Miller v. St. Louis Public Service Co.

• Decision Date: 12 April 1965
• Docket Number: No. 2,No. 50671,50671,2
• Citation: Miller v. St. Louis Public Service Co., 389 S.W.2d 769 (Mo. 1965)
• Parties: Russell MILLER, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant. CITY PRODUCTS CORPORATION, a corporation, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 769

389 S.W.2d 769

Russell MILLER, Respondent, v.ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant.

CITY PRODUCTS CORPORATION, a corporation, Respondent, v.ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant.

No. 50671.

Supreme Court of Missouri, Division No. 2.

April 12, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

May 10, 1965.

George W. Cady, St. Louis, for respondent, Russell Miller.

Lusser & Lusser, Rene J. Lusser, Rene E. Lusser, St. Louis, for respondent, City Products Corporation.

James Ruddy, St. Louis, for appellant.

PRITCHARD, Commissioner.

Respondent Miller filed his action for personal injuries against appellant wherein he prayed for $75,000 damages.RespondentCity Products Corporation also filed its action pursuant to Section 287.150 RSMo 1959, V.A.M.S., to recover from appellant $8,497.40 paid as workmen's compensation benefits to Miller, it being alleged that he was injured during the course of his employment with City Products.The actions were consolidated by the trial court.

Trial beginning on November 4, 1963, was to a jury which returned a verdict for appellant and again respondents.Respondents' motions for new trial were sustained upon two specified grounds, (1) that the giving of InstructionNo. 2 upon the burden of proof was error; and (2) that the verdict was against the weight of the evidence.From the order granting a new trial this appeal has been perfected by appellant.We have jurisdiction by reason of the amounts prayed for exceeding $15,000.Const.Mo.1945, Art. V. Sec. 3 V.A.M.S.

Appellant challenges the order for new trial first upon the theory that it was an abuse of discretion upon the trial court's part because respondents failed to make a submissible case; and second that Miller was contributorily negligent as a matter of law.(Appellant says also that the giving of InstructionNo. 2 on the burden of proof was not error, and that there was no evidence to be weighed because appellant put on none relating to liability.)We therefore examine the evidence in its light most favorable to respondents.

Respondent Miller testified that on the date of his injury, August 14, 1959, he was employed by respondentCity Products Corporation, with duties of delivering ice to taverns and restaurants, for which he drove a 1 1/2 ton truck equipped with a cab and body.Between 8:00 and 8:30 a. m. on that date he arrived in the 2400 block on 14th Street in St. Louis, Missouri, between North Benton and North Market streets.He parked his truck headed south between a parking meter and an alley on the west side of 14th Street which was 36 feet wide.His truck was about 7 feet side and extended that distance into the street from the curb.Miller then walked across the street to the Colonial Tavern (an ice customer) and remained there three or four minutes.He then came back out, and stepped out into the street 6 or 7 feet past some cars parked on the east side of 14th Street, looked to the south and to the north, but did not see a thing coming in the immediate block.He could see north to Benton Street about 130 feet and south to Market Street about 150 feet.

Miller then began walking at a normal gait toward the cab portion of his truck, and diagonally across the street in a southwest direction for a distance of about 22 feet.When he reached the truck he heard 'like somebody had their hand on the horn' and he'figured they was going to belt me' and he squeezed up against the cab of the truck right at the cab door, with his body against it and his legs up to the running board.Miller had just started to reach for the truck cab door when he heard the horn.He heard a scrape and a 'thump' coming from the rear of the truck two or three seconds after he heard the horn.He remembered nothing more at that time, having been rendered unconscious.After he regained consciousness Miller saw a man at the scene of the accident wearing a gray uniform and a Public Service shield on the top of his cap.He also saw a Public Service bus to the south of him parked at about North Market Street.Other witnesses put the distance of the bus from Miller at about 35 feet.Miller was then lying alongside his truck, about 2 feet from it.He then lost consciousness again, and awoke later in a hospital.

Although not in issue here, we mention that, among others, Miller received injuries to his right leg which necessitated hospitalization, the wearing of a cast, a brace and the use of a cane for a time.

On the day of the accident the weather was warm and there was no rain or anything on the street which made it hazardous to stop.

The photographs of the truck as it appeared after the accident were put in evidence.On its left side it had a scrape or indentation mark at the left rear near the top; an angle iron was pulled away from the lower left rear of the truck, and the metal of the bed was pushed inward at that point.An indentation and scrape mark were also on the left front of the truck bed, which extended beyond the door of the cab between 12 and 14 inches.Miller testified that before the accident the truck had been newly painted and had no damage to it, other than on the rear where blocks of ice were pulled from the truck.

Benjamin J. Moynihan testified that on August 14, 1959, he was a passenger in the front part of a St. Louis Public Service bus--the Florissant bus line which travels on 14th Street.As the bus was going south on 14th Street he heard a 'thump' noise coming from the rear of the bus at the time the bus passed the truck.He looked back and saw a man lying in the street.The bus stopped within 35 feet of the truck.

Joe Musiol testified that on the morning of August 14, 1959, he was driving beer to the Colonial Tavern on 14th Street.He saw Miller walk across the street to his truck, and when Miller was 6 inches or a foot away from the truck Musiol saw a red Public Service bus going south.Musiol yelled, 'Look out, you'll get hit,' but knew that Miller didn't hear him.All of a sudden the bus was by and he heard a 'thump' and then saw Miller lying on the street, and he went across the street to see what he could do for him.

Defendant's argument with respect to the submissibility of plaintiffs' cases is that the evidence did not show when the operator of the bus failed to keep a proper lookout, and that there was no evidence that the defendant had the means and ability to have avoided the accident.Plaintiffs, on the other hand, argue that there is evidence that the bus operator failed to keep a proper lookout, and that it is not incumbent upon plaintiffs to prove that because of such failure to keep a lookout the negligent bus operator failed to stop or swerve, or sound a timely warning.

The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions.It is only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril.

It has long been the rule that it is unnecessary to hypothesize in an instruction upon the lookout doctrine the exact manner in which, or means by which, the party charged with negligence in failing to keep a proper lookout could have acted to have avoided a collision.(Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 25[9-10]; see also the now effective Missouri Approved Instructions, Secs. 17.02and17.05.)We do...