Fortner v. St. Louis Public Service Co.

• Decision Date: 12 November 1951
• Docket Number: No. 42107,No. 1,42107,1
• Citation: 244 S.W.2d 10
• Parties: FORTNER v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 10

244 S.W.2d 10

FORTNER v. ST. LOUIS PUBLIC SERVICE CO.

No. 42107.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 10, 1951.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.

Henry C. Stoll, Abraham Davis, St. Louis, for respondent.

VAN OSDOL, Commissioner.

Action for personal injuries instituted by plaintiff, a child seven years old, who was struck by defendant's southbound Broadway streetcar as the car started forward from a regular stop at the intersection of North Broadway and Thrush Avenue in St. Louis.

The jury returned a verdict for plaintiff for $35,000, and defendant has appealed from the ensuing judgment.

Plaintiff's case was submitted to the jury by plaintiff's principal Instruction No. 1, which is as follows, 'The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence the plaintiff alighted from defendant's southbound Broadway street car at the intersection of North Broadway and Thrush, and that after so alighting, plaintiff undertook to cross from the west to the east side of Broadway at said intersection in front of said street car, and that at said time the street car was at a standstill, and if you further find that while so crossing the street and when plaintiff was at a point in front of defendant's said southbound street car, if you find that he was, defendant's operator started the said street car in motion and that at said time the operator failed to exercise ordinary care to keep a reasonable lookout ahead, and that said street car struck and came into collision with plaintiff and injured him, if you so find, and if you further find that it was negligence on the part of defendant's operator to operate said street car in the manner aforesaid and that such negligence directly caused plaintiff's injuries, then your verdict must be in favor of plaintiff and against defendant.'

Defendant-appellant contends plaintiff did not make out a submissible case. It is said there was no substantial evidence tending to show plaintiff was in a position where he could have been seen by the operator of the streetcar. It is argued that, if defendant's motorman could not have seen plaintiff, a failure to look could not have been the proximate cause of plaintiff's injury. Defendant-appellant makes a further and kindred contention of error of the trial court in giving Instruction No. 1. Defendant-appellant urges the evidence does not justify the conclusion, and the instruction does not hypothesize that defendant's operator, in the exercise of ordinary care in keeping a lookout, could have discovered plaintiff's perilous position. Defendant-appellant also contends the jury's award is grossly excessive.

Defendant's streetcar tracks pass along North Broadway, a north-south street about fifty-five feet in width. Thrush Avenue, twenty feet wide between its curbs, approaches from the northeast and intersects the east side of North Broadway at an angle. Thrush Avenue at this point does not extend west of North Broadway. Defendant's streetcars southbound on North Broadway make a regular stop at Thrush. A safety zone about sixty feet long, provided for use of passengers of southbound streetcars, is situate on North Broadway west of the (west) southbound streetcar tracks. The south end of the safety zone is almost due west of the north curb of Thrush Avenue. It is about fifteen feet from the west edge of the safety zone to the west curb of North Broadway.

Plaintiff was injured a little after four o'clock in the clear afternoon of February 28, 1949. He and other children were returning from school. They boarded defendant's Broadway southbound streetcar at Halls Ferry Road. The streetcar was loaded with school children. Defendant's motorman had been accustomed 'to picking up school children at that point' on that particular schedule or run. When the streetcar reached the intersection of North Broadway and Thrush Avenue it made the regular stop beside the safety zone. Plaintiff and three or four other children alighted from the rear exit door. The other children passed westwardly over to the west curb of North Broadway; but plaintiff walked southwardly within the safety zone and to the left (eastwardly) out in front of the streetcar. According to one witness, plaintiff passed along in front of the streetcar, but 'kind of stopped, * * * and then he walked across, and the minute he got in front of the street car he was out of my vision * * *. It was just a matter of a second when the street car started up with a jerk, it was like a double jerk. * * *' Another witness testified, 'It happened so fast I would say I just saw him momentarily a few seconds before the impact * * *. He had taken a step or two and stopped in the south rail--the east rail of the southbound tracks. * * * in a couple of seconds, it all happened so fast, the street car struck the boy.' The latter witness testified the boy was 'around three or four feet' in front of the streetcar.

