Kelley v. St. Louis Public Service Co.

• Decision Date: 14 April 1952
• Docket Number: No. 42533,No. 2,42533,2
• Citation: 248 S.W.2d 597
• Parties: KELLEY v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 597

248 S.W.2d 597

KELLEY v. ST. LOUIS PUBLIC SERVICE CO.

No. 42533.

Supreme Court of Missouri, Division No. 2.

April 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 12, 1952.

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

Michael B. Gershenson, St. Louis, for respondent.

BOHLING, Commissioner.

The St. Louis Public Service Company, a corporation (defendant), appeals from a judgment for $8,000 in favor of Pearl M Kelley (plaintiff) for personal injuries sustained while standing on the sidewalk near a curve in defendant's tracks when struck by the left rear side of one of defendant's streetcars which extended over onto the sidewalk in going around the curve. Plaintiff charged defendant was guilty of primary negligence and negligence under the humanitarian doctrine. She predicated a recovery solely on defendant's humanitarian duty to warn or to stop. Defendant contends that plaintiff failed to make a submissible humanitarian case; that error was committed in the giving and refusing of instructions, in the admission of evidence, and in overruling defendant's objections to prejudicial argument; and that the judgment is grossly excessive.

The accident happened at defendant's 'South Side Loop' for its Broadway cars, located about 8600 South Broadway, St. Louis, Missouri, at about 6:07 p. m. on July 20, 1949. It was daylight and the weather was dry. Defendant's southbound Broadway streetcars turn left into the loop, entering at the south, travel east for a short distance, thence north, thence back west to Broadway, where they turn right and proceed north on Broadway. The curve or turn to the north for a car coming out of the loop was at the sidewalk and caused the rear end of an old type car, known as the Peter Witt streetcar, to swing out from the south rail of the track approximately five feet to the south and over the sidewalk.

Plaintiff, a woman 41 years old, worked about one-half block south and lived about one-half block north of the loop. Plaintiff was walking home on the east sidewalk of Broadway after work on the evening in question. She passed the tracks at the south end of the loop and, as she came to the north tracks, she noticed a streetcar, practically around the bend, proceeding west on the north tracks toward her. The car was a Peter Witt streetcar and had no passengers. She stopped on the sidewalk about 3 1/2 feet from the south rail of said north tracks and waited for the streetcar to pass. It was approximately 78 feet along the track westwardly from the curve at the back of the loop to where plaintiff was standing on the sidewalk, She did not walk up there after the front end of the streetcar had passed. She was facing north, with her head turned toward the east, watching the streetcar. She was standing looking north before she was struck. The front end and the biggest part of the streetcar had passed her (we understand the front end of the streetcar was out in the street approximately 50 feet) when the left rear side of the streetcar as it passed over the curve in the tracks at the sidewalk swung out from the rail and struck and injured her. There was no warning by gong or otherwise from the streetcar and it proceeded around the curve and north on Broadway without slackening speed or stopping.

Defendant had painted 'yellow warning' lines along the sidewalk marking the overswing of the streetcars as they rounded the curve. Plaintiff passed over the place of the accident frequently, had seen these markings, and knew that the back end of the streetcars would swing out as they went around the loop. Plaintiff testified that, if there were any marks there the day she was injured, she did not see them, and that she did not realize she was in danger. There was testimony that the marks had been repainted about two days before plaintiff was injured, but there was other testimony that on the night of the accident the marks were covered with dust and dirt and the repainting occurred after plaintiff was injured.

Plaintiff proved that the streetcar was traveling 8 to 10 miles an hour and could have been stopped in 25 to 30 feet at 10 miles an hour. A motorman testified that in going out of the loop the speed would not exceed 3 to 5 miles an hour.

Plaintiff's charge of primary negligence was a violation of the vigilant watch ordinance of St. Louis which requires motormen to maintain a vigilant watch and to stop in the shortest time and space possible upon the first appearance of danger. A number of defendant's motormen testified that had they seen a woman in plaintiff's position as they approached on the westbound track they would have warned her by sounding a gong, 'hollering' at her waving or chasing her out of the way, or would have stopped the car in time to have avoided striking her.

The testimony for defendant was that no motorman saw plaintiff at the time and place in question.

