Hamell v. St. Louis Public Service Co.

• Decision Date: 18 May 1954
• Docket Number: No. 28854,28854
• Citation: 268 S.W.2d 60
• Parties: HAMELL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 60

268 S.W.2d 60

HAMELL v. ST. LOUIS PUBLIC SERVICE CO.

No. 28854.

St. Louis Court of Appeals, Missouri.

May 18, 1954.

Abraham Altman, William R. Kirby, St. Louis, for appellant.

Lloyd E. Boas, Robert E. Staed, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action brought by Robert Hamell against St. Louis Public Service Company on account of personal injuries sustained in a collision between an automobile in which he was riding as a passenger and a bus owned and operated by defendant. From the judgment entered upon a jury verdict for defendant, plaintiff has appealed to this court.

The collision occurred at the intersection of Locust Street and Leffingwell Avenue in the City of St. Louis. Locust runs east and west and is 40-45 feet wide. Leffingwell runs north and south and is about 35 feet wide. All four corners are occupied by buildings which are built up to the sidewalk line. There is a stop sign located on the northwest corner of the intersection for the control of southbound traffic but none on the northeast corner for the control of westbound traffic. It is slightly upgrade both for westbound and southbound traffic approaching the intersection.

On March 18, 1950 at about 7:30 or 8:00 p. m. a southbound automobile in which plaintiff was a passenger was struck by a westbound bus. Plaintiff's petition charged both primary and humanitarian negligence but the cause was submitted to the jury solely on the theory of humanitarian negligence in failing to sound a warning of the approach of the bus and in failing to slacken the speed thereof.

Appellant assigns error in the giving of Instructions Nos. 7 and 8. Respondent contends that the instructions were properly given but that in any event, regardless of error, plaintiff was not prejudiced and the judgment for defendant should not be reversed for the reason that plaintiff failed to make a submissible case. Our first inquiry therefore is whether plaintiff made a submissible case. It not, other errors assigned would be immaterial, Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892, and the judgment for defendant should be affirmed.

According to plaintiff and plaintiff's driver they were following another automobile as they proceeded south on Leffingwell. At the intersection they made two stops, the first time when the car in front of them stopped; the second time at a point 3 or 4 feet north of the north curb line of Locust, after the preceding automobile had continued on across Locust. Plaintiff's driver Nathaniel Owne looked both ways, west and east, saw an automobile and the bus coming from the east, 'down middleways of the block.' Owen's car was then about one foot to the right of the center line of Leffingwell, and about 2 feet south of the stop sign. He could see 'a good piece' east on Locust, 'as much as a block.' He did not know the distance between the westbound bus and the westbound automobile. He did not know--had 'no idea'--how fast the bus was traveling. He looked west first and then looked east. He was stopped only a matter of seconds, 'trying to give that car time to pass.' Plaintiff testified that they stopped 'just long enough for a man to stop and change the gears of his automobile.' According to Owen, when the westbound automobile crossed the intersection he 'took off and started across * * * started off in low gear.' He testified: 'After that car passed I figured I had time to cross ahead of the bus and I went out.' He traveled southward 'straight across Locust, * * * moving forward all the time.' In making the crossing he looked straight ahead, neither to his right nor left, and did not at any time thereafter see the bus until after the collision, which occurred at the time he was sitting over the center white line of Locust, the front end of his vehicle then south of the center line. When plaintiff first saw the bus the front end of the automobile was almost to the center line of Locust. The automobile was then traveling 5-10 miles per hour. Owen fixed his speed at 5-10 miles per hour at the time of the collision. Plaintiff 'kind of glimpsed around and saw' the bus 'and it hit all at one time * * *.' The accident 'happened so quick I just glimpsed it; before I could look around it hit us.' Although he did not know exactly how far away the bus was when he first saw it he would say 40 feet. At another point in his testimony he thought the bus was 40 feet east of the intersection when he saw it--40 feet east of the east curb of Leffingwell. He had no idea how fast the bus was traveling. It was moving fast but he could not tell how fast. Plaintiff continued to watch the bus from the time he saw it until the collision occurred. At the time of impact the automobile was about half way across the center line of Locust, still in low gear. A second passenger in the automobile testified that the speed of the automobile was from 8-10 miles per hour at the time of the collision and that the brakes on the automobile were never applied before the collision. The bus was on the right side of Locust somewhere between the center line and the north curb. The front of the bus hit the left side of the automobile at the left back door. A photograph shows damage from that point forward to and including the rear portion of the front left fender. Prior to the impact no warning was given by the bus that it was not yielding the right of way to the automobile.

