Kasten v. St. Louis Public Service Co., 28791
| Decision Date | 16 March 1954 |
| Docket Number | No. 28791,28791 |
| Parties | KASTEN v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Court of Appeals |
Correnti, McKee, Rosenblum, Fitzgibbon & Goldnhersh, Rexford H. Caruthers, St. Louis, for appellant.
William H. Wyne, Jr., Salkey & Jones, Carroll J. Donohue and Morton M. Hartz, St. Louis, for respondent.
HOUSER, Commissioner.
This is an action for damages for personal injuries sustained by Albert Kasten while he was a passenger on a streetcar operated by the St. Louis Public Service Company. Tried to a jury, a verdict was returned and judgment rendered thereon for plaintiff and against defendant in the sum of $7,250. On defendant's motion the trial judge set aside the judgment and rendered judgment for defendant on the ground that plaintiff did not make a submissible case, and conditionally ordered a remittitur of $2,000 if the order setting aside the judgment be adjudged erroneous. From the judgment for defendant plaintiff has appealed to this court.
The petition alleged that on July 8, 1949 plaintiff, a passenger on a southbound streetcar, extended his arm through a window of the streetcar and that it was struck by one of defendant's northbound streetcars. There were several assignments of negligence but the case went to the jury solely on negligent failure to warn plaintiff of the approach of the northbound streetcar under the humanitarian doctrine.
Plaintiff testified personally and offered four passengers as witnesses in his behalf, in addition to the medical evidence. Plaintiff testified that he boarded a southbound streetcar on Grand Avenue. It was a warm, clear, sunny day. The streetcar windows were 'all the way' open. Plaintiff was looking out of the window to his left--to the east. As the car stopped at the intersection of Grand Avenue and West Pine Street plaintiff saw an old friend of his, one George Olney, standing on the street corner, talking to a man in an automobile. Plaintiff whistled at him, and then extended his left arm out of the streetcar window, waved his hand at his friend, and 'hollered' 'Hi' or 'Hello George.' Plaintiff did not attract Olney's attention immediately. Then Olney looked around, saw plaintiff, waved back at him and said, 'Hi, Al.' Plaintiff 'kept waving, throwing his arm around--left it out there a little while.' After having his arm out of the window for 'a quarter or a half minute,' and when he started to pull his hand in, it was suddenly struck by the front part or front end of a northbound streetcar. Plaintiff saw the northbound streetcar when it hit him. When asked if he saw the operator he testified that the streetcar was going so fast that he 'couldn't see the operator.' The southbound car was stopped at the time of the accident, according to plaintiff. Plaintiff stated that he was sitting in his seat at the time he was waving, and did not get up to extend his hand out of the window. Plaintiff did not know exactly how far he put his arm out of the window. Prior to the accident plaintiff did not see the northbound streetcar coming, and did not hear any bell, gong, or other sound, or receive any other warning of any type. Plaintiff had on a coat which was between a medium and dark grey color.
The testimony of plaintiff's four passenger-witnesses was generally corroborative of plaintiff's testimony with this difference: according to them the southbound car was moving at the time of the accident, and plaintiff was not seated when he waved. They said that while he did not 'get up entirely' he 'kind of stood up a little bit.' They added that a northbound dump truck, traveling on Grand Avenue between the northbound safety zone and the curb, passed the southbound streetcar before the accident. Plaintiff was waving as the truck passed by, and about that time plaintiff's hand was struck by the northbound streetcar. One of the passengers testifying as to the length of time plaintiff's hand was out of the window, said that there was time enough for the dump truck to come alongside the southbound streetcar, pass by, and be seen by him through the rear window. As to the position of the southbound streetcar at the time of the accident, one passenger testified that it had moved south a short distance so that a passenger in the rear seat would have been about on a line with the south line of West Pine Street. Another passenger said that the southbound streetcar had 'just started' and was 'probably' just crossing the street or 'maybe' had gone a little farther when the accident happened. No witness saw the northbound streetcar at any time before the accident. One passenger said that it was 'alongside' when he first became aware of it. There was no evidence as to the position of the northbound streetcar at the time plaintiff first extended his arm from the window, or during the 15-30 second interval while plaintiff was waving, or at any time until immediately preceeding the instant plaintiff's hand was struck. There was no evidence of the speed of the northbound streetcar at any time, except plaintiff's statement that it was going so fast that he could not see the operator. Plaintiff's witnesses as to the speed of the southbound streetcar said that it had 'just started up,' and 'wasn't going too fast, because it hadn't had time to speed up.' The operator of the southbound streetcar, testifying on behalf of defendant, stated that it was going about 10-15 miles per hour 'at the most' and was slowing down for...
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