Mollman v. St. Louis Public Service Co.
| Decision Date | 19 February 1946 |
| Docket Number | No. 26882.,No. 26883.,26882.,26883. |
| Citation | 192 S.W.2d 618 |
| Parties | MOLLMAN v. ST. LOUIS PUBLIC SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.
"Not to be reported in State Reports."
Action by Gertrude Mollman against the St. Louis Public Service Company and another to recover damages for personal injuries sustained by plaintiff when taxicab in which she was riding as a passenger was struck by named defendant's street car. Verdict and judgment for plaintiff against both defendants, and each defendant appeals separately.
Affirmed as to named defendant and reversed as to the other defendant.
Mattingly, Berthold, Jones & Richards, of St. Louis, for appellant St. Louis Public Service Company.
Calhoun & Boisseau, of St. Louis, for appellant Mound City Cab Company.
Everett Hullverson, of St. Louis (Orville Richardson, of St. Louis, of counsel), for respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff, Gertrude Mollman, when a taxicab of Mound City Cab Company in which she was riding as a passenger was struck by one of St. Louis Public Service Company's street cars. Both the cab company and the public service company were named as defendants to the action. Tried to a jury, a verdict was returned in favor of plaintiff, and against both defendants, for the sum of $7,000. The case comes to this court upon each defendant's separate appeal from the judgment which was entered in accordance with the verdict.
The accident happened on Grand Boulevard at the south side of its intersection with Blaine Avenue, in the City of St. Louis.
Plaintiff had called the taxicab to take her from her mother's home on Longfellow Boulevard in South St. Louis to a destination on Raymond Place in North St. Louis.
Westwardly bound on Lafayette Boulevard, the taxicab made a boulevard stop at the east line of Grand Boulevard, and then made a right turn and proceeded north on Grand Boulevard for two blocks until it reached Blaine Avenue, where it stopped on the northbound street car track, a few feet behind another automobile, while waiting for a change in the traffic signal. Upon turning north into Grand Boulevard, both plaintiff and the driver of the taxicab, one Marceno, noticed a northbound Grand Boulevard street car standing at the regular car stop just south of Lafayette Boulevard, taking on and discharging passengers. Lafayette Boulevard is about sixty feet in width, with an additional sidewalk space of about fifteen feet to the point in the street where the front end of the street car was stopped. According to their own testimony, neither plaintiff nor Marceno took any further notice of the street car, but while they were stopped behind the other automobile awaiting the change in the traffic light, the street car ran into the rear end of the taxicab, throwing plaintiff down upon the floor of the cab, and producing the injuries for which she has sued.
A materially different version of the occurrence, which appeared from the testimony of plaintiff's witness Hickman, the street car motorman, was that as the northbound street car was approaching the intersection with Blaine Avenue, the taxicab was suddenly swerved over upon the track immediately ahead of the street car, and then suddenly brought to a stop behind the standing automobile, where it was struck in the rear by the front of the street car.
The actual issues in the case with respect to both the separate and the joint liability of the two defendants are revealed by the several instructions which were given on plaintiff's behalf.
Instruction No. 1 predicated a recovery against the public service company alone upon the ground of the motorman's alleged violation of the vigilant watch ordinance of the City of St. Louis in failing to see the taxicab either on or moving towards the track and in danger of being struck by the street car, and in failing thereafter to stop the street car in the shortest time and space possible under the circumstances.
Instruction No. 3 was based upon the humanitarian doctrine, and directed a verdict against the public service company alone if the jury found that the motorman either saw, or by the exercise of ordinary care could have seen, the taxicab in imminent peril of being collided with by the street car in time thereafter to have stopped the street car and have avoided the collision, but negligently failed to do so.
Instruction No. 7 directed a verdict against the cab company alone if the jury found that the driver of the taxicab swerved the same in front of the street car, and came to a stop when the street car was in close proximity to the taxicab, and at a time when the motorman could not stop the street car in time to avoid a collision.
