Johnson v. St. Louis Public Service Co.

Decision Date08 September 1952
Docket NumberNo. 2,No. 42862,42862,2
PartiesJOHNSON v. ST. LOUIS PUBLIC SERVICE CO
CourtMissouri Supreme Court

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

Gragg & Aubuchon, J. Edward Gragg and O. P. Owen, St. Louis, for respondent.

BOHLING, Commissioner.

Frankie Johnson recovered a judgment for $12,500 against the St. Louis Public Service Company, a corporation, for injuries sustained in a collision with a streetcar. Defendant appealed. Plaintiff submitted her case solely under the humanitarian doctrine on negligence of defendant in failing to warn of the approach of or to stop its streetcar. Defendant claims that plaintiff failed to make a submissible case; that improper argument, misconduct of the jury, and plaintiff's main instruction constituted reversible error, and that the damages are grossly excessive.

We take the testimony most favorable to plaintiff.

The accident happened on October 11, 1949, about 7:00 p. m., at or near the intersection of Thirty-ninth street and Cleveland avenue in the City of St. Louis, Missouri. The weather was described as 'beautiful.' Thirty-ninth is a north and south street, 40 feet wide, and Cleveland is an east and west street, 30 or 35 feet wide. Defendant maintains double streetcar tracks on Thirty-ninth street, with about 10 feet between the outside rail and the curb. Shenandoah avenue is one block south of Cleveland avenue and defendant's northbound Park avenue streetcars enter Thirty-ninth at Shenandoah, making a left-hand turn.

On the afternoon in question plaintiff, who had been a patient in a hospital for 3 1/2 years, went to Mrs. Mabel Frick's home, 3965 Cleveland avenue west of Thirty-ninth street, to make arrangements for a room. Mrs. Frick accompanied plaintiff when she left the Frick home. They proceeded east along the north side of Cleveland to Thirty-ninth and thence south, across Cleveland, to the southwest corner of Cleveland and Thirty-ninth. Here they talked until they saw a Park avenue streetcar turning onto Thirty-ninth at Shenandoah. Plaintiff intended to take passage on this car. They then parted. Mrs. Frick proceeded north across Cleveland and plaintiff east across Thirty-ninth. Plaintiff testified she proceeded east across Thirty-ninth street until she stepped over the first rail of the northbound tracks, where she stopped to permit two approaching northbound automobiles, one following the other and about 75 feet south of her, to pass. She placed said streetcar about 200 or 150 feet south of her at that time, and, looking in front of her, or east, saw the automobiles pass her near or over the east rail of the northbound tracks. She did not see the streetcar again. She intended to go across after the automobiles passed, and did not know why she did not; and did not remember taking a step or two or moving after that. The next thing she remembered was when she regained consciousness in the hospital.

Ray H. Jones, defendant's motorman, was plaintiff's first witness. He testified that the streetcar overlaps the tracks; that he was looking ahead at all times as he approached Cleveland avenue, and that at no time were there any pedestrians in front of the streetcar. The first he knew of anything unusual occurring was when he heard a 'thump on the left side of the streetcar and someone holloed I had hit something and I immediately stopped.' The thump was from behind his position at the front of the streetcar. He stopped and for the first time saw plaintiff, who was then lying approximately in the center of the intersection. The headlights on the streetcar were on and he could see objects 80 feet ahead. The brakes were in good condition and he could stop the streetcar at the speed it was traveling, 15 miles an hour, in about 60 feet. He stopped with the back end of the streetcar just clear of Cleveland avenue. He testified Mrs. Frick stated at the scene that plaintiff 'had run for the streetcar and was waving good-bye to her.' Mrs. Frick denied making the statement.

There was also testimony by plaintiff, by Mrs. Frick, plaintiff's witness, and by Kenneth Harris, defendant's witness, from which a jury could find that no bell or gong was sounded.

Mrs. Mabel Frick testified she stepped down from the curb and had taken about four steps northwardly across Cleveland avenue when she heard a noise, saw plaintiff flying through the air, and, as nearly as she can remember, plaintiff landed on the southbound streetcar tracks north of the center of Cleveland and almost to the opposite sidewalk. After stating she did not remember whether the streetcar had stopped when she first saw plaintiff in the street, she also stated the streetcar had crossed Cleveland avenue when she saw plaintiff 'land.' She did not see anything strike plaintiff.

