Frandeka v. St. Louis Public Service Co.
| Decision Date | 13 November 1950 |
| Docket Number | No. 41612,No. 1,41612,1 |
| Parties | FRANDEKA v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.
Everett Hullverson, Carmen Speiser, St. Louis, for respondent. Orville Richardson, St. Louis, of counsel.
Action for damages for personal injuries sustained in a collision between defendant's bus and an automobile driven by plaintiff. Verdict was for plaintiff for $82,000. The trial court ordered a remittitur of $30,000 and final judgment was entered for plaintiff for $52,000, from which defendant appeals.
Defendant contends that its motion for a directed verdict should have been sustained. This involves two questions: (1) whether plaintiff was guilty of contributory negligence as a matter of law; and (2) whether plaintiff made a jury case on humanitarian negligence. The trial court decided that a humanitarian case was not made and refused to submit instructions authorizing a verdict on that theory. The case was submitted on primary negligence of the bus driver in failing to hear the siren of the automobile driven by plaintiff and to see its approach in time to stop the bus, slacken its speed or turn it aside. An opinion has been written herein by Commissioner Aschemeyer, which we adopt in substance as Part I hereof for our statement of facts ( facts most favorable to plaintiff) and our ruling on the question of contributory negligence as a matter of law, as follows:
I--Contributory Negligence.
Some of the facts are not in dispute. The accident occurred on Sunday morning, October 19, 1947, between 11:00 and 11:30. Twelfth Street runs north and south, is 110 feet wide and has two sets of streetcar tracks running down its approximate center. It is 15 feet from the east rail of the northbound tracks to the west rail of the southbound tracks. Market Street runs east and west, is 76 feet wide and intersects Twelfth Street at right angles. It is 270 feet from the south curb of Market Street to the north curb of Walnut Street (one block south); Walnut Street is 36 feet wide so that it is 306 feet from the south curb of Walnut Street to the south curb of Market Street. Traffic at the intersection of Twelfth and Market Streets is controlled by electric traffic signals, a left turn being permitted upon a white arrow. Buses of defendant's Lindenwood line operate westwardly on Market Street and cross Twelfth Street when the traffic lights are green for east and west traffic. There are three traffic lanes on the north side of Market Street. The lane nearest the middle of Market Street is for traffic approaching Twelfth Street from the east and intending to make a left turn to proceed southwardly on Twelfth Street. Buses of defendant's Gravois line use this left-turn lane and, upon the appropriate signal, turn left to go south on Twelfth Street. At the time of the accident, traffic was light at and near the intersection. The streets were dry and it was a clear, bright day.
Plaintiff's evidence was as follows: He was a member of the fire department of St. Louis, assigned to Engine House No. 2 near Twelfth and Clark Streets, which was under the command of Battalion Chief Johnson. He was a fire-fighter and a substitute driver of the Chief's car. On the morning of the accident, the regular driver of this car had been scalded in an accident at the Engine House and plaintiff drove the injured man and the Chief to the City Hospital. He waited outside the hospital while the Chief took the injured man in. The car, a red 1947 Ford, was equipped with a siren and a police radio. After the Chief left the hospital and as he was getting in the car, an alarm came over the radio approximately as follows: 'an alarm sounding at 1005 Olive Street.' This was in their district. Plaintiff said to the Chief: 'Isn't that us?' and he replied: 'yes, let's go.' Plaintiff was operating the car under orders of the Battalion Chief.
As soon as they got away from the hospital, plaintiff turned on the siren and it was blowing continuously up to the time of the accident. They drove east to Twelfth Street and then north, going from 50 to 55 miles per hour. He drove in the middle of the street, between the two sets of streetcar tracks, because it is easier to see both sides of the street and to turn either way in case of trouble. When he was about one-half block south of Market Street, he noticed all traffic was stopped. There was a clear field and he kept going. When he was about 20 feet south of Market Street, a bus 'zoomed' up in front of him. He did not know where it came from. He applied his brakes and tried to swerve but the bus blocked his way and he could not avoid hitting it. Plaintiff sustained serious and permanent injuries and Battalion Chief Johnson was killed.