Defendant claims error in the overruling of its motion for a directed verdict. Defendant says there was no showing that plaintiff's demeanor was such as to indicate she was in a position of imminent peril in time for the motorman to have stopped or warned plaintiff and avoided the collision; and, in the circumstances, that the motorman was entitled to assume plaintiff was paying reasonable attention to her surroundings and, having the present ability (by stepping back) to easily avoid the danger if cognizant of it, would avoid the danger, until the motorman had reason to suspect the contrary, and that he had no reason to realize plaintiff was inattentive and, therefore, in peril. Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368, 371; Wilkerson v. St. Louis Pub. Service Co., Mo.Sup., 243 S.W.2d 953, 955; Clark v. Atchison T. & S. F. R. Co., 319 Mo. 865, 6 S.W.2d 954, 960; Bean v. St. Louis Pub. Service Co., Mo.App., 233 S.W.2d 782, 787; Butler v. United Rys. Co., 293 Mo. 259, 238 S.W. 1077, 1081. Defendant's cases involved factual situations of apparent and known danger to a reasonably attentive plaintiff. The Restatement of Law of Torts, Sec. 480, p. 1259, quoted in the Womack case, states that a reasonable chance 'that the plaintiff will not discover his peril is enough to require the defendant to make a reasonable effort to avoid injuring him.'

The facts of defendant's cases and of the instant case differ. We have said the danger from the outward swing of the rear end of a streetcar rounding a curve is a lurking or hidden danger and 'the motorman has no right to assume * * * that in the presence of a hidden danger a person of ordinary prudence would be presumed to step back to avoid injury.' State ex rel. Siegel v. Daues, Banc, 318 Mo. 256, 300 S.W. 272, 274, quashing Siegel v. Wells, Mo.App., 287 S.W. 775, 776, which applied the principle here urged by defendant in similar circumstances. For other humanitarian submissions see Robinson v. Kansas City Pub. Serv. Co., 345 Mo. 764, 137 S.W.2d 548; Flynn v. Kansas City Rys. Co., Mo.App., 226 S.W. 974; and for submissions of primary negligence see Laurent v. United Rys. Co., Banc, Mo.Sup., 191 S.W. 992; Rabushka v. Wells, Mo.App., 22 S.W.2d 870. Defendant's motorman, although stationed at the front end of the car, was in charge of the whole of the streetcar and under the facts of record the jury could find he knew or should have known that plaintiff was within the path of the outward swing of the rear of the car as it proceeded along the curve across the sidewalk. Dutcher v. Wabash R. Co., 241 Mo. 137, 165, 145 S.W. 63, 70, states: 'Care to be due requires that alarm signals be given when they would be effective. And due care requires that the attempt to stop should be made, as a last resort, when it would be effective; for, if defendant owed any duty to stop at all, that duty must begin when it amounts to something worth while,' Plaintiff made a submissible humanitarian case on defendant's duty to stop and we also think defendant's duty to warn under the humanitarian rule was a fact issue for the jury.

A plaintiff's contributory negligence in similar cases would generally be a question for the jury. The Laurent and Rabushka cases, supra. We may not say that plaintiff, although she knew the rear end of the car would swing out, was aware of the danger of her position and is to be deprived of her humanitarian submission on the ground the motorman could assume she would step back sufficiently far to avoid injury. The testimony of defendant's motormen does not warrant the assumption. The inquiry is: Was defendant negligent?

Plaintiff's verdict directing instruction read in part:

'The court instructs the jury that if you find and believe from the evidence that at the place referred to in the evidence the track of the defendant crossed the sidewalk and turned north into Broadway, and if you further find * * * that the rear end of streetcars in making the turn extended out dangerously beyond the rails and over the sidewalk, if so, and that * * * plaintiff was upon the sidewalk and standing in close proximity to the streetcar track and that defendant * * * operated a streetcar at said time and place across the sidewalk and if you further find * * * that at said time plaintiff was in a position of imminent peril of being struck by the overhang of said streetcar, if the same proceeded into and upon the curved track, and that the streetcar in question proceeded on and the rear end thereof extended beyond the rail and struck the plaintiff, if you so find, and that plaintiff was oblivious to her danger, if any, and if you further find' that defendant's motorman saw or by the exercise of ordinary care could have seen plaintiff's imminent peril of being struck by the rear overhang of said streetcar, and her obliviousness, in time thereafter in the exercise of ordinary care to have stopped said streetcar or to have given a timely and adequate warning to plaintiff, and avoided injuring plaintiff; 'and if you...