Instruction No. 9 directed a verdict against both defendants jointly, the public service company's liability being predicated upon the motorman's negligence under the humanitarian doctrine as theretofore hypothesized in instruction No. 3, and the cab company's liability being predicated upon a finding that the driver swerved the taxicab onto the street car track in front of the approaching street car, and then suddenly stopped the same.
Both defendants complain of the court's refusal of their respective requests for a peremptory instruction at the close of all the evidence.
We have already pointed out that plaintiff called both the taxicab driver and the street car motorman as witnesses in her behalf; and, as would naturally have been expected in such a situation, the testimony of each of such witnesses was generally calculated to cast the responsibility for the accident upon the other. This inevitably led to certain material inconsistency in the testimony of the two witnesses; and with plaintiff endeavoring to have the advantage of the most favorable portions of all of such testimony for the purpose of fastening liability upon both defendants, she now finds herself in a difficult position, and particularly so as regards the cab company's request for a peremptory instruction, where there is the further complication that plaintiff's own testimony was substantially corroborative of that of the driver of the taxicab, and contradictory of the testimony of the motorman of the street car.
The courts of this state adhere to the principle of law which draws a logical distinction between the testimony of a party and that of a mere witness in the case.
A party is not in all events conclusively bound by the adverse testimony of his witness, but he himself, or any of his witnesses, may testify to a contradictory state of facts, leaving the whole issue to be resolved by the jury in the light of all the facts and circumstances in evidence. Not so, however, in the case of the testimony of the party himself, which may be of such a character as to have all the force and effect of a judicial admission.
This is not to say that a party is to be bound by his mere estimate of such things as time, speed, or distance; and his own testimony in regard to such matters, if obviously constituting no more than his personal estimate or opinion, will not preclude him from relying upon contrary testimony, so long as such contrary testimony is consistent with his theory of the case. State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Pabst v. Armbruster, Mo.App., 91 S.W.2d 652; Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299. But if he testifies positively and understandingly to the basic facts and circumstances in the case, and in the event his testimony would defeat his recovery, he makes no subsequent correction or modification under the claim of confusion or mistake, he may not have the benefit of the testimony of other witnesses which is contradictory of his own testimony with respect to the same matters. In other words, he cannot make out a better case for himself than he himself has testified to where his case involves facts within his own knowledge, for if this were to be allowed, it would be tantamount to permitting him to say for his own advantage that his own testimony should be regarded as false, and that of some other witness as true. And not only is he to be denied the right to have his case aided or supported by any of his adversary's evidence which contradicts his own testimony in regard to the material facts and circumstances upon which his cause of action depends (Elkin v. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600), but he is no less to be barred from relying upon the testimony of any of his own witnesses which directly conflicts with that which he himself has given. McCoy v. Home Oil & Gas Co., Mo.App., 60 S.W.2d 715; McCullough v. Chicago, R. I. & P. R. Co., Mo.App., 88 S.W.2d 400; Ireland v. Shukert, Mo.App., 177 S.W.2d 10; Partney v. Agers, Mo.App., 187 S.W.2d 743.
In this case, plaintiff herself testified that she last saw the street car when the taxicab turned north on Grand Boulevard out of Lafayette Boulevard; that when the taxicab entered Grand Boulevard, it went directly north, with its wheels at all times straddling the east or outer rail of the northbound car track; that at no time before the collision was it swerved over to the left upon the track; that it passed no street car between Lafayette Boulevard and Blaine Avenue, where it was brought to a gradual stop behind the other automobile at the traffic light, which had shown red for as much as half a block away; and that after it had been at a standstill for an appreciable length of time, it was run into by the street car and knocked forward against the other automobile, which was standing some few feet directly in front of it.
While it is true that plaintiff's own testimony did not purport to reveal each and every relative fact or situation involved in the occurrence of the accident (such, for instance, as the speed of the street car or its precise location...
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