Marczuk v. St. Louis Public Service Co.

• Citation: 196 S.W.2d 1000,355 Mo. 536
• Decision Date: 14 October 1946
• Docket Number: 39784
• Parties: John Marczuk v. St. Louis Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

196 S.W.2d 1000

355 Mo. 536

John Marczuk v. St. Louis Public Service Company, a Corporation, Appellant

No. 39784

Supreme Court of Missouri

October 14, 1946

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed.

Mattingly Berthold, Jones & Richards and Douglas H. Jones for appellant.

(1) Plaintiff failed to prove the speed of the streetcar or that it could be stopped after he came into imminent peril. There was a total failure of proof and no liability was established under the humanitarian doctrine. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Pentecost v. St. Louis Merchants' Bridge Term. R. Co., 334 Mo. 572, 66 S.W.2d 533; Burge v. Wabash R. Co., 244 Mo. 76, 148 S.W. 925; Karr v. Chicago R.I. & P.R. Co., 341 Mo 536, 108 S.W.2d 44; Camp v. Kurn, 235 Mo.App. 109, 142 S.W.2d 772; State ex rel. Alsup v. Tatlow, 346 Mo. 1025, 144 S.W.2d 140; Schall v. United Railways, 212 S.W. 890; Jordan v. St. Joseph Ry., 38 S.W.2d 1042; Beal v. St. Louis-S.F. Ry. Co., 256 S.W. 733. (2) The court erred in refusing to give defendant's requested instructions C and D withdrawing allegations of negligence with reference to the three mile speed ordinance and to the vigilant watch ordinance. The speed ordinance did not apply to plaintiff and was illegal and void. Therefore, no liability could be predicated upon such ordinance. Plaintiff's argument with relation to the vigilant watch ordinance which was not submitted to the jury was prejudicial and erroneous. 1 Raymond on Missouri Instructions, sec. 157, p. 166; Heibel v. Ahrens, 55 S.W.2d 473; Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W.2d 681; Brand v. Herdt, 45 S.W.2d 878; Crossno v. Terminal R. Assn., 328 Mo. 826, 41 S.W.2d 796; Homer v. Roberts, 153 F.2d 726; Stephens v. Kansas City Gas Co., 191 S.W.2d 601; Polkowski v. St. Louis Pub. Serv. Co., 229 Mo.App. 24, 68 S.W.2d 884. (3) Plaintiff's entire case is based on antecedent negligence and not on failure to avoid the accident after plaintiff became and was in imminent peril. Antecedent negligence cannot be considered in a humanitarian case. Wright v. Spieldoch, 139 S.W.2d 42; Teague v. Plaza Express Co., 190 S.W.2d 254; Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; White v. Kansas City Pub. Serv. Co., 347 Mo. 895, 149 S.W.2d 375; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Bumgardner v. St. Louis Pub. Serv. Co., 346 Mo. 521, 102 S.W.2d 595; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116. (4) The ordinance prohibiting a speed of more than three miles per hour is unconstitutional, unreasonable, against the interests of the riding public, and is not applicable to plaintiff, a pedestrian, but was enacted solely for the protection of passengers boarding or alighting from a streetcar. Plaintiff submitted his case under a void ordinance which did not create liability. A verdict obtained on such evidence is prejudicial and erroneous. City of St. Charles v. Union Electric Co. of Mo., 185 S.W.2d 297; Mueller v. Hoffmeister, 343 Mo. 430, 121 S.W.2d 775; Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922; State ex rel. Spenser v. Anderson, 101 S.W.2d 531; State ex rel. Anderson v. Daues, 287 S.W. 603; Anderson v. Wells, 273 S.W. 233; Mansfield v. Wagner Elec. Mfg. Co., 294 Mo. 235, 242 S.W. 400; Rittenhouse v. St. Louis-S. F.R. Co., 299 Mo. 199, 252 S.W. 945; Degonia v. St. Louis, I.M. & S.R. Co., 224 Mo. 564, 123 S.W. 807; Cornett v. Chicago, B. & Q. R. Co., 184 Mo.App. 463, 171 S.W. 15; Kuba v. Nagel, 124 S.W.2d 597; Corey v. Losse, 297 S.W. 32. (5) Plaintiff was not in imminent peril until he reached a point three to six feet from the southbound tracks. Thereafter operator could not stop his car in time to avoid striking plaintiff. Having failed to prove ability of defendant to avoid accident after plaintiff came into a position of imminent peril, plaintiff cannot recover under the humanitarian doctrine. The submission of the case under this theory of law was prejudicial and erroneous. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; State ex rel. Kansas City Pub. Serv. Co. v. Bland, 191 S.W.2d 660; Teague v. Plaza Express Co., 190 S.W.2d 254. (6) The court erred in directing a verdict for plaintiff under his humanitarian instruction for failure to sound a warning signal, as plaintiff was aware of the approach of the car. Phillips v. St. Louis-S.F.R. Co., 337 Mo. 1068, 87 S.W.2d 1035; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Lotta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296. (7) Defendant was deprived of his right to cross-examine plaintiff's speed witness regarding facts in other accidents which showed conclusively that his present testimony was not true. Such deprivation was prejudicially erroneous. Porter Motor Corp. v. United States Casualty Co., 18 S.W.2d 113; O'Malley v. St. Louis, 343 Mo. 14, 119 S.W.2d 785. (8) The verdict of the jury for $ 18,000 was grossly excessive and indicates passion, prejudice and undue sympathy on the part of the jury. Where a verdict is so grossly excessive a new trial should be granted because the excessiveness cannot be cured by a remittitur. Jones v. Pennsylvania R. Co., 182 S.W.2d 157; Jones v. Thompson, 184 S.W.2d 407; Wellinger v. Terminal R. Assn., 183 S.W.2d 908; Darlington v. Railway Exchange Building, 183 S.W.2d 101; Baker v. Kansas City Pub. Serv. Co., 183 S.W.2d 873.

