O'Donnell v. St. Louis Public Service Co.
| Decision Date | 19 February 1952 |
| Docket Number | No. 28321,28321 |
| Citation | 246 S.W.2d 539 |
| Parties | O'DONNELL v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Court of Appeals |
Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.
Mark D. Eagleton, Charles M. Warner and John H. Martin, all of St. Louis, for respondent.
HOUSER, Commissioner.
This is an action for personal injuries arising out of a collision between an automobile and a public service company bus in the City of St. Louis. Plaintiff, Thomas C. O'Donnell, a guest riding in the right front seat of the automobile, joined as defendants his host Carl Wallace (the owner of the automobile) and the public service company. The trial jury returned a verdict in favor of defendant Carl Wallace and for plaintiff and against the public service company in the sum of $5,000. The company has appealed from the judgment entered on the verdict, claiming that the trial court erred (1) in overruling its motion for a directed verdict; (2) in allowing counsel for the individual defendant to make an improper argument; (3) in instructing the jury orally; (4) in approving a verdict contrary to and against the weight of the evidence; and (5) in approving a verdict which is excessive.
This was a collision between the front end of the automobile and the rear end of the bus. It occurred at approximately 8 o'clock on the morning of March 18, 1949, in full daylight, on Skinker Boulevard near Rosebury Avenue. At that point Skinker, a north and south thoroughfare, is 70 feet wide. Clayton Road, an east and west street, is approximately 2 blocks south of Rosebury and there is a 'complete downgrade' from Clayton Road north to Rosebury--a 'decided' grade. The streets were covered with ice and snow. This was a general condition. It was 'slippery'--'very slippery and icy.' Barricades were erected, closing the Express Highway to all traffic. Skinker Boulevard was completely covered with ice and snow in the area where the accident occurred. The weather was clear and cold. Both vehicles were headed north on Skinker Boulevard.
Plaintiff testified that the left side of the automobile was about 5 feet east of the center line and the left side of the bus traveling approximately 6 feet east of the center line of Skinker Boulevard. The automobile was traveling 'about 20 miles per hour.' Traffic was 'very heavy.' At the time the Wallace automobile crossed Clayton Road there was traffic going north on Skinker, to the right of, behind and in front of the Wallace automobile and traffic moving to the south on Skinker Boulevard.
Plaintiff testified that when he first saw the bus 'it had indications it was slowing down * * * it had signs of slowing down * * * it seemed to lose momentum going down * * *.' Plaintiff 'could tell' it was slowing down, by the momentum '* * * could see it losing momentum.' Plaintiff told or 'yelled' to Wallace to 'watch that bus.' At that time the front end of the automobile was about 60 feet from the rear end of the bus, and the automobile was traveling about 20 miles per hour, driving on ice. Wallace immediately began to apply his brakes. The automobile moved about 20 feet from the time plaintiff exclaimed 'watch that bus' until Wallace started slowing down the automobile. Plaintiff did not notice whether there was a stop light on the rear of the bus, or whether the bus driver made any hand signals. He did not remember whether lights flashed on the back of the bus or not. There were no indications of a signal that the bus driver was going to stop. Plaintiff saw no signal of any kind indicating that the bus was slowing down.
When the bus started slowing down it came to a complete stop, traveling about 20 feet from the time plaintiff first noticed it slowing down until it reached a complete stop. The bus stopped about 3 feet east of the center line of Skinker Boulevard. The front of the automobile struck the rear of the bus. The automobile was traveling 15 to 20 miles per hour at the time of the impact. The automobile skidded on the ice when Wallace applied the brakes and 'it was a skidding motion when that car went into the back of the bus.'
Edgar D. Booker, a passenger sitting in the rear seat of the Wallace automobile, testified that when plaintiff said 'watch that bus' the front end of the automobile was approximately 40 feet from the rear of the bus; that after plaintiff shouted the witness could feel the application of the brakes in the motion of the car; that after the application of the brakes 'we slid along and crashed into the back of the bus'; that both vehicles were 4 or 5 feet from the center of Skinker after the accident; that the automobile was traveling about 15 miles per hour when it collided with the bus; that the bus and the automobile were both traveling about 20 miles per hour when he first saw the bus; that the bus had come to a complete stop at the time of the impact; that he noticed no signals, lights or hand signals indicating that the bus was going to stop; that you could tell the bus was stopping by the momentum of the bus; that although the bus was losing momentum and slowing down it had not stopped when plaintiff called out 'watch that bus'; that at that time the vehicles were approximately 40 feet apart; that it was 'slick'.