Kenneth Harris testified that he was a passenger on the streetcar and heard a 'thud' on the left side of the streetcar when it was about to the corner, and the streetcar moved only about half the width of Cleveland avenue, where it stopped and blocked the traffic; that three boys on the rear seat and two girls about three seats up were passengers on the streetcar, and some older persons were seated near the center of the streetcar. He placed plaintiff on the southbound tracks close to the southwest corner of the intersection after the accident.

Marylyn Smith, defendant's other witness, testified the first she knew of the accident was when the streetcar stopped and that plaintiff was lying on the southbound streetcar tracks near the southwest corner. She was seated in the third seat from the rear of the streetcar.

Defendant's position is that at best plaintiff's evidence only permits of an inference that plaintiff ran or walked into the side of the streetcar, if she and the streetcar collided, and it is insufficient to make a submissible case under the humanitarian doctrine. The contention ignores plaintiff's testimony which would authorize findings that she was and remained on defendant's northbound tracks while the streetcar was approaching for a distance of 200 or 150 feet, and testimony favorable to plaintiff as to her position on the intersection after the collision. Although the motorman was plaintiff's witness, his testimony that he saw no pedestrian as he approached the intersection presented a fact issue for the jury to determine according as to whether they accepted the testimony favorable to plaintiff or the motorman's testimony. One of the defendant's witnesses testified that the streetcar stopped with its back end in the middle of Cleveland avenue and blocked the traffic. Lefkowitz v. Kansas City Pub. Serv. Co., Mo., 242 S.W.2d 530, 532[3-5], citing cases; Brungs v. St. Louis Pub. Serv. Co., Mo.App., 235 S.W.2d 81. The case of Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, stressed by defendant, where the movements of deceased in the vicinity of the accident were not known is distinguishable on the facts, as well as plaintiff's cases of Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282, 284[6, 7]; Hoock v. S. S. Kresge, Mo.App., 222 S.W.2d 568; Schoen v. Plaza Express Co., Mo., 206 S.W.2d 536; State ex rel. Wabash R. Co. v. Bland, 313 Mo. 246, 281 S.W. 690; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31.

However, defendant also contends plaintiff is bound by certain testimony in her deposition, which defendant says she stated was true on cross-examination at the trial and is inconsistent with her testimony at the trial, there being no explanation covering the inconsistencies between her testimony in the deposition and at the trial. The following cases, wherein others are cited, are stressed: Hayes v. S. S. Kresge Co., Mo.App., 100 S.W.2d 325, 328; Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626, 633; Harper v. St. Joseph Lead Co., 361 Mo. 129, 233 S.W.2d 835, 839; Krause v. Laverne Park Ass'n, Mo.App., 240 S.W.2d 724, 727.

Defendant directs our attention to testimony in plaintiff's deposition to the following effect: That plaintiff first saw the streetcar when she was in the middle of the street, and it was about 200 feet south of her and had completely rounded the corner at Shenandoah; that plaintiff stopped in the center or middle of the street and looked south; that she stopped to let a couple of automobiles go by; that the automobiles went by and she did not remember what then happended; that she did not remember moving at all; that she had stepped between the tracks when she next saw the streetcar; that it was then about 150 feet away, and that she did not remember what she then did or whether she moved from that point. In connection with this cross-examination at the trial, plaintiff testified she did not recall many of the statements in the deposition, but that if she gave the testimony she meant it to be true and that it was true; that she believed it to be true; and also that she was not in the middle of the street when she first saw the streetcar but she saw it making the turn while she was standing on the curb; that it was not a fact that she stopped in the middle of the street to let the automobiles pass and then stepped onto the streetcar tracks, testifying that she did not move after the automobiles passed. When, in answer to a question, she started to explain her condition at the time the deposition was taken--'I was so sick and so upset, I couldn't--,' counsel interrupted her.

We think the inconsistencies went only to the credibility of plaintiff and did not destroy her testimony at the trial. Other witnesses described the tracks as being in the middle of the street; and it does not appear that the questions in the deposition were so framed as to call for the distinctions now attempted to be made out of plaintiff's answers. She estimated the streetcar was 150 feet from her when she stepped between the tracks and last saw the streetcar, as we read the deposition. Rothe v. Hull, 352 Mo. 926, 180...

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