Horrell v. St. Louis Public Service Co., 44343
| Decision Date | 14 March 1955 |
| Docket Number | No. 44343,No. 1,44343,1 |
| Citation | 277 S.W.2d 612 |
| Parties | Harley HORRELL, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Lloyd E. Boas, St. Louis, for appellant.
William H. Dahman, Tenney & Dahman, St. Louis, Robert L. Smith, Clayton, for respondent.
COIL, Commissioner.
St. Louis Public Service Company (herein called defendant) has appealed from respondent's $15,000 judgment for personal injuries. Defendant contends that the trial court erred: in giving instruction 1; in the admission and exclusion of evidence; in refusing to declare a mistrial because of an allegedly prejudicial statement by plaintiff; and in refusing to strike allegedly prejudicial comments of the trial court. Defendant also contends that the judgment is grossly excessive. For the reasons stated herein, the judgment should be affirmed.
The evidence was such that a jury reasonably could find the facts to be as they appear in this statement. Respondent (herein called plaintiff) was an employee of Firestone Tire and Rubber Company. That company rented to, and maintained tires for, defendant for use on its busses. Plaintiff was stationed at defendant's Lindenwood garage and bus storage area during the time in question. His duties were to inspect, repair, keep properly inflated, and otherwise maintain bus tires. On August 5, 1952, plaintiff found a low tire on the inside, right rear, dual wheel of bus 3546. That bus was parked as the northernmost in a row of four busses, each of which was facing south. About two or three feet to the west of this first row was a second row of three busses, each also facing south, the northernmost of which was even with and parallel to the third bus in the first row. Consequently, there was no bus parked in the second row immediately west of and alongside bus 3546, on the west side of which plaintiff was working.
At about 11:30 a. m., plaintiff, pursuant to his standard procedure, was trying to straighten the bent valve stem at the bottom of the inside rear right wheel preparatory to inflating the tire. This operation required him to kneel beside, and work his hand through a small opening in, the west outside dual wheel. While so engaged, he heard the motor of the northernmost bus in the second row start. He looked up and to the south and, through the rear-view mirror attached to the left side of that bus, saw defendant's mechanic, Zahn, in the driver's seat.
Defendant's rules required that, before moving a bus on the storage lot, the driver determine, by an inspection of the surrounding premises, that no one was in a position of danger from the intended movement, sound a horn before moving the bus, and back it at not to exceed five miles per hour. And it was usual for mechanics to start bus motors to build up pressure when they did not intend to move the bus. Plaintiff, having knowledge of those rules and this usual procedure and relying on them, continued his work at the tire. When he heard a noise made by the shifting of gears, he again looked toward the bus he had previously observed and saw it moving backward 'pretty fast' and directly toward him. He succeeded in removing his hand through the space in the outer wheel and had attained a standing position when the left rear corner of the backing bus struck his left elbow and threw him against the side of bus 3546 in such a manner that his chest was against that bus. The backing bus continued for a few feet and, when it stopped, plaintiff was 'caught' or 'crushed' between the two busses. Zahn then moved his bus in such a manner as to release plaintiff. Immediately thereafter, Zahn said that he did not know plaintiff was there.
Zahn testified that he could have seen plaintiff before he moved his bus if he had looked and if plaintiff was where he said he was. Plaintiff testified that, when he looked up the second time and saw that the other bus was backing toward him, he did not know whether Zahn turned the wheels or, if so, how much, and that 'probably his [Zahn's] bus wasn't set straight when he first started out or something.' (Defendant's repeated statements in its argument that the evidence was to the effect that the bus 'swerved' into plaintiff by some manipulation by the driver after it started backward is not a necessary or even reasonable conclusion from plaintiff's testimony above noted.)
As defendant points out, instruction 1 directed, in the alternative, a plaintiff's verdict if the jury found that Zahn's failure to look out for plaintiff before he backed the bus or while he was backing the bus, was negligence and a proximate cause of plaintiff's injury. Defendant contends that the instruction was erroneous because the evidence showed that the failure to have kept a lookout before backing the bus could not have been a proximate cause.
