Johnson v. St. Louis Public Service Co.

• Decision Date: 12 February 1951
• Docket Number: No. 41863,No. 2,41863,2
• Citation: 361 Mo. 844,237 S.W.2d 136
• Parties: JOHNSON v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 136

237 S.W.2d 136

361 Mo. 844

JOHNSON v. ST. LOUIS PUBLIC SERVICE CO.

No. 41863.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1951.

Motion for Rehearing or to Transfer to Court En Bane Denied

March 12, 1951.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.

Everett Hullverson, St. Louis (Orville Richardson, St. Louis, of counsel), for respondent.

ELLISON, Presiding Judge.

The defendant Public Service Company appeals from a judgment for $15,000 in favor of the plaintiff-respondent in her action for damages brought under Sec. 3653, R.S.1939, Mo.R.S.A., and Sec. 3654, Laws Mo.1945, p. 846, for the wrongful death of her husband in a collision between a St. Louis Fire Department automobile in which he was riding [hereinafter called the 'fire car'] and one of appellant's motor passenger busses, at the intersection of Twelfth and Market Streets in St. Louis, about 11 a. m. on Sunday, October 19, 1947. The verdict and judgment were for the full amount allowed by the statute, Sec. 3654, supra.

The errors assigned are that: (1) the trial court improperly overruled appellant's motions for a directed verdict, because respondent's decedent was guilty of contributory negligence as a matter of law, and the evidence was insufficient to make a submissible case under the humanitarian doctrine; (2) the court erred in giving three instructions requested by respondent, and in refusing one requested by appellant; (3) and the court unduly limited the closing argument of appellant's counsel.

The chauffeur of the fire car, John Frandeka, also brought a suit against appellant for his injuries in the same collision on the same grounds, primary and humanitarian negligence. The trial court refused to submit the humanitarian issue but Frandeka recovered a judgment on primary negligence. This court recently reversed that judgment on the theory that Frandeka was guilty of contributory negligence as a matter of law. But the cause was remanded on the theory he might make a submissible case under the humanitarian doctrine. The case, Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540.

Getting back to the facts here. Respondent's deceased husband was a Battalion Chief of the St. Louis Fire Department, and in response to a fire alarm would go to fires within his district in a Department fire car, which in this instance was a Ford automobile of distinctive red color, equipped with a radio and loud siren. On this occasion he and his chauffeur, Frandeka, a substitute driver, were returning from a non-fire mission to the City Hospital, when an alarm was received on the radio in the fire car. Frandeka testified it said 'alarm sounding,' and gave an address on Olive Street. He asked the Chief 'If that's us,' and the Chief replied 'Yes, that's us; let's go.' They drove to Twelfth Street and thence proceeded north thereon at high speed for two or three blocks to the scene of the instant casualty at the Market Street intersection.

Twelfth Street extends north and south and is 110 feet wide, with parallel streetcar tracks occupying a 15 foot strip in the middle. Market Street runs east and west and is 76 feet wide. There are electric traffic signals on all four corners of the intersection, the lights of which change in sequence from red to left turn to green to amber. It is in a legally designated 'congested area' of the city, with the Federal Building on one corner, the Civil Courts Building on another, the City Hall on the third, and the Plaza extending west along the north side of Market Street from the fourth corner. Two of appellant's passenger bus lines traverse the intersection. One called the Lindenwood bus follows Market Street both east and west across Twelfth on the green light. The other, called the Gravois bus, travels west on Market Street to the intersection and makes a left turn south onto Twelfth on the appropriate electric signal.

Very shortly before the casualty, according to the testimony of appellant's witness Virgil Allen, driver of the westbound Gravois bus on Market Street, he stopped at the southeast corner of the Market-Twelfth Street intersection east of the crosswalk just as the green light went on. He had to wait until it changed to left turn before he could proceed southward on Twelfth. As he stopped he heard a siren sounded. Looking south he saw the fire car coming north on Twelfth Street about even with the 'south drive' of the City Hall on the southwest corner of the intersection. It was traveling about on the southbound (west) streetcar track on Twelfth, at a speed of 65-70 miles per hour according to his estimate. The witness did not see a Lindenwood bus behind him until it had passed his bus and got out in the middle of the streetcar tracks on Twelfth. The fire car by that time had reached the east-west crosswalk over Twelfth, and struck the bus about the middle at the side door.