On cross-examination plaintiff stated: Battalion Chief Johnson did not tell him how to drive the car. He was driving 50 to 55 miles per hour and kept traveling at the same rate. He did not look at the traffic lights at Twelfth and Market and did not know whether they were red or green. He did not see the bus until it was in front of him and until it was in the streetcar tracks. He had no idea how fast the bus was going. From Walnut Street (one block south) he could see the whole intersection of Twelfth and Market Streets. He was 20 feet south of the south curb of Market Street when he first saw the bus and from this point he could see north to Olive Street (a distance of three blocks.) When he was a block south of Market Street, he looked and the intersection was clear. As he approached the intersection he kept watching but did not see the bus until its front was across the streetcar tracks and directly in front of him. The bus was going west.
He knew of no reason why he had not seen the bus during the time it traveled from the east curb of Twelfth Street to the middle of that street (a distance of 55 feet). Nothing obstructed his view and he knew no reason why he did not see the bus sooner. The bus was on the north side of Market Street and 70 to 80 feet north of him when he first saw it. Going at 50 to 55 miles per hour he could have stopped his car in 140 to 160 feet. He could have reduced his speed from 55 to 30 miles per hour in about 75 feet and could have made a right turn, east on Market Street, at 30 miles per hour. Plaintiff stated that he was operating at a speed consistent with safety and that he had his car under control.
Other witnesses for plaintiff stated that his car came north in the center of Twelfth Street going at the speed of 50 to 55 miles per hour; that it did not slow down until the brakes were applied when it was 20 feet to 24 feet south of the south curb of Market Street; that the siren was sounded continuously (one witness who was walking on the east side of Twelfth Street just north of Market Street heard the siren and saw plaintiff's car when it was about 1 1/4 blocks south of him); that a Gravois bus was stopped in the left-turn lane of Market Street east of Twelfth Street; that the Lindenwood bus involved in the accident was going west on Market Street, its right side being about 5 feet south of the north curb of Market Street; that the traffic light turned green as the bus approached Twelfth Street from the east and that it proceeded across Twelfth Street without stopping, passing the stopped Gravois bus to the north; that there was no other moving traffic; that its speed, being variously estimated, was 5 1/2, 8, 10, 12, to 15, or 15 to 20 miles per hour; that the bus proceeded across Twelfth Street in a straight line and at a uniform speed (one witness, a passenger on the bus, stated he heard the siren as the bus entered the intersection and that the bus driver seemed to take his foot off the accelerator and then immediately accelerated again); that the front of the bus had reached the center of Twelfth Street when plaintiff applied his brakes; that plaintiff's car swerved to the left and struck the center portion of the bus when the bus was straddling the streetcar tracks; that the bus continued west and did not stop until it was some distance west of Twelfth Street; and that plaintiff's car was facing south in the southbound streetcar tracks, in a badly damaged condition, after the impact.
Plaintiff offered in evidence an ordinance of the City of St. Louis which provided that emergency vehicles, while on emergency service, and while sounding their sirens continuously had the right of way over other vehicles which were required to pull as closely as possible to the right-hand curb and stop, and which also provided that such emergency vehicles were not required to observe stop signs or electric traffic signals.
A number of passengers on the bus testified for defendant. None of them heard the siren or saw the fire car until just before the collision. As the bus approached Twelfth Street it proceeded into the intersection without stopping. Some of the witnesses noticed the traffic lights and stated they were green for westbound traffic. Some noticed the Gravois bus stopped in the left-turn lane, while others did not. The bus was in the center of Twelfth Street when it was hit. Plaintiff's car hit the center of the left side of the bus which was about 32 1/2 feet long and 8 feet wide. (Pictures in evidence show the damage to the bus near the emergency rear door which was bent.) The impact knocked some passengers from their seats and a number of passengers were injured. The bus continued west after the accident and stopped 30 to 40 feet west of the west curb of Twelfth Street.
The bus driver stated: The traffic light was green as he approached Twelfth Street. He was in the first lane from the north curb and 6 or 8 feet south of that curb. As he approached Twelfth Street, he had been slowing...
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