Gurley v. St. Louis Public Service Co.

• Decision Date: 09 March 1953
• Docket Number: No. 43050,No. 2,43050,2
• Citation: 256 S.W.2d 755
• Parties: GURLEY v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 755

256 S.W.2d 755

GURLEY v. ST. LOUIS PUBLIC SERVICE CO.

No. 43050.

Supreme Court of Missouri, Division No. 2.

March 9, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 13, 1953.

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

Albert E. Schoenbeck, St. Louis, for respondent.

WESTHUES, Commissioner.

This is an action for damages for personal injuries. Plaintiff Kenneth Gurley on the night of November 10, 1950, fell as he was stepping off a bus owned by the defendant St. Louis Public Service Company. He was not injured as a result of this fall but when the bus moved forward, the right rear dual wheels passed over the lower part of plaintiff's left leg. A trial resulted in a verdict for plaintiff in the sum of $29,500. From the judgment entered, the defendant appealed.

Defendant filed a motion in this court to remand the case for retrial. It was alleged in the motion that the defendant discovered new after trial evidence to the effect that plaintiff's injuries were not so serious as plaintiff's evidence tended to prove. In the motion defendant asked that if we overruled the motion to remand, this court consider the newly discovered evidence on the question of the measure of damages. We shall dispose of the motion in the latter part of this opinion.

Defendant in its brief attempted to present three points for review. They are as follows:

'I. The Court erred in overruling defendant's motion for a directed verdict at the close of the whole case and erred in overruling defendant's motion for judgment in accordance with its motion for a directed verdict.

'II. The Court erred in giving and reading instruction number one.

'III. The verdict is grossly excessive.'

Rule 1.08 of this court provides in part as follows: 'The brief for appellant shall contain: * * * (3) The points relied on, which shall specify the allegations of error, with citation of authorities thereunder; * * *.' (Emphasis ours.) In point one, as above-quoted, no reason is assigned that the court erred in not directing a verdict for the defendant. The same is true as to point number two. Defendant failed to specify any allegation of error. In carefully reading the argument in defendant's brief, we have concluded that the first point relied upon is that plaintiff's evidence was insufficient to make a case under the humanitarian doctrine. We would be justified in wholly ignoring the first two points in the brief.

While we have concluded that the defendant is correct in his argument that plaintiff failed to make a case under the humanitarian doctrine, McClanahan v. St. Louis Public Service Co., 363 Mo. ----, 251 S.W.2d 704, loc.cit. 707(2), nevertheless, the evidence was sufficient for a jury to find primary negligence which we believe was submitted to the jury by the instruction under attack.

The evidence shows the following to have occurred: On the night of November 10, 1950, plaintiff was a passenger on a bus owned by the defendant company. The bus was westbound on Pershing Avenue. When it neared Clara Avenue, plaintiff signaled the operator to stop. When the bus came to a stop, the rear door was opened and plaintiff started down the steps. His foot slipped and plaintiff fell, landing in between the bus and the curbing. The motorman testified that he released the brakes of the bus and was in the act of starting the bus when he heard some people call to him to stop; that he immediately stopped the bus. Plaintiff testified that he fell in between the bus and the curbing and that when he noticed the bus moving, he attempted to jerk his legs from under the bus wheels but the right rear wheels caught his left trouser leg; that the bus stopped momentarily and then moved forward, the wheels passing over his leg. The bus driver Sanders gave the following testimony:

'Q. When you moved forward approximately how far forward did you move? A. The first time?

'Q. Yes, the first time. A. I would say two to three feet.'

The bus driver testified that when he stopped after moving a few feet, he heard some people 'hollering.' Note his testimony concerning this point:

'Q. What did you hear the people say? A. It sounded like a lady's voice--That I was on this man.

'Q. Do you remember their exact words? A. No, I don't remember the exact words, no sir.

'Q. Did you look back into your rear mirrors? A. I don't remember I did at that time.

'Q. Did you open the rear door of the bus? A. I opened the front one.

'Q. Now, did you open the rear door of the bus? A. No.

'Q. Now, isn't it a fact that you heard the people say to reverse the bus? A. I am not sure what they said. The way I understand it, the way I heard them was that I was on this man.

'Q. I am asking you: Didn't you hear them say to reverse the bus? A. They might have said that. I couldn't say for sure.'