Everett Hullverson and Albert I. Harris for respondent; Orville Richardson of counsel.

(1) Plaintiff made a submissible case under the humanitarian doctrine on the motorman's failure to stop after plaintiff's discoverable peril arose. At that time the streetcar was at least 110 feet away and even if it was traveling at 30 miles an hour it could have been stopped at that rate of speed in 45 to 50 feet. Kent v. Kiel, 97 S.W.2d 885; Crews v. K.C. Pub. Serv. Co., 341 Mo 1090, 111 S.W.2d 54; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Schimmelpfenning v. Wells, 24 S.W.2d 154; Bode v. Wells, 322, Mo. 386, 15 S.W.2d 335; Diel v. St. L. Pub. Serv. Co., 193 S.W.2d 608; Hoodenpyle v. Wells, 10 S.W.2d 331; Goggin v. Wells, 249 S.W. 702. (2) Plaintiff made a submissible case under the humanitarian doctrine on the motorman's failure to slacken speed after plaintiff's discoverable peril arose. Plaintiff was almost across the track when struck by the 2-foot overhang of the streetcar, so that the retardation of the speed of the car for the barest fraction of a second would have saved him. Gerran v. Minor, 192 S.W.2d 57; Schimmelpfenning v. Wells, supra; McGowan v. Wells, supra; Hoodenpyle v. Wells, supra; Goggin v. Wells, supra; Diel v. St. L. Pub. Serv. Co., supra. (3) Plaintiff made a submissible case under the humanitarian doctrine on the motorman's failure to sound a warning after plaintiff's discoverable peril arose. Although plaintiff had noticed the far approach of the streetcar, which he thought was going "real slow," he then looked to the west in crossing the snowy, slippery street and did not again notice the car until it was 4 or 5 feet from him. During the entire time he was discoverably oblivious to his peril, and the motorman's failure to sound a warning after peril arose was a concurring cause of the collision. State ex rel. Sirken & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50, quashing certiorari, 85 S.W.2d 911; Philips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335; Diel v. St. Louis Pub. Serv. Co., 192 S.W.2d 608; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761. (4) The court did not err in giving Instruction 2 submitting a violation of the "three-mile ordinance", and did not err in refusing defendant's Instruction D seeking to withdraw that charge. This point is too vague and indefinite to invoke any ruling of this court on appellate review Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284; Kleinschmidt v. Globe-Democrat Pub. Co., 350 Mo. 250, 165 S.W.2d 620; Eisenbarth v. Powell Bros. Truck Lines, Inc., 161 S.W.2d 263; Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 S.W.2d 1055. (5) The unconstitutionality of the ordinance was not raised at the earliest opportunity, that is, in the answer, although the ordinance had been pleaded in plaintiff's amended petition. Magill v. Boatmen's Bank, 250 S.W. 41; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 792; Nemours v. City of Clayton, 351 Mo. 317, 172 S.W.2d 937. (6) The ordinance was not objected to on these grounds until the next day after it was introduced, and therefore the objection was too late. Cheffer v. Eagle Discount Stamp Co., 348 Mo. 1023, 156 S.W.2d 591. (7) In any event the ordinance is not unreasonable, void, unintelligible, or unenforceable, but is a proper exercise of the police power of the City of St. Louis. (8) Nor is the ordinance applicable only to those pedestrians who have just alighted from streetcars; it may be invoked by any pedestrian. The very nature of the duty imposed by the statute and the benefits resulting from its performance show that it is applicable to all pedestrians. That is the test. Fairport, etc., R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446; 38 Am. Jur. 836. (9) The ordinance was broad enough to cover the case of any person emerging from behind a streetcar, regardless of who he was, whence he came, or whither he was gonig. Dickson v. Omaha & St. L. Ry. Co., 124 Mo. 140, 27 S.W. 476; Ward v. Ely-Walker Dry Goods Co., 248 Mo. 348, 154 S.W. 478; Kuba v. Nagel, 124 S.W.2d 597; Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439, 18 S.W. 1103; Huckleberry v. Mo. Pac. R. Co., 324 Mo. 1025, 26 S.W.2d 980. (10) The ordinance properly created civil liability for its violation. ...