Hayes v. Coca-Cola Bottling Co. of St. Louis

• Decision Date: 14 June 1954
• Docket Number: No. 43861,COCA-COLA,No. 1,43861,1
• Parties: HAYES v.BOTTLING CO. OF ST. LOUIS et al
• Court: Missouri Supreme Court

Page 639

269 S.W.2d 639

HAYES v. COCA-COLA BOTTLING CO. OF ST. LOUIS et al.

No. 43861.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 12, 1954.

Walther, Hecker, Walther & Barnard, Harold F. Hecker, George W. Cloyd, St. Louis, for appellants.

Dan P. Reardon, Joseph G. Stewart, St. Louis, for respondent.

HYDE, Presiding Judge.

Action for damages for personal injuries, sustained in a collision between a streetcar and a truck. Plaintiff had verdict and judgment for $12,000 and defendant appealed. The case was submitted on humanitarian negligence only (failure to stop or swerve); and the principal question to be decided is whether plaintiff made a jury case on such negligence. We, therefore, consider the evidence from the view most favorable to plaintiff's contentions, hereinafter referring to the corporate defendant as defendant.

Plaintiff was operating the streetcar east on Wise Avenue in Richmond Heights about 8:00 A. M. on the day of the casualty. Plaintiff ahd stopped for passengers at Bellevue Avenue (a north and south street) about 600 feet west of the place of collision and was coasting downgrade east toward Yale Avenue, without using any power. He estimated his speed at from 12 to 14 miles per hour. Passengers, who were plaintiff's witnesses, estimated it at 10 miles per hour. Yale Avenue led south from Wise Avenue but did not continue on the other side of Wise Avenue to the north. Instead at the west side of Yale Avenue the streetcar tracks made a full 90-degree turn to the north onto a private right-of-way of the streetcar company. Wise Avenue was 40 feet wide west of Yale Avenue but was only 30 feet wide east of it. From the beginning of the curve of the streetcar tracks in Wise Avenue to the north curb of Wise Avenue (where the tracks entered the private right-of-way) was 45 feet.

Plaintiff said that, when he was about 20 feet from the beginning of the curve, he saw defendant's truck about 160 feet east of the track. He said he was applying the brakes and reduced his speed to about 6 miles per hour entering the curve and that, when the front of the car reached the middle of the street, the speed was 3 to 4 miles per hour. The passengers, who testified as plaintiff's witnesses, did not notice any reduction in speed from their estimates of 10 miles per hour. At this point (with the front of the car in the middle of the street) plaintiff said he saw the truck about 60 feet east of the tracks, near the center of Wise Avenue but on the right (north) side of the street. Plaintiff said he thereafter watched the truck, 'seen he was making no effort to stop', so 'reversed the car, plugged it' to make an emergency stop. He said the truck 'swerved toward-into the right of way to make a dip around, and when he got into the gap in front of me he swung back and pushed the front end of the car in.' Plaintiff said the car was stopped when the truck collided with it, but also said: 'It took place just about the same time; it was less than a second, anyhow; it was around a second when the collision occurred.' The passengers who testified for plaintiff did not know whether the car had stopped when the collision occurred. Plaintiff said he was unable to estimate the speed of the truck but gave as his best judgment 25 to 30 miles per hour. He said that, at 3 miles per hour, he could stop the streetcar in about 9 feet. He said he was sounding the gong as the car came around the curve and sounded it several times. There were no skid marks made by defendant's truck and no marks indicating that it had been pushed to the north. In parts of his deposition, offered by plaintiff, defendant's driver said he was going 20 miles per hour and could stop in 30 feet. The streetcar was 50 feet long. Photographs in evidence (taken before the truck was moved) show that it was still on the turn (had not got completely on to the straight track) at the place of the collision, the car standing northeast to southwest on the curve. Each party introduced in evidence plats drawn to scale which were conceded to be correct.

