Madden v. Red Line Service

• Decision Date: 04 December 1934
• Docket Number: No. 22968.,22968.
• Citation: 76 S.W.2d 435
• Parties: MADDEN v. RED LINE SERVICE, Inc.
• Court: Missouri Court of Appeals

76 S.W.2d 435

MADDEN v. RED LINE SERVICE, Inc.

No. 22968.

St. Louis Court of Appeals. Missouri.

December 4, 1934.

Rehearing Denied December 18, 1934.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Action by Marilyn Madden, an infant, by her next friend, John Madden, against Red Line Service, Inc., a corporation. Judgment for plaintiff, and defendant appeals.

Reversed.

Oliver J. Miller and Lashly, Lashly & Miller, all of St. Louis, for appellant.

A. E. L. Gardner, of Clayton, for respondent.

BECKER, Judge.

Plaintiff recovered judgment against defendant in her action for damages for personal injuries alleged to have been caused by the negligence of the defendant. Defendant in due course appeals.

The defendant owns and operates a bus line, engaged in the transportation of passengers from a point in Wellston to the village of Overland in St. Louis county, Mo. The starting point of this bus route is at Irving avenue in Wellston, out St. Charles Rock road to the Woodson road, then south thereon to Overland, and beyond to the village of Lackland.

Plaintiff had lived with her mother and father on Delphine avenue in the village of Overland; Delphine avenue being approximately five or six blocks south of St. Charles Rock road. Delphine avenue runs into Woodson road from the east but does not extend beyond it. The street immediately to the north of Delphine avenue is Baltimore avenue, which starts at Woodson road and runs to the west.

Plaintiff, on the evening of January 5, 1932, left her place of employment in Wellston about 6 o'clock and became a passenger on one of the defendant's busses at its terminal in Wellston, as she had been in the habit of doing daily for some five years. It was dark at the time and it was raining. The chauffeur in charge of the bus had regularly theretofore stopped the bus and let plaintiff off at the southwest corner of Delphine avenue and Woodson road, so that she would alight on the west side of Woodson road opposite the south line of Delphine avenue where Delphine avenue connects with Woodson road. Plaintiff, upon entering the bus, paid her fare and, according to her usual custom, told the chauffeur she wanted to get off at Delphine avenue. On the bus that evening was another commuter, Charles B. Murphy, who usually took the same bus that plaintiff did, getting off at Baltimore avenue, which is some 200 feet north of Delphine avenue. According to Murphy, he had been in the habit of watching for a confectionary store on the left-hand side going south on Woodson road, located about 50 feet south of Tudor street, and, when the lights of the confectionary came into view, he would pull the signal cord, thus giving the chauffeur of the bus time to stop the bus at Baltimore avenue. On this particular night Murphy did not notice the confectionary store until he was almost opposite it, when he pulled the cord signaling for a stop. Murphy testified that "the concrete was slippery and he pulled the bus to a slow stop, which was considerably past Baltimore. I would say the front of the bus was around ten feet, eight or ten feet north of the north line of Delphine avenue. When I stepped down out of the lighted bus I was confused for the moment. I knew I was somewhere past Baltimore. I hesitated for a moment until I could get my bearings and then I continued on north, and went parallel with the road, and got about thirty or forty feet when I heard a thud, * * * and I turned and saw her body sliding in a northwestern direction on the concrete, and I saw the headlights of a machine facing north. * * * The very next moment the automobile which I noticed on the other side was speeding away."

Plaintiff testified she got off at the same stop as did Murphy; that for a moment she did not know where she was and not being able to see light on the porch of their home, which was located on the south side of Delphine avenue some 200 or 300 feet east of Woodson road, she knew the bus had not stopped at the usual stopping place, and for the moment did not know where she was; that after the bus started up, going south on Woodson road, she turned around where she stood on the western edge of the concrete of the road but did not move from the spot where she had alighted from the bus when she was struck and knocked unconscious.

Woodson road is a concrete highway much traveled by automobiles and trucks, and at the time in question there were no lights to illuminate Woodson road in that locality.

At the close of plaintiff's evidence and again at the close of the entire case, the defendant requested an instruction in the nature of a demurrer, each of which was overruled. The jury, upon submission of the case, returned a verdict in favor of plaintiff and against the defendant in the sum of $2,000, and from the resulting judgment defendant appeals.

Appellant urges here that the trial court erred in refusing to give defendant's peremptory instruction offered at the close of all the evidence because the proof did not establish any actionable negligence on the part of the defendant.

The negligence alleged in plaintiff's petition is that defendant, "by its agents and servants, negligently and carelessly caused plaintiff to alight in the rain and darkness at a place in said Woodson road made perilous and dangerous by automobile traffic at said time and at a dangerous and unsafe place."

Assuming for the purpose of the case, but without so deciding [however, see Gallagher v. St. Louis Public Service Co., 332 Mo. 944, 59 S.W.(2d) 619; Lacks v. Wells et al., 329 Mo. 327, 44 S.W.(2d) 154], that the defendant's chauffeur, under the circumstances here shown, was guilty of negligence in stoping his bus and discharging plaintiff at the place on Woodson road as claimed by plaintiff, yet defendant would not be liable for the injuries sustained by plaintiff unless such negligence was the proximate cause thereof, for even though defendant's chauffeur was negligent in leaving plaintiff off at an unsafe and dangerous place, defendant cannot be required to respond in damages for the injury to plaintiff if caused by an occurrence over which defendant had no control, and which it could not reasonably have foreseen as the result of such negligence [Borack v. Mosler Safe Co., 288 Mo. 83, loc. cit. 90, 231 S. W. 623, 624].

Upon the question as to whether or not the negligence of defendant was the proximate cause of the injury to plaintiff, we summarize the facts shown by the record. Plaintiff herself, on her direct examination, testified: "* * * When we got to Woodson road and before I got off Mr. Harmon (chauffeur) said, `Here's your stop.' And I got out and it was so dark and it was raining and there were no lights around the place. * * * And I was just standing there and had not moved a step. I knew in back of me there was a big gully and I did not want to move and was standing there and trying to find out which way to go and where I was, when something hit me. There were no street lights along Woodson road at that time. When I got off the bus I felt the concrete and I was standing on the concrete. I concluded I was not at the regular stopping place because I did not see any lights from our house. For the moment I did not know where I was. There are no lights when you are riding in the bus, but they turn the lights on when you start to get off and then they turn them off. When I got off the...