Kagan v. St. Louis Public Service Co.

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; ANDERSON, P. J., and WOLFE; RUDDY
• Citation: Kagan v. St. Louis Public Service Co., 360 S.W.2d 261 (Mo. App. 1962)
• Decision Date: 18 September 1962
• Docket Number: No. 30829,30829
• Parties: Earl KAGAN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.

Page 261

360 S.W.2d 261

Earl KAGAN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.

No. 30829.

St. Louis Court of Appeals, Missouri.

Sept. 18, 1962.

Donald L. Schmidt, St. Louis, William M. Corrigan, St. Louis, of counsel, for appellant.

Orville Richardson, Louis Gilden, Hullverson, Richardson & Hullverson, St. Louis, Corinne Richardson, St. Louis, of counsel, for respondent.

BRADY, Commissioner.

This is an action for damages arising out of personal injuries the respondent allegedly sustained when his automobile was struck from the rear by defendant's streetcar. Trial terminated in a jury verdict in favor of respondent in the amount of $4,000.00. The trial court overruled appellant's timely after trial motions and it has perfected this appeal. This is the second appearance of this case before this court, the first trial resulting in a $3,500.00 verdict for the respondent. Upon appeal from that judgment, this court reversed the judgment and remanded the cause, Kagan v. St. Louis Public Service Company, Mo.App., 334 S.W.2d 379.

The essential facts of the occurrence are stated in the earlier opinion in this case and, since in this trial the respondent received the jury verdict and also because the appellant contends the trial court erred in denying its motions for a directed verdict, the evidence will be reviewed in the light most favorable to the respondent, giving him the benefit of all reasonable inferences to be drawn therefrom and confining ourselves to the issues submitted, Thaller v. Skinner & Kennedy Company, Mo.App., 307 S.W.2d 734, transf. Mo., 315 S.W.2d 124; La Tour v. Pevely Dairy Company, Mo.App., 349 S.W.2d 436. Those facts, as amplified by the testimony given at this trial, are that the respondent, driving eastwardly on Olive Street in the City of St. Louis, stopped at a traffic signal at the intersection of Olive Street and Compton Avenue. Respondent had been stopped there for fifteen or twenty seconds when the streetcar hit his automobile from the rear. The force of the impact sent respondent's automobile forward so that the front end of it was about halfway into Compton. The streetcar came to a stop where his car had been. The impact damaged the trunk lid of his car, 'crashed in' the trunk, and the bumper was 'pushed in a little.' The license plate and trunk lid hasp were pushed in 'somewhere between two and four inches.' At the scene a Mr. Christie came up to respondent and identified himself. The balance of his testimony on direct and on cross-examination dealt with his injuries, visits to various doctors, and other similar matters which will be discussed in connection with the appellant's allegations of error dealing with the excessiveness of the verdict and the giving of the measure of damage instruction.

The eyewitness, Mr. Christie, testified that on the date and at the time of the occurrence in evidence he was on his way to the downtown office of his employer, the National Cash Register Company, and was awaiting public transportation facilities at the Olive Street and Compton intersection; that he was standing in the safety zone awaiting the arrival of the eastbound streetcar and was about three feet to the rear of the respondent's car which was stopped on the tracks; that '* * * About the time the car would be approaching the left end of the safety zone, I heard quite a sound and noticed that the streetcar, coming at apparently a normal rate of speed, on entering the zone was making a clamoring sound, the bell was ringing, and it seemed to me there was a lot of metal clanging. What the noise was, I can't say; it was unusual. Realizing that the car could not possibly stop until contact was made with the parked car, I immediately tried to get as far as possible away from the automobile.' The witness further testified that the impact pushed the car forward to the center of the intersection, that the streetcar's speed did not decrease before the impact; that when he looked toward the streetcar he '* * * noticed that, from the appearance of the motorman's face, or the operator of the car's face, that he was doing everything humanly possible to stop the car.' This concluded the respondent's evidence concerning the happening of the collision.

