Hughes v. St. Louis Public Service Co., s. 28376
| Decision Date | 16 September 1952 |
| Docket Number | Nos. 28376,28377,s. 28376 |
| Citation | 251 S.W.2d 360 |
| Parties | HUGHES v. ST. LOUIS PUBLIC SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Carroll J. Donohue, H. Jackson Daniel and Salkey & Jones, St. Louis, for defendant-appellant, St. Louis Public Service Co.
Hullverson & Richardson, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Mildred Hughes, when a service car in whih she was riding as a passenger was struck in the rear by a street car owned and operated by defendant St. Louis Public Service Company.
The service car was owned by one Robert Redmond, and was being operated at the time by his employee, A. B. Patton. Both Redmond and Patton were joined as defendants along with St. Louis Public Service Company.
The accident happened in the City of St. Louis at a point on Easton Avenue slightly west of Vandeventer Avenue. Patton was driving his service car westwardly on Easton Avenue, and after stopping on the west side of Vandeventer Avenue to permit one of his passengers to alight, he angled directly over upon the westbound street car track on Easton Avenue and then continued on his course to a point about the middle of the block, when the service car was struck in the rear by one of defendant St. Louis Public Service Company's westbound Wellston street cars which had come up from behind and overtaken it.
The case was submitted against defendant St. Louis Public Service Company upon the charge that after the service car had been operated westwardly upon the street car track for a distance of one hundred feet or more, the street car overtook the service car and was carelessly and negligently permitted by its operator to run into and collide with the rear end of the service car, whereby plaintiff was caused to receive her injury.
For reasons which will presently appear, the theory upon which plaintiff's case was submitted against defendants Redmond and Patton is now immaterial. So also as regards the cross-claim asserted by defendant Redmond against defendant St. Louis Public Service Company for the damage done to his service car.
On plaintiff's cause of action the jury found in favor of plaintiff, and against all three defendants, in the sum of $3,000. On defendant Redmond's cross-claim the jury found against him, and in favor of defendant St. Louis Public Service Company.
Judgment was entered in accordance with the verdict; and following the overruling of the several motions for a new trial or for judgment, defendant St. Louis Public Service Company filed its separate notice of appeal to this court, while defendants Redmond and Patton joined in a like notice of appeal.
As a consequence of the filing of two notices of appeal in the trial court, copies of both were transmitted to this court, and as each copy was received it was filed under a docket number of its own. However this does not mean that there are two cases pending in this court, each of which is to be disposed of separately, but instead there is only the single case before us, just as there was in the court below. Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; Waterman v. Waterman, Mo.App., 210 S.W.2d 723; Montana v. Nenert, Mo.App., 226 S.W.2d 394. Defendant St. Louis Public Service Company has perfected its appeal, but defendants Redmond and Patton have done nothing towards complying with the rules since giving notice of appeal. Consequently their appeal must be dismissed, leaving the case to stand in this court as though they had filed no notice of appeal, and to be determined upon the points relied on by defendant St. Louis Public Service Company.
It will be observed that plaintiff's case against defendant St. Louis Public Service Company was submitted upon what the latter's counsel refer to in their brief as to rearend collision doctrine. By this they mean the doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68; Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 304; Hollensbe v. Pevely Dairy Co., Mo.App., 38 S.W.2d 273.
As the petition had been drawn, and as it had stood throughout the trial, it had lacked sufficient language to charge defendant St. Louis Public Service Company with actionable negligence under the rearend collision doctrine, but had instead been confined to allegations of negligence under the humanitarian doctrine and in failing to keep a lookout and a vigilant watch. In other words, in drawing the petition the pleader had obviously had no thought of invoking the rear-end collision doctrine as a ground of recovery against defendant St. Louis Public Service Company; and in the portion of the petition setting forth the manner in which the collision had occurred had consequently neglected to state specifically and with particularity that the street car had been following behind the service car, and that it had been caused to overtake and strike the service car in the rear.
After the close of the evidence, and while could not counsel were considering the instructions, plaintiff's counsel sought and obtained permission, over defendant St. Louis Public Service Company's objection, to amend the petition so as to supply the omissions in the statement of a case under the rear-end collision doctrine. Defendant St. Louis Public Service Company now contends that the court erred in permitting such amendment setting up a new ground of negligence upon which plaintiff relied exclusively in the submission of her case against it; and that in any event the evidence was insufficient to justify the court in overruling the motion for a directed verdict and in submitting the case upon the theory in question under plaintiff's instruction No. 1.
We can see no basis for interference with the action of the...
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