For defendant the bus driver and two bus passengers testified. According to them the southbound automobile came through the stop sign without stopping, at a speed variously estimated at from 25-40 miles per hour. As he approached the intersection the bus driver, Louis Pugh, looked to his left and right. When he first saw the automobile it was almost even with the stop sign, about 6 feet north of the north curb of Locust and at that time the bus was almost even with--about 5 or 10 feet east of--the east curb line of Leffingwell. The bus was then going about 10-15 miles per hour, traveling possibly 2 feet to the right of the center line of Locust. When the bus was even with the east curb of Leffingwell Pugh made an emergency application of the brakes. From the time he saw the automobile the bus traveled 22 or 22 1/2 feet to the point of collision without decreasing its speed, and the automobile traveled 28-30 1/2 feet to the point of collision. The automobile did not slow down in any fashion and the front end of the bus struck the left center section of the automobile. When the collision occurred the bus was over the center line of Leffingwell not more than a foot, and the front of the automobile was over the center line of Locust a foot or two, at the very most. Traveling at 15 miles per hour the bus could be stopped in 40 feet. At 10 miles per hour it could be stopped in 30 feet. Passenger Mr. Lord was aware of the slamming on of the brakes. There was definitely an application of the brakes, which occurred slightly after his wife threw up her hands. From the time his wife threw up her hands until the collision occurred it was at least a second. Passenger Mrs. Lord testified that, seated on the front right-hand forward seat in the bus, she first saw the automobile approximately 30 or 35 feet north of the intersection. She had the impression that it was not going to stop. She could tell it was not going to stop. When she first observed the automobile the front of the bus was approximately at the building line on the east side of Leffingwell. The brakes were applied on the bus about the time she saw the automobile or immediately thereafter--a hard application of the brakes--and at the time of the actual impact the bus was traveling no more than 5 miles per hour.

The fundamental theory of plaintiff's case is that the automobile stopped for the stop sign before proceeding into the intersection and thereafter moved slowly from a point approximately 3 or 4 feet north of the north curb line of Locust into the intersection and forward in a straight line to a point a few feet south of the center line of locust, at which place the right-angle collision occurred. It is elementary that no duty whatever was imposed upon defendant under the humanitarian doctrine until a situation of imminent peril arose. The immediate question is whether there is sufficient evidence in this record available to plaintiff to show the time at which the situation of imminent peril arose and that thereafter defendant could have averted the collision by slackening the speed of the bus or issuing a warning of its approach. The extent or width of the zone of peril depends upon whether the driver of the automobile was oblivious of the danger of a collision with the approaching bus. If he was fully aware of the approach of the bus, its speed and the danger of collision the zone of imminent peril would be very narrow and would not come into existence until the automobile was actually in the path of the bus or so close thereto that the driver of the automobile could not stop short of its path. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, and cases cited. On the other hand, if he was oblivious to the danger of a collision, the zone of peril would be widened considerably beyond the immediate path of the moving vehicle, and would commence when the driver of the bus saw, or by the exercise of the highest degree of care could have seen, that the driver of the automobile approaching the path of the bus was oblivious of the danger and intent on continuing across his path. Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540. Owen, having seen the bus when it was middleway of the block east of the intersection, had a general awareness of the approach of the bus but under the record facts the jury could find that he was not aware of the danger from the approach of the oncoming bus. Brungs v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 81. He did not continuously watch the bus as it...