Mark Coleman testified for the plaintiff. He was driving an automobile in the center lane behind the Wallace automobile, traveling 20 to 25 miles per hour 'at tops'. He testified that the Wallace car was 30 or 40 feet behind the bus when he first noticed it; that 'all of a sudden, the front end (of the bus) went just a little to the right and he must have applied his brakes for it just come to a very abrupt stop', whereupon the Ford 'hit it in the back.' When he saw the bus stop the witness swerved his left wheel into a snow bank in the middle of the street. This turned him around and prevented a collision with the bus or the Wallace automobile. When he came to a stop he was 20 or 30 feet behind the Ford facing south, having spun completely around. He gave as his opinion that the speed of the Wallace automobile may have checked perhaps 5 miles an hour, stating that 'it was so sudden he couldn't have checked it too much', so that the Wallace car was traveling 15 to 20 miles per hour at the time of the impact. When the Wallace automobile was traveling about 30 feet behind the bus it was going 20 to 25 miles per hour, the same speed the witness' car was traveling.
Mark Coleman's wife Agnes gave testimony which was generally corroborative of the testimony given by her husband.
Marjorie Ann Hinrichs, for plaintiff, testified that she was a passenger on the bus; that there was another bus at the east curb of Skinker Boulevard and that the driver of the bus on which she was a passenger started to pass the bus at the curb; that 'a man came from behind the first bus and hailed ours and then the driver of the bus that I was on came to a stop' in the lane of traffic next to the center of Skinker Boulevard; that the driver let the man board the bus; that the man 'started to get on'; that she did not recall if the bus had started up or if the bus was stopped but that 'just at approximately that moment we were hit from behind by a car'; that the bus was stopped 'just long enough for this man to get on * * * long enough for the man to come out of the street, go up the steps of the bus and be up on the bus.' She testified that the bus 'came to a rather sudden stop'; that the driver 'applied his brakes and saw this man running.'
Plaintiff went to the jury on the theory that the stopping of the bus was so sudden and unexpected as not to give a reasonable and timely warning of intention to stop to the driver of the automobile.
Appellant claims that plaintiff's own testimony, by which he is bound, conclusively shows that defendant was not negligent; that the bus did not come to a sudden stop; that it was merely slowing down; that there was sufficient time after plaintiff observed its slowing down for him to react and warn the driver of the automobile; that at that time the vehicles were still 60 feet apart and that the bus traveled 20 feet thereafter before it came to a stop; that although plaintiff did not fix the speed of the bus, 'there was no such thing as a sudden stop made by the bus', considering the speeds of the vehicles as testified to by the various witnesses, the testimony of the plaintiff with respect to loss of momentum and distances between the vehicles, and his statement that the bus was noticeably slowing down when plaintiff saw it for the first time; that plaintiff cannot take advantage of the testimony of other witnesses which is inconsistent with his own testimony.
While it is true that a plaintiff in a personal injury suit is bound by the theory of liability set up by his own testimony and cannot take advantage of testimony offered by defendant's witnesses which is inconsistent and at war with his own theory of the case, which rule is announced in Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, and other cases cited by the appellant, we are unable to find any basis upon which to apply that rule in this case. Although we have earnestly searched the record for testimony given by plaintiff which negatives the testimony of witnesses other than plaintiff that there was an abrupt and sudden stop, we are unable to find any such testimony. Nor does plaintiff, in order to make his case, depend upon evidence from defendant's witnesses which clashes with plaintiff's testimony. It is true that he stated that the bus gave 'indications' and 'signs' that it was slowing down and that it 'seemed to lose momentum' but is it not true that in all visible stops, whether they be sudden or gradual, there are indications of a slowing down and a loss of momentum? Nor are we driven to the conclusion that there was no sudden stop by plain...
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