Chouteau and Theresa to go to his home. There is a light pole at the northeast corner of the intersection. The west end of the safety zone is directly south of this light pole. As plaintiff proceeded westward to the corner he saw the streetcar coming west-ward. When he came to within two or three feet of the light pole, he saw the streetcar stopped with its front end at the west end of the safety zone. Its front doors were open for receiving passengers. At the same time he saw defendant's automobile at the east end of the safety zone, proceeding westward with its left side adjacent to the north line of the safety zone. He observed its speed and estimated it to be then travelling at 15 to 20 miles per hour. Plaintiff then testified: 'Well, I dashed across, I started across the street about two or three feet from the lamp post, east of the lamp post, at a slight angle to get the streetcar, and as I got to the safety zone line I was struck by this automobile'; and that the car brushed his left side causing him to fall, breaking his ankle. There was further evidence in behalf of plaintiff that defendant's automobile did not stop, swerve or sound any warning from the time he first saw it until it struck him. The automobile came to a stop at the point plaintiff fell.
On direct examination, plaintiff further testified:
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On cross examination, plaintiff further testified:
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Plaintiff introduced in evidence Section 2472 of the Revised Code of the City of St. Louis, an ordinance reading as follows: 'Stopping Behind and Passing Streetcars--The operator of a vehicle overtaking any streetcar stopped or about to stop for the purpose of receiving or discharging any passengers shall stop such vehicle to the rear of the nearest running board or door of such streetcar, and keep it stationary until any such passenger has boarded such car or reached a place of safety except that where a safety zone has been established, the vehicle need not be stopped before passing any such streetcar, but may proceed past such streetcar at a speed not greater than is reasonable and proper, and with due caution for the safety of pedestrians.'
Briefly stated, defendant's version, supported by her testimony and that of several guest passengers riding with her and other witnesses, was that as she drove west a streetcar overtook her and stopped at the streetcar stopping place. She saw plaintiff running westward on the sidewalk on the north side of Chouteau as though to catch the streetcar. She stopped near a trolley pole (31 feet east of the light pole). The man stopped, she believed, near the trolley pole. The streetcar began to move slowly away, she started her car, the man dashed across the street in a vain attempt to get the streetcar and he fell as he passed her automobile. Her automobile did not touch him at all. When plaintiff started to fall he was two or three feet in front of her automobile, almost to the safety zone, and he fell into the safety zone. She was travelling only 3 or 4 miles an hour when plaintiff fell, and stopped her automobile almost immediately. She was taken to the police station and released from custody after the police talked with plaintiff over the telephone and he told them he did not want her prosecuted.
Thus it is seen defendant's version of the happening is so completely at war with plaintiff's evidence, that no part of it may be seized upon by plaintiff to piece out his case except such parts thereof as may tend to support his version of the facts. Pentecost v. St. Louis Merchant's Bridge Term. R. Co., 334 Mo. 572, 66 S.W.2d 533, 535-536; Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S.W.2d 696, 697.
Upon the evidence above narrated, the trial court submitted the issue of defendant's negligence under the humanitarian doctrine on four specifications of negligence after plaintiff came into a discoverable position of imminent peril, to wit: failure, by the exercise of the highest degree of care with the means at hand, and with safety to herself, the automobile and its occupants, to have either stopped her automobile or sufficiently slackened its speed, or swerved her automobile, in time to have avoided striking plaintiff, or to have sounded a warning of her approach. Inasmuch as all four of these specifications of negligence were submitted in the disjunctive, there must be evidence to support the submission of each of them; otherwise the trial court was in error in submitting such as were not supported by the evidence. Carlisle v. Tilghmon, Mo.Sup., 159 S.W.2d 663, 665; Ayres v. Key, 359 Mo. 341, 221 S.W.2d 719. Therefore, did the evidence warrant the submission of all four? The answer to...
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