Appellant's witness Donald Thompson, driver of the westbound Lindenwood bus just mentioned, testified he was traveling about 50 feet behind and to the right of the Gravois bus, about 8 feet from the curb. Seeing the traffic light was green he proceeded west across Twelfth Street at about 15 miles per hour without slowing up or stopping. He heard no fire siren until he was on the street car tracks in front of the fire car. He had therefore traveled about 55 feet [1/2 of 110 feet] from the east side of the intersection. Then he heard a woman passenger scream and when he glanced to his left he saw for the first time the fire car about 75 feet south of the south curb of Market Street. He heard no siren except a low moan the very instant before the fire car crashed against the middle side of his bus. He estimated the fire car speed at 55-60 miles per hour.

On cross-examination he said he looked south down Twelfth Street after passing the standing Gravois bus and before crossing the adjacent north and south crosswalk, but neither saw nor heard the fire car. He could see over the top of automobiles parked along Twelfth. Later he said he looked south when he reached the north and south curb line about 16 feet further west, and could see south on Twelfth Street for half a block. But still later he said he looked south only one time, before he heard his woman passenger scream and first saw the fire car. He did not stop, slacken speed, swerve or signal with his horn at any time.

Witness Thompson did not state the distance in which he could stop the bus at the 15 mile speed he was traveling. He admitted he told the police he could have stopped it in ten feet. But on the stand he denied the accuracy of that estimate. As to effective reaction time he said 'it takes just long enough to take your foot off the gas.' He thought this would be about a second. The Frandeka opinion, supra, states he said there that at 15 miles per hour he could have stopped the bus in 23 to 25 feet. As to the distance in which he did stop he testified in this case that the back end of the bus [which was 33 feet long] was even with the west curb line of Twelfth Street when it came to rest. When the collision occurred it was astride the mid-line of Twelfth Street, 55 feet east of the west line thereof and 39 feet east of the west curb line, which latter was 16 feet out in the street. Since the bus was astride the mid-line, one-half its length or about 16 1/2 feet projected into the 39 foot distance to the west curb. In other words, the front of the bus was 39 feet minus 16 1/2 feet, or 22 1/2 feet from the west curb when the collision occurred, and the rear of the bus was even with that curb line when it came to rest. The bus therefore traveled 22 1/2 feet, plus its length, 33 feet, or 55 1/2 feet after the collision. The fire car was turned clear around and faced south.

The above two bus drivers were the main witnesses for appellant as to the immediate facts leading up to and at the time of the collision. Plaintiff-respondent's main witness on those facts was Frandeka, the driver of the fire car. He said that as he proceeded north on Twelfth Street and approached Market Street he was traveling about in the middle of Twelfth Street at a speed of 50-55 miles per hour, and was sounding his siren constantly over a distance of about two blocks. When he was about a half-block from Market Street he noted the automobiles on the street had been stopped on the sides, and he continued on until within about 20 feet of the south line of Market Street when the Lindenwood bus suddenly shot out in front of him without warning or slackening speed. He put on his brakes and tried to swerve, but could not avert the collision. The fire car hit the bus on the side a little off the center. At the speed he had been traveling he thought he could have stopped in 140-160 feet.

On cross-examination Frandeka said he imagined he could have slowed down to 15 miles per hour in about 115 feet, and could have stopped in about 140 feet. He said he did not look to see whether the electric traffic signal was in his favor, and did not slow down any time before he saw Thompson's bus. When he was 150 feet south of the Market Street intersection he saw the whole intersection and there were no cars in it that had not stopped. It was shown that in a previous deposition he had said when he did see the Thompson bus he was unable to tell whether it was moving or stopped. And it was further shown that at the previous trial he had stated he never saw the bus until it was in the center of the street on the streetcar tracks.

A number of eyewitnesses called by one or the other of the parties severally estimated the speed of the fire car at or between 50-60 miles per hour. Only the appellant's Gravois bus driver Allen extended it to 70 miles. The speed in miles per hour of the Lindenwood bus that was struck was variously estimated by the witnesses at: a little over 4-5 by one; by others at 10-12; 12-15; 15 by Thompson, the driver of that bus; 15-20 by...