Our statement of the facts demonstrates that this contention is without merit. Under the evidence, the jury reasonably could find: that Zahn had the specific duty to look out for plaintiff before backing the bus; that he breached that duty by failing to see plaintiff (in a place admittedly observable if he had looked) in the intended path of the bus; that he backed the bus into plaintiff and injured him; that if Zahn had properly 'looked out' before he moved the bus and had (as in the exercise of ordinary care he could have) discovered plaintiff, the injury would have been avoided by not moving the bus when plaintiff was in the path of the intended movement. Failure to exercise ordinary care to keep a proper lookout, when the duty to keep it exists, is negligence. And if, as in this case, it proximately contributed to cause the injury complained of, liability follows. Lanio v. Kansas City Public Service Co., Mo.Sup., 162 S.W.2d 862, 866; Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, 14.
The fact that defendant may have been guilty of other specific negligent acts or omissions before or after the backward movement began--such as the manner of backing or the failure to warn or to stop, which acts and ommissions may have also proximately contributed to cause the injury--does not, under the facts of this case, prevent the plaintiff from going to the jury on any negligence of the defendant which contributed to the injury; and this, even though the injury would not have occurred but for the occurrence of the other negligent acts or omissions. Gray v. Kurn, 345 Mo. 1027, 1043, 137 S.W.2d 558, 567.
Defendant's argument that the 'mere movement' of the bus could not have proximately contributed to plaintiff's injury apparently confuses 'mere movement' with the movement actually made. Certainly, the jury reasonably could have found that the continuous backward movement which the bus actually made caused plaintiff's injury, and that such injury would have been avoided by a proper lookout before beginning the continuous backward movement.
Defendant further contends that instruction 1 was erroneous because 'it failed to require the jury to find that by keeping a lookout the defendant saw, or could have seen the plaintiff and knew or should have known, that a collision would result if the bus continued to back up'.
As to the contention that the instruction should have hypothesized that 'by keeping a lookout the defendant saw, or could have seen the plaintiff', suffice to say that it was an undisputed fact that Zahn not only could have but would have seen plaintiff, if Zahn had looked and if plaintiff was where he said he was. The jury found that plaintiff was where he said he was. It was not necessary, therefore, to hypothesize this undisputed fact. This is not to say that the instruction would have been erroneous for the assigned reason, even if the fact of whether defendant could have seen plaintiff by a proper lookout was disputed. Whether an instruction under such latter circumstances is erroneous for such an omission depends upon the evidence in a particular case. See: Fortner v. St. Louis Public Service Co., supra, 244 S.W.2d 14, 15; Trzecki v. St. Louis Public Service Co., Mo.Sup., 258 S.W.2d 676, 680.
As to the further contention that the instruction should have hypothesized that defendant 'knew, or should have known, that a collision would result if the bus continued to back up.' Defendant's argument is that even if Zahn had looked, had seen plaintiff in a kneeling position at the wheel of bus 3546, and had started back, still Zahn would thereafter have seen plaintiff attempting to remove himself from the path of the moving bus; and that, therefore, Zahn was not negligent until he knew or should have known that the bus was likely to hit plaintiff. This contention has been answered, in effect, by what we have said heretofore with respect to proximate cause. We may add, however, that the instant case was submitted on primary negligence. While the suggested hypothesis would have been proper in a humanitarian negligence case, in this primary negligence case the suggested hypothesis was only an evidentiary circumstance which the jury could consider in determining whether defendant's employee was negligent for failure to look out before or while backing the bus, in determining the question of proximate cause, and in determining the question of plaintiff's contributory negligence. The suggested hypothesis was certainly a subject for a jury argument and perhaps a basis for a defendant's instruction; but clearly it was not an essential element of plaintiff's primary negligence case.
Defendant's counsel had been cross-examining plaintiff extensively and pointedly in developing that the only times plaintiff had seen a Dr. Cole (plaintiff's witness) were immediately prior to various settings of the case. Plaintiff had been asked several times about the dates of his visits and whether Dr. Cole had or was treating him. Plaintiff had answered that Dr. Cole had...
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