Hanff v. St. Louis Public Service Co., 48417
| Decision Date | 09 April 1962 |
| Docket Number | No. 2,No. 48417,48417,2 |
| Citation | 355 S.W.2d 922 |
| Parties | Arthur R. HANFF, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, John W. Fletcher, McNamara Motor Express, Inc., a Corporation, and Vincent Palazzolo, Respondents |
| Court | Missouri Supreme Court |
John L. Rooney, Rooney, Webbe & Davidson, St. Louis, William L. Mason, Jr., St. Louis, for appellant.
Donald L. Schmidt, St. Louis, for respondents St. Louis Public Service Co. and John W. Fletcher.
C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondents McNamara Motor Express, Inc. and Vincent Palazzolo.
BOHLING, Commissioner.
Arthur Hanff sued the St. Louis Public Service Company, a corporation sometimes designated as Service Company, and John W. Fletcher, and McNamara Motor Express, Inc., a corporation sometimes designated as Express Company, and Vincent Palazzolo for $40,000 damages for personal injuries sustained while a passenger on one of Service Company's streetcars operated by defendant Fletcher in a collision with the trailer of a tractor-trailer unit of the Express Company operated on a mission for it by defendant Palazzolo. The court sustained the motion of defendants Express Company and Palazzolo for a directed verdict at the close of plaintiff's case. Plaintiff submitted his case against defendants Service Company and Fletcher under the res ipsa loquitur theory. There was a verdict and judgment for said defendants. Plaintiff on this appeal contends the court erred in sustaining said motion for a directed verdict and in giving instructions on behalf of defendants Service Company and Fletcher.
The collision occurred on Olive, some distance west of its intersection with Leffingwell, streets in the City of St. Louis, about 9:30 a. m., September 21, 1959, 'a real nice day,' as the streetcar was passing the tractor-trailer unit. Plaintiff contends a case was made against the Express Company and Palazzolo on the theory Palazzolo swerved the tractor to the right and caused the left rear end of the trailer to move to the left and collide with the streetcar where its widest point began back of the front end as it was passing the trailer.
Plaintiff called defendants Palazzolo and Fletcher and Officer Samuel Loduca as his witnesses.
Olive Street has three landes for traffic each way; a curb lane, a middle lane, and the streetcar tracks. From about 170 feet west of Leffingwell there is a slight downgrade to Leffingwell. A safety zone, estimated by defendant Fletcher to extend about 100 feet west of Leffingwell, is at the center of the street, marked by painted lines and by buttons.
Palazzolo, John Carter also in the cab, was southbound on Ewing, a 'two-way' street a block west of Leffingwell, and saw the streetcar about two blocks to the west while stopped at Olive Street. He turned left to go east on Olive.
The streetcar was 44 of 46 feet long. Its windshield was approximately 6 feet wide, and the car tapered outwardly to a width of 9 feet at the rear of the front door, 6 or 7 feet behind the front end. Its overhang was estimated at 24 inches.
The trailer was estimated to be 40 feet long, 6 or 8 feet wide, and the overall length of the unit to be 50 feet. The outsides of the tires are even with the sides of the trailer. The tractor extends underneath the trailer.
Palazzolo proceeded eastwardly in the middle lane in low gear, pulling a 20,000 pound load, and parallel with and about 11 inches south of the track. He did not remember getting onto the track, but if he did he gradually got back to the south. The tractor cab seat is high. He could see, over the cars ahead, the electric traffic signal to his right change to red and stopped back of some automobiles, a short distance west of the safety zone, with the rear end of the trailer closer to the track than its front end.
Defendant Fletcher testified the tractortrailer's speed was 3 or 4 miles an hour and the streetcar's was 6 or 7 m. p. h., and that when the streetcar was 10 or 15 feet behind the trailer the two vehicles were still moving at the same speeds, with the tractor-trailer parallel with the track. Fletcher estimated the streetcar had 3 or 4 inches to clear the tractor-trailer. He 'accelerated' the speed of the streetchar a little and started to pass the tractor-trailer unit.
