Haddow v. St. Louis Public Service Co.

• Decision Date: 05 May 1931
• Docket Number: No. 21514.,21514.
• Citation: 38 S.W.2d 284
• Parties: HADDOW v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

38 S.W.2d 284

HADDOW v. ST. LOUIS PUBLIC SERVICE CO.

No. 21514.

St. Louis Court of Appeals. Missouri.

May 5, 1931.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Bernice Haddow, an infant, by Lillian Goss, her next friend, against the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. E. Francis, B. G. Carpenter, and Richard S. Bull, all of St. Louis, for appellant.

Fred Berthold, Emery W. Chase, and William P. Carleton, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on September 30, 1928, when she was struck by one of defendant's north-bound Broadway street cars, at or near the intersection of Broadway and Marceau street, in the city of St. Louis. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,500. Judgment was rendered in conformity with the verdict; and, following the overruling of its motion for a new trial, defendant has duly appealed.

Broadway runs generally north and south, and Marceau street, east and west. Broadway has north-bound and south-bound car tracks upon it, with a space from track to curb wide enough for two automobiles to run abreast. Approaching Marceau street from the south on Broadway, there is a 2 per cent. up grade.

The accident happened about 1 o'clock in the morning. Plaintiff and her five companions had attended a social gathering at a home in that vicinity, and at the conclusion of the festivities they had gone to the southeast corner of the intersection for the purpose of taking a north-bound car to their homes. Seeing their car approaching a block away, they left the sidewalk, and walked over near the tracks at the car's usual stopping place; and, when the car was yet a half block away, one of the men in the party signaled for it to stop.

The speed of the street car as it approached Marceau street was estimated at from twelve to eighteen miles an hour. While it was still one hundred fifty feet or more south of the stopping point, a north-bound automobile, running at twice the speed of the street car, was seen to run alongside of, and shortly to pass, it. Though there would have been ample room for the automobile to have gone behind the party of young people, that is, between them and the east curb, for some unknown reason it was caused to swerve in their direction as it neared them, forcing them to step over upon the north-bound car track to escape from its path. The automobile then ran directly over the place in the street where they had been standing, passing within three feet of one of plaintiff's companions.

Under the most favorable view of the evidence from plaintiff's standpoint, the street car was yet sixty or seventy feet away from the group of people at the moment they were forced over upon the track. Though there was no intervening object to have obscured the motorman's vision, the street car continued onward, with no reduction of speed, until some few feet before it reached the point of collision, and then ran into the group upon the track, knocking four of them, including the plaintiff, to the pavement, and inflicting the injuries upon plaintiff for which she has sued.

Other evidence was that the street car stopped about six feet north of the corner; that the street lights were burning; and that the weather was good, and the surface of the street dry. There was expert evidence that at a speed of twelve miles an hour the street car could have been safely stopped in seventeen feet; at fifteen miles an hour, in thirty feet; and at eighteen miles an hour, in thirty-nine feet.

Plaintiff testified that she did not know the identity of the driver of the automobile, and that neither he nor the automobile itself was ever located.

Plaintiff pleaded and relied upon negligence in the breach by defendant of the duties cast upon it by the humanitarian doctrine and the vigilant watch ordinance of the city of St. Louis; while defendant countered with a general denial.

The principal insistence of defendant is that the court erred in overruling its demurrer to all the evidence, and likewise in giving plaintiff's instructions Nos. 1 and 2, which were based, respectively, upon the vigilant watch ordinance and the humanitarian doctrine. In support of the point, we do not have the usual argument that there was no substantial evidence in the whole case to have warranted the submission of those issues. We need only refer to our statement of the facts to show that there was abundant testimony, viewed in the light most favorable to plaintiff, upon which to have predicated both instructions, and consequently to have called for a refusal of the peremptory instruction. Rather, the contention is that, irrespective of what the most favorable view of the entire evidence may have been, plaintiff is nevertheless barred from a recovery by virtue of her own sworn testimony, which had the force of judicial admissions, conceding the facts to have been such as to have disproved the idea of defendant's negligence.

On her direct examination, plaintiff testified to a state of facts which amply warranted the submission of her case to the jury, but on cross-examination she was induced to say that the street car was only sixty or seventy feet away when the automobile passed it; that the course of the automobile was thereafter changed in her direction; that it was within three feet of her when she stepped over upon the track; and that, as it passed her, the street car, coming at a speed of fifteen or eighteen miles an hour, was only fifteen or twenty feet away.

Assuming such state of facts to have existed, and bearing in mind the evidence that the automobile was running at twice the speed of the street car, and that at a speed of even fifteen miles an hour a space of thirty feet would have been required in which to have stopped the car, defendant argues that no case was made for the jury to determine. We are not prepared to say that this conclusion is sound, for, if the testimony of defendant's motorman should be considered along with plaintiff's statements on cross-examination, we would very likely be forced to hold that there was nevertheless a prima facie case for the jury, at least for negligence under the humanitarian doctrine. But we shall consider the point in the light of defendant's argument, which is, as has been heretofore suggested, that upon plaintiff's cross-examination, standing alone, she negatived a case of negligence, and that her binding admissions cannot be aided, or their effect overcome, by other evidence, whether from her own direct examination, or from the mouths of other witnesses.

Defendant relies chiefly upon the case of Steele v. Kansas City S. Ry. Co., 265 Mo. 97, 175 S. W. 177, wherein the plaintiff, during the trial of the case, first swore to a state of facts which put him out of court, and then, after he had been finally excused from the stand, after a night had intervened, and after he had meanwhile visited the scene of the accident, on the next day again took the stand, and, without averring mistake or misunderstanding, diametrically changed and altered his testimony so that a prima facie case was made for the jury, where there had been none before. Under such circumstances, the Supreme...