Sanders admitted that in a deposition he testified as follows. "(Answer): Well, when I stopped the bus the first time after pulling away from Clara, these women hollered and said I was on him, to reverse my bus, I could understand that they said reverse it, and to reverse it I thought it would be more wise to move forward.

"(Question): They told you to reverse the bus?

"(Answer): That is right.

"(Question): But you instead of reversing the bus you pulled forward?

"(Answer): That is right.'

'Q. Were those questions asked you and those answers made? A. They must have been.'

Plaintiff was the only passenger on the bus. It was after 11:00 p. m. There were four or five people near the bus stop and the substance of the evidence as to what occurred may be shown by quoting from two of the witnesses. Mrs. Aileen Frain testified as follows:

'Q. You say you ran to the front of the bus. Was the front door of the bus open? A. No, the driver opened the door when we screamed.

'Q. He opened the door of the bus? A. Yes.

'Q. When you say you screamed to him, to the bus driver you mean? A. Yes.

'Q. Then what happened? A. Then we asked him to back up, to try to get this man's trouser or whatever was caught under the bus loose, and instead of that he just closed the door and went on, and went over the man's leg.'

William Frain gave the following testimony:

'Q. Let me ask you this: Was the wheel up on to his leg? A. The wheel seemed to be in a position back of his leg and just over it.

'Q. Do you mean against the leg? A. Yes, sir. And as I tried to get him under the arm pits and pull him free of the bus, suddenly the thought struck me I could not move the man so I ran up to the side there and hollered, 'Don't move this bus.'

'Q. Then what happened? A. Then I went back thinking I would have time to get the man loose. Just as I got him under the arm pits again, the bus went forward and I heard bones breaking.'

The evidence was that plaintiff was not hurt until the bus wheels passed over his leg. We are of the opinion that the evidence justified a finding by a jury that the bus driver was negligent in not ascertaining for himself, before moving the busforward, the position of plaintiff with reference to the bus. We can visualize the excitement at the time which may have confused the bus driver. Note Mr. Frain's description of the situation:

'Q. Now, can you tell me how come the bus and how long the bus moved from the time Kenneth Gurley got off it and you told the bus driver to hold still. A. Well, I would say probably because there were five other people in the crowd who were stamping around in front of the bus all screaming various admonitions to the driver not to pull forward.

'Q. Were they all saying that or were they saying 'You are on a man'? A. It would be impossible to say what they were saying.'

We rule the question of whether the bus driver was negligent was for a jury to decide. Sullivan v. Kansas City Public Service Co., 363 Mo. 68, 248 S.W.2d 605, loc.cit. 609, 610(3); Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233, loc.cit. 238(9)(10).

In the argument of the brief the defendant says that the court by instruction No. 1 submitted the case to the jury on humanitarian negligence. If that were true, the case would have to be remanded for retrial. The Sullivan and Smith cases, supra, so hold. We find that instruction No. 1 submitted primary negligence only. While it contains some phraseology usually found in instructions submitting humanitarian negligence, it could not be approved as such. In the first part of this instruction, the occurrences leading up to the time plaintiff's trouser leg was pinned under the bus wheels were stated, thus presenting to the jury, if they found the facts to be so, that plaintiff was in a precarious position. The instruction then submitted to the jury the question of whether the bus driver should have known plaintiff's position of peril but nevertheless negligently moved the bus forward. A similar situation was presented to this court in the Smith case, supra. At page 238 of 209 S.W.2d (9), the court made the following comment: 'It was not a failure to stop that caused this accident. The accident resulted from moving on under the existing circumstances, after the truck had been stopped.' The court held that primary negligence and not humanitarian negligence was the proper basis upon which to have submitted the case to a jury. That rule applies in this case. Instruction No. 1 correctly submitted primary negligence, that is, whether the bus driver was negligent in moving the bus forward under the circumstances then existing.

Defendant contends the verdict of $29,500 is grossly excessive. The newly discovered evidence mentioned in the motion to remand is with reference to plaintiff's injuries. Plaintiff testified he was unable to walk without the aid of crutches. The trial ended on October 18, 1951. A motion for new trial filed on October 22, 1951, was overruled on December 31, 1951. On January 4, 1952, defendant filed his notice of appeal. On January 14, 1952, defendant filed its motion in the trial court asking...