The left rear end of the trailer and widest part of the streetcar collided as the streetcar was passing the trailer. The damage to the streetcar commenced where its widest point began, a glancing blow on the rear of the front door jam, extending back and becoming deeper for about 5 feet or so.
Fletcher testified that after the collision the streetcar traveled 14 or 15 feet, and stopped with its front end 12 or 14 feet past the rear of the trailer; that the tractor-trailer traveled 4 or 5 feet; that the front of the tractor was then about 20 feet west and the front of the streetcar was about 57 feet west of the safety zone; and that the left rear end of the trailer was about 2 or 3 inches south of the streetcar. He estimated that the left front corner of the trailer was about 4 feet south and the left front of the tractor was about 7 or 8 feet south of the track.
There was no probative evidence that Fletcher sounded the bell or warned of the streetcar's approach.
Defendant Fletcher testified on direct examination: 'The front end of the streetcar got past and then I heard a noise, and I looked and the tractor had pulled to the right.' He then testified in answer to a double question whether the tractor had turned to the right, south, and then part of the streetcar door and the left rear of the trailer collided: 'That's correct.' On cross-examination by his counsel he testified that the tractor-trailer pulled to the right after he started to pass and 'in just a few seconds' the collision occurred. He testified the truck was not moved toward the track.
Palazzolo testified he did not turn his unit in any direction; that he had been at a dead stop from the time the traffic light changed from amber to red until it was changing to green just about when the collision occurred.
Plaintiff had the burden of establishing that Palazzolo was negligent is swerving the tractor to the right or sough and that such negligence proximately contributed to the collision and plaintiff's injuries. Ledkins v. Missouri-Kansas-Texas Rd. Co., Mo., 316 S.W.2d 564, 568.
Plaintiff cites two cases, Burnett v. St. Louis Pub, Serv. Co., Mo., 337 S.W.2d 921, 923, and Highfill v. Brown, Mo., 320 S.W.2d 493, 495. The Burnett case is cited on the theory that plaintiff 'can call the drivers of both vehicles in his case, and thereby make a case against either or both, though their evidence conflict, so long as he seeks to go on no theory developed from such evidence which conflicts with his own personal testimony and fundamental theory.' Defendant does not question this. The Highfill case is cited on the theory that 'if the driver of a vehicle causes it to move to the left just as another vehicle is passing him on the left, there is a jury question of his negligence.' That case went to trial upon plaintiff's claim and defendant's counterclaim, and involved a left turn across the highway by defendant's car, the first in a line of three, and a collision with plaintiff's car while in the act of passing said line of cars. These cases do not establish negligence on the part of Palazzolo under the facts disclosed by this record.
Plaintiff, on direct examination, testified he did not know what caused the collision. But, on cross-examination by counsel for these defendants, he testified:
We think under the record before us that the evidence with respect to the tractor moving to the right or south did not remove from speculation and conjecture that such movement caused the left rear end of the trailer to swerve and resulted in the widest part of the streetcar striking the left rear end of the trailer. The distance the tractor traveled and the angle with the trailer in which it moved would have a bearing and effect on whether the left rear end of the trailer would move north beyond the line of travel of the tractor-trailer unit. Plaintiff did not establish by substantial testimony what effect the swerving of the tractor to the south had upon the left rear end of the trailer. The noise directed Fletcher's attention to the situation. He did not see the trailer move to the north.
Plaintiff states Officer Loduca's measurements showed that after the collision the front of the tractor-trailer was 5 1/2 feet north of the south curb of Olive and the rear 8 feet north of said curb. The officer so stated; but when he was questioned about his diagram he testified that the measurement showed the right front corner of the tractor-trailer was 15 feet 5 inches north of the south curb of Olive. His testimony shows that after the collision the tractortrailer was approximately parallel with the track, and was off in its 50 feet of length only 2 1/2 feet from being parallel with the track. This does not make plaintiff's case. There was traffic in the curb lane at the time of collision.
At one place Fletcher testified this 3 or 4 inch clearance was between the front of the streetcar and the rear of the trailer; and one would not have that clearance at the rear of the streetcar's front door: He stated later he misunderstood these inquiries of counsel.
Plaintiff in his brief argues that it is a commonly known fact and judicial notice should be taken that when...
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