McVey v. St. Louis Public Service Co.

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47674,47674,1
• Citation: 336 S.W.2d 524
• Parties: Jacob R. McVEY, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 524

336 S.W.2d 524

Jacob R. McVEY, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 47674.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 11, 1960.

Frank B. Green, St. Louis, for appellant.

James F. Koester, St. Louis, for (plaintiff) respondent, Joseph W. Toeniskoetter, St. Louis, of counsel.

HYDE, Judge.

Action for damages for personal injuries sustained when defendant's bus struck the rear of plaintiff's automobile. Plaintiff had verdict for $8,100 and defendant has appealed from the judgment entered.

Defendant's only claim of error is giving Instruction No. 1, which authorized a verdict for plaintiff. Therefore, the facts may be briefly stated. Plaintiff's evidence showed that, driving east on Olive Street intending to turn south on Twelfth Street, he had to stop near the south curb because a bus of defendant ahead of him had stopped at this intersection, in the zone marked for defendant's use in loading and unloading passengers, and there was traffic in the lane on plaintiff's left. This loading zone was estimated as extending from 50 to 75 feet west from Twelfth Street. While plaintiff's car was stopped there, about 10 feet behind the bus in front of him, it was struck in the rear by another bus of defendant. The main fact issues appear from Instruction No. 1 and Instruction No. 4 which authorized a verdict for defendant and which were as follows:

'No. 1. The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence the automobile which was being operated by the plaintiff was headed in an eastwardly direction on Olive Boulevard and that he was in the lane to the right of the center of said Olive Boulevard, and that the Defendant's motor bus was being operated by its agent, chauffeur and employee, and was west of the automobile in which plaintiff was seated, and that said motor was being operated in an eastwardly direction on said Olive Boulevard, and that the motor bus of the defendant overtook the automobile of the plaintiff, if you so find, and that the defendant was thereby negligent, if you so find, and if you further find that the plaintiff was in the exercise of the highest degree of care for his own safety at said time and place, if you so find, and if you further find that the defendant negligently and carelessly allowed its said motor bus to run into and collide with the rear-end of the automobile in which plaintiff was seated, if you so find, and that as a direct result of such negligence, if any, on the part of the defendant, the plaintiff was thereby injured, then, and in that event, the plaintiff is entitled to recover, and your verdict must be in favor of the plaintiff and against the defendant.'

'No. 4. The Court instructs the jury that if you believe and find from the evidence that when the bus driver, Charles Anthony, applied the foot brake of said bus in order to bring the bus to a stop behind plaintiff's automobile the foot brakes completely failed to function so as to check the speed of the bus, and if you find that immediately thereafter Mr. Anthony applied the emergency hand brake in an effort to stop the bus but was unable to stop in time to avoid the collision and if you further find that at all times, both before and after the failure of the foot brake, Mr. Anthony was exercising the highest degree of care and was not negligent in any manner and would have been able to stop said bus in time to have avoided the collision had not the foot brake failed to function, then, under the law of this state, the plaintiff is not entitled to recover and your verdict must be in favor of the defendant, St. Louis Public Service Company.'

At the trial, defendant's driver testified that his brakes operated normally from the time he took the bus out at 7:00 A.M. until the time of the collision about 9:00 A.M. He also said that just before the collision, while driving east on Olive Street, he made a stop at Fourteenth Street and leaving there had a signal for the next stop which was Twelfth Street. At the trial, he said he made the first application of the brakes about 100 feet east of Thirteenth Street, estimating that he was then about 200 feet west of Twelfth Street, when he was driving about 15 miles per hour. (He also said between 10 and 15 miles per hour.) He said he pumped the foot brake five or six times and then pulled the emergency brake and estimated that he had slowed to five miles per hour at the time of the impact. He said on cross-examination that he went about 150 feet trying to use the foot brake, without applying the hand brake, and that after he applied the hand brake he went another 75 feet before the collision. He also admitted that in his deposition he had said that he first applied the foot brake as he crossed Thirteenth Street and that he had said that 60 or 70 feet past Thirteenth Street he grabbed the hand brake. In explanation of these discrepancies, he said: 'The incident happened so fast--I am just giving you the best of my ability, as I can remember it.' Passengers heard the driver say the foot brake failed and plaintiff said he so stated after the collision.

Defendant's first contentions as to Instruction 1 are that plaintiff's petition predicated liability solely upon respondent superior on the negligence of the bus driver but a finding of this essential element was not required; that it authorized a verdict merely upon finding the bus overtook and collided with the rear of plaintiff's car; that it ignored defendant's evidence of a sudden brake failure because of which the driver was unable to stop short of the point of impact; and that it amounted to telling the jury that a finding of negligence of the bus driver was not an essential element of plaintiff's right to recover. Defendant next says that although plaintiff's petition made seven charges of specific negligence, Instruction 1 hypothesized a finding of general negligence. Finally defendant says that by telling the jury they could find defendant negligent upon the single finding that its bus overtook and collided with the rear of plaintiff's car, Instruction 1 assumed the controverted fact that the bus could have been stopped short of collision and thus conflicted with Instruction 4 which submitted that issue to the jury.

Considering these contentions in inverse order, the fallacy of the last contention is that Instruction 1 did not predicate liability on the single finding that the bus overtook and collided with the rear of plaintiff's car. Instead, it required the further findings that in overtaking plaintiff's automobile 'defendant was thereby negligent'; and 'that the defendant negligently and carelessly allowed its said motor bus to run into and collide with the rearend of the automobile in which plaintiff was seated.' Our view is that, because of these required findings of negligence, Instruction 1 cannot be held to assume that defendant's driver could have stopped the...