The appellant's evidence concerning the happening of the collision was given by one Anthony Hollerback, who testified he was superintendent of railway maintenance for the appellant and has been engaged in this general field for thirty-nine years; that there is a difference in the braking of automobiles when compared to streetcars which he attributed to the fact that steel wheels on steel rails do not have the 'road adhesion' that auto tires have to a road; that streetcars will occasionally slide on rails even with their brakes applied due to leaves being on the rails, 'rail sweat' caused by changes in temperature, or oil and grease droppings on the rails; and that an operator of a streetcar has an eye level five to six feet above the level of the street and cannot normally see whether or not there is oil or grease on the tracks. On cross-examination this witness testified that because streetcars are harder to stop, one has to 'start stopping them sooner' and pay more attention to what he is doing.

Mr. Fred H. Kassel, testified for the appellant that he was a process server and was employed by the appellant to serve a subpoena on one Conrad Schleuter, the operator of the streetcar, and that appellant gave him an address of 5598 Waterman. His testimony of the efforts to find Schleuter is as follows:

'* * * When I went to that address and checked the mailboxes, there was no Conrad Schleuter listed there, but alongside of the mailbox there was a 'phone number to call in case of renting the apartment. So, when I checked the apartment before I left, there was no answer. When I returned to my office I called the 'phone number and talked to the woman who answered, and she had no recollection of any Mr. Conrad Schleuter living at that address.

'Then I consulted the City Directory and found an address at 5011 1/2 Lotus. I went to that address, I think the following day, and found no Mr. Schleuter at that address and could get no information of anyone by that name living there.

'Then from the Public Service Company I received information to try the Windemere Hotel which is located on Clara and Delmar. On going out there one evening, I talked to the man behind the desk, the clerk, and he checked their records and found that Mr. Schleuter had been there January 29, 1960, for approximately two weeks, which would bring it up into February sometime, and he had left there and there was no forwarding address. And this was as far as I could go on it.'

On cross-examination, Kassel testified that he had been serving subpoenas since 'about 1935'; that he does all of that type of work for the appellant; that he was not told how long Schleuter had worked for the company, neither was he given access to the employment records of the company, nor was he told the social security number of this person, nor whether or not be belonged to a union; that he did not use any of the private firms who locate people in the City of St. Louis although he knew of the existence of such firms; that when he went to the Waterman address he found it was an apartment house; that he did not ask anyone who lived there where Schleuter was; that when he talked to the manager he did not ask how long she had been manager, or who the owner of the building was, or who collected the rent for the apartments; that the Lotus address came from a 1959 City Directory published by Polk Directory; that he did not contract the Polk firm to see if they had a current address on Schleuter; that this address has apartments above street level stores; that he did not ask any of the people there whether they knew Schleuter; that he did not try to find the owner of the building on Lotus to ascertain if that person had any addresses of former residents; that he made no attempt to contact other people named Schleuter to determine if they were related to this man; that he received the subpoena on the 6th or 7th of October; that it provided for Schleuter's appearance on October 17th; that he did not make any return on the subpoena; that the subpoena he was given was not issued by the Clerk of the Circuit Court but by a notary public; that he did not have the subpoena, having 'probably' destroyed it, and so did not file it in the records in the case.

At the conclusion of the testimony by this witness, appellant's counsel stated, '* * * I would like to read the testimony of Conrad Schleuter which was given under oath in a trial of this lawsuit which began on February 19, 1959.' Respondent's counsel objected, out of the hearing of the jury, on the ground that 'due diligence' had not been shown. The trial court sustained the objection. Following a recess, the appellant offered the witness Goeglein who testified that he was superintendent of employment for appellant; that Conrad Schleuter had been an employee of appellant, beginning work on October 1, 1951 and ending on March 24, 1960; and that he gave his address as the Windemere Hotel. Again out of the hearing of the jury, the following occurred:

'MR. SCHMIDT: At this time, Your Honor, I again renew the fact that I do wish to read into evidence the testimony of Mr. Conrad Schleuter given at the first trial of this case. We have made every effort to locate this man. We have checked his last known address and all the Public Service Company's records and we have every right to read his testimony into evidence. The man was cross-examined at the time of his last testimony. I would also point to the transcript that, at that time, his address was given as 5598 Waterman. We have made effort to check these addresses, as the testimony of Mr. Kassel indicated, and we feel that the testimony of Mr. Schleuter is relevant and...