Defendant's motorman, operator of the 'new streamliner' streetcar involved, testified that when the children alighted he closed the exit doors, 'looked in front to see if anything was in front,' and slowly started the streetcar. There was an automobile making a left turn (southwestwardly) into North Broadway from Thrush Avenue, and 'as the car was making a left turn I proceeded very slowly until I was sure he was out of my way.' After the automobile was 'straightened out' the motorman started 'to go on' and heard a 'slight bump' from under the center of the streetcar. The motorman further testified that, after the streetcar was stopped south of the intersection, the plaintiff was lying between the northbound and southbound tracks, about 'in the center of Thrush.'

An operator of defendant's 'new streamliner' sits at the left front, but back three feet from the windshield. Upon cross-examination, the defendant's motorman testified that, from his normal seated operating position, he could not see the ground closer than twelve feet in front of the streetcar. In such position, he could not have seen a child of plaintiff's height if the child were standing any closer than 'about seven feet' to the front of the streetcar. The operator had 'never bothered to lean forward to see how near to the front of the car' he could observe objects such as small children, 'or anything that might be crossing the tracks.'

In examining the evidence in an endeavor to determine the question of the submissibility of plaintiff's case and the propriety of giving plaintiff's Instruction No. 1, we see there was substantial evidence introduced tending to show that defendant's motorman had just discharged plaintiff from the streetcar, and plaintiff, having alighted, passed around and stood in front of the streetcar at a point just west of the east rail of the southbound track. Defendant's motorman looked 'in front,' slowly started the streetcar, and then directed his attention to the automobile making a left turn into North Broadway from Thrush Avenue. When the automobile was 'in the clear,' defendant's motorman started on and struck plaintiff. In these respects the instant case is not like the case of Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, cited by defendant-appellant, in which case there was no evidence tending to show that defendant truck driver had notice or knowledge plaintiff's decedent was anywhere in the vicinity; there was a substantial interval of time during which the movements of plaintiff's decedent were wholly unaccounted for; and there was no evidence whatever as to the relative positions and movements of plaintiff's decedent and defendants' truck immediately prior to the casualty.

In our case the inference may be clearly drawn that defendant's motorman, when starting the forward movement of the streetcar, was seated in his normal operating position and made no effort to examine the segment of street lying within 'about seven feet' in front. The inference is justified that the operator started and moved the streetcar 'blindly' into and through the space about seven feet wide in front of the streetcar; he did not take the precaution to lean forward and look down at an acute angle or otherwise place himself in a posture enabling him to examine the seven-foot area in front (within which area, he says, a child such as plaintiff may not be seen by one seated in the operator's normal operating position), although he had just discharged plaintiff and three or four other children at the regular Thrush Avenue stop.

Now there was no evidence tending to show the motorman, seated in his ordinary operating position three feet back of the windshield, could have seen plaintiff if plaintiff was standing three or four feet in front of the streetcar. And there was no evidence introduced tending to show the motorman, had he merely leaned forward, could have observed plaintiff. Yet, although plaintiff was standing not more than three or four feet from the streetcar (and assuming defendant's operator seated in his normal operating position could not see plaintiff), it is quite clear that if the operator, before he started the forward movement, had put himself in a position to see, he, in looking would have seen plaintiff standing there. Had he seen plaintiff, no doubt the motorman would not have then started the forward movement, and plaintiff would not have been injured. So it seems to us our primary question is not one of causation; rather it is one of negligence, more particularly--what precaution in fulfilling a duty to keep a proper lookout ahead should defendant's operator have taken in the circumstances to protect plaintiff from harm?

'Negligence is ordinarily a question for the jury. It is always so when the evidence on material points is conflicting, or where, the facts being undisputed,...