Floyd v. St. Louis Public Service Co.

• Decision Date: 09 May 1955
• Docket Number: No. 1,No. 44468,44468,1
• Citation: 280 S.W.2d 74,365 Mo. 247
• Parties: Arthur FLOYD and Emma Floyd, Appellants, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Griesedieck-Western Brewery Company, a Corporation, Respondents
• Court: Missouri Supreme Court

Page 74

280 S.W.2d 74

Arthur FLOYD and Emma Floyd, Appellants, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Griesedieck-Western Brewery Company, a Corporation, Respondents.

No. 44468.

Supreme Court of Missouri, Division No. 1.

May 9, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 13, 1955.

Glennon T. Moran, Herman M. Katcher, Sherman Landau, St. Louis, for appellants.

Lloyd E. Boas, Lester F. Stephens, St. Louis, for respondent St. Louis Public Service Co.

F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent Griesedieck-Western Brewery Co.

HOLMAN, Commissioner.

Plaintiffs (appellants) instituted this action seeking to recover $15,000 damages from defendants St. Louis Public Service Company and Griesedieck-Western Brewery Company (respondents) for the death of their minor son, Francis Floyd. The verdict of the jury was in favor of both defendants. Plaintiffs have appealed.

Francis, then 15 years old, was instantly killed at about noon on October 10, 1952, while riding his bicycle westwardly in the 6500 block of Delmar Boulevard in University City, Missouri, on his way home from school for lunch.

We will attempt to state such facts as may be necessary for an understanding of the issues determined herein. There is considerable conflict in the testimony as to just what occurred immediately preceding the tragedy. An effort will be made to point out the more important discrepancies.

A truck, headed west and belonging to the defendant Brewery Company, was parked on the north side of Delmar Boulevard almost in front of the House of Liquors, for the purpose of making a delivery. The driver of the truck testified that the front end was 2 feet from the curb and the outside rear dual wheel was from 6 inches to one foot away. Other witnesses stated that it was parked in the usual manner and a number of others had it farther in the street, some saying that it appeared to be double-parked. The bus operated by the other defendant was traveling west following a straight course. The deceased was also riding his bicycle in a westerly direction. According to most of the witnesses, the bus was passing the boy as he was alongside the beer truck. The witnesses vary considerably in their estimate of the distance between the bus and truck, the minimum being 2 feet and the maximum fixed at 6 feet.

It appears that at this point the youth became confused or excited and the bicycle 'wobbled' and he turned into or fell against the bus about midway between the front and rear. The force of this contact apparently knocked him into the truck and he then fell into the street and the rear wheel of the bus passed over his head. This version of the manner of death was substantiated by evidence of considerable blood on the wheel of the bus. However, Mr. and Mrs. Thomas, who were in a car immediately behind the bus, testified positively that the bus did not run over the boy. Each of them stated the lad apparently started to go around the rear of the bus and his bicycle became entangled with some part of the bus, thus throwing the deceased into the truck. They further said that his head struck the truck with considerable force and he then fell motionless to the pavement.

There was some testimony to indicate that the driver of the bus did not sound a warning as he approached and passed the deceased upon the bicycle. It appears from the transcript that the driver of the bus was in the courtroom during the trial but was not called as a witness.

The instructions given at the request of plaintiffs predicated the liability of defendant Public Service Company upon a finding that said defendant failed to keep a lookout and failed to swerve said bus to the south as it overtook said child and thereby failed to allow sufficient clearance between the bus and said child, and further failed to sound a timely warning of the approach of said bus. The submission against defendant Brewery Company required a finding that said defendant's truck was not parked parallel with the curb and was not parked as close to the right side of the street as practicable.

During the course of the trial the plaintiffs offered in evidence the following sections of an ordinance of University City:

'Section 1001.1 Definitions: Wherever in this Article the following terms are used they shall have the meanings respectively ascribed to them in this section. * * * Roadway: That portion of a street or highway between the regularly established curb lines or that portion improved and intended to be used for vehicular traffic. * * * Driver: The driver of any vehicle, except a motor vehicle, including the rider of a horse or other animal and the rider of a bicycle. Section 1001.32 Standing or Parking Close to Curb: (a) Except when necessary in obedience to traffic regulations or traffic signs or signals, the operator of a vehicle shall not stop, stand or park such vehicle in a roadway other than parallel with the edge of the roadway, headed in the direction of traffic, and with the curb-side wheels of the vehicle within one foot of the edge of the roadway * * *. Section 1001.53 Overtaking a Vehicle: * * * An operator or driver overtaking and desiring to pass a vehicle shall sound his signaling device, and the operator or driver of the vehicle so overtaken shall promptly, upon such signal, turn his vehicle as far as reasonably safe and possible to the right in order to allow free passage on the left of his vehicle. * * *'

Plaintiffs had pleaded these sections in their petition and alleged the violation thereof, together with certain assignments of common-law negligence. When the offer was made, various grounds of objection were interposed by each defendant. The court indicated that it was about to overrule the objections when it developed that plaintiffs did not intend to submit the case to the jury upon the issue of negligence based upon a violation of this ordinance, as indicated by the following:

'Mr. Moran: Well, at this time, plaintiff requests that he be allowed to read to the jury the ordinances, the portions of the Municipal Code of University City which were set out in the record yesterday.

'The Court: It is not your intention, is it, to instruct or to go to the jury on violation of the ordinance?

'Mr. Moran: At the present time, it is not my intention to go to the jury on violation of the ordinance.

'The Court: In view of the fact that it is not the intention of counsel to go to the jury or offer instructions on the violation of the ordinance, the objection will be sustained.'

Plaintiffs now contend that the ordinance should have been admitted in evidence. With this we agree. It is well settled that, in an action based upon common-law negligence, an injured party may prove a violation of an ordinance as tending to prove negligence on the part of the defendant or in an effort to disprove the defense of contributory negligence. Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761; White v. Hasburgh, Mo.App., 124 S.W.2d 560; Hart v. Skeets, 346 Mo. 1118, 145 S.W.2d 143; McPherson v. Premier Service Co., Mo.App., 38 S.W.2d 277.

Any evidence offered by plaintiffs which tended to prove negligence on the part of the defendants in the respects pleaded, or want of negligence on the part of...