Defendant's driver as a witness for defendant said, as he drove west on Wise Avenue, he first saw the streetcar at the top of the hill near Bellevue Avenue. He said he was going 15 miles per hour (traveling upgrade) and got up to 20 'not any more than that', driving 'close to the curb there, a couple of feet from it'; that when he got to the utility poles, east of the turn in the tracks, (he said this was 18 feet east) he 'suddenly realized' the streetcar was going to make the turn without slackening speed so he put on his brakes as hard as he could; and that he realized he couldn't stop in time so he turned his wheels to the right, started to pull into the right-of-way north of Wise Avenue and was hit when he got about on the track. He thought the streetcar was going 20 miles per hour or more and said it did not slow down at all for the turn. Defendant had corroborating witnesses as to the speed of the truck and the streetcar. Defendant knew that streetcars made a left turn at that place. He said the truck was barely moving at the time of the impact, 'maybe two or three miles an hour' and that the streetcar was then going about 20 miles per hour. He thought he swerved five or six feet to the north. He said he could have stopped the truck in about 45 feet, including reaction time, which he said he did not take into consideration when he stated in his deposition that he could stop in 30 feet.

Defendant contends that, since there was no obliviousness in this case, the zone of imminent peril was very narrow. It is true as defendant states, that such zone of peril for plaintiff (aware of the approach of the truck) extended no farther beyond the path of the truck than the distance in which he could safely stop short of its path; or (otherwise stated) the truck driver's duty commenced when the streetcar came so close to the path of the truck that it became apparent (at the speed and manner it was moving) that it would not stop before reaching it. Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694 and cases cited. Nevertheless, considering the evidence most favorable to plaintiff, we think this was an issue for the jury. We think so because we believe the jury could reasonably have found that, when the truck was 60 feet from the track and the front of the streetcar reached the middle of the street, it was apparent at the speed and manner the streetcar was moving (swinging around the 90~ curve, 3 to 4 miles per hour, with its gong sounding) the streetcar would not stop before reaching the path of the truck, which was very near the center of the street, according to plaintiff's testimony. 'It is the reasonable appearances of the situation that imposes the duty to act.' Ukman v. Hoover Motor Express Co., Mo.Sup., 269 S.W.2d 35. Defendant's own testimony showed ability to stop the truck in 45 feet, including reaction time, and it must also be considered that the truck was traveling uphill on a street only 30 feet wide at this place. Under all these circumstances, (including no sign of skid marks) it would not be unreasonable for the jury to believe that the truck driver (knowing the car was turning), instead of performing the duty imposed on him by the streetcar entering the zone of peril, tried to beat it through the intersection.

Defendant argues that the left (south) side of the truck was 8 feet south of the north curb (based on defendant's evidence that the truck was traveling 2 feet south of the curb and overlooking plaintiff's evidence that it was traveling near the middle of the street) and that plaintiff could stop the streetcar in 9 feet (which was not shown to include reaction time); from which factors defendant says it can be demonstrated that the truck was so close to the streetcar at the time a true situation of peril arose that the collision could not thereafter have been avoided. From these factors, defendant says the zone of peril of plaintiff commenced no more than 17 feet south of the north curb (9 feet stopping distance plus 8 feet for the distance of the left side of the truck from the north curb) and defendant using its computation as to the average speed of the streetcar (certainly not most favorable to plaintiff) around the curve (28 feet from the beginning of the curve to the point where defendant says the zone of peril began) reaches the conclusion that the truck would have only been 23 feet west of the track and could not have avoided the collision either by stopping or swerving. As to this, we think it is sufficient to say (for the reasons we have indicated) that this was not the only view the jury could take; but instead could have believed plaintiff's testimony that the truck was 60 feet away, traveling near the center of the street, when the front of the streetcar (rounding the curve) reached the middle of the street and that plaintiff's imminent peril began then. If this is true, defendant's driver, by prompt action, could have stopped the truck before reaching the streetcar or could have avoided it by swerving, since he said he did swerve 5 or 6 feet in the last 10 feet he traveled and which was the only time he attempted to swerve. It would certainly be a reasonable finding that be could have turned into Yale Avenue (a street more than 80 feet wide, where it connected with Wise Avenue, with two driveways and a parkway strip in the center) if he had begun to turn 60 feet away from the tracks.

Defendant also argues the physical facts as showing plaintiff's contentions to be impossible, relying especially upon Freed v. Mason, Mo.App., 137 S.W.2d 673. This argument is based on the condition and position of the truck and the streetcar after the collision, as shown by the testimony and...