Newman v. St. Louis Public Service Co., 42680
| Decision Date | 12 November 1951 |
| Docket Number | No. 42680,42680 |
| Citation | 244 S.W.2d 45 |
| Parties | NEWMAN v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Supreme Court |
Edward W. Fredrickson, William L. Mason, Jr., St. Louis, for appellant.
Coburn, Storckman & Croft, Thomas L. Croft and Rexford H. Caruthers, all of St. Louis, for respondent.
This is an action for damages brought by Marion Nickelson for personal injuries he received on March 17, 1949, when he was struck by one of the streetcars operated by respondent. The jury returned a verdict for Nickelson in the sum of $5,000 but the trial court sustained respondent's motion for a new trial. From this order Nickelson duly appealed to the St. Louis Court of Appeals. While the appeal was pending Nickelson died and his administratrix, Pearl Newman, was substituted as the party appellant. The order of the trial court granting a new trial was reversed and remanded with directions to reinstate the verdict and judgment by the St. Louis Court of Appeals. Its opinion is reported at 238 S.W.2d 43. We ordered the case transferred for our review.
On the date plaintiff received his injuries he was crossing Broadway from east to west at a point almost 35 feet north of the intersection of that street with Salena Street in the city of St. Louis. Respondent operates streetcars both north and south on Broadway.
Plaintiff was en route to a tavern on the west side of Broadway, traveling in a northwest direction. When he got within 2 feet east of the east rail of the northbound streetcar track to stopped; he then proceeded northwest to a point a foot west of that rail; he then backed to a point east of that rail; he then started up again to the east rail of that track and then back 2 feet for the third time. At no time after he stopped near the east rail did he get more than 2 feet east of that rail. Plaintiff testified that during all of the time he was in the street he was 'tangled up' because of the traffic. Other witnesses testified that he was 'weaving' and stepping back and forth or 'staggering' and did not appear to be normal, and looked like he was either drunk or sick. According to defendant's operator, plaintiff did not look either way after he stepped back the first time.
Plaintiff testified that after he got out into the street he saw a streetcar coming from the north and waited for it to pass, and when he first saw the one from the south it was 'right at' him. He said he did not know if he was hit by an automobile or a streetcar.
However, the other witnesses, including the motorman, testified he was hit by the streetcar. The motorman further testified that he first saw plaintiff when he came out from between two parked automobiles on the east side of Broadway and walked almost to the east rail the first time without stopping. He observed that plaintiff was unsteady on his feet but could not tell whether it was from drinking or whether he was a cripple. He stated that after he saw plaintiff near the east rail he reduced the speed of the streetcar to 7 miles an hour; that when he was only 5 feet from him, the plaintiff stepped forward toward the car. He also testified that he stopped the streetcar in 9 feet after he applied the brakes.
There was testimony that no warning was given the plaintiff by the operator of the streetcar.
The above evidence seems to be sufficient to pass on the points raised on this appeal because the motion for a new trial was granted on the ground that the court erred in giving the instructions requested by plaintiff.
There were only two instructions submitted by plaintiff and given by the trial court, and since the court did not specify which instruction was erroneous the burden is on respondent on this appeal to point to the erroneous instruction and to the error which it is purported to contain. Supreme Court rule 1.10.
Respondent only contends that instruction No. 3 is erroneous. It is as follows:
'The court instructs the jury that even though you may find and believe from all of the evidence in the case that the plaintiff was himself guilty of negligence which directly contributed to cause his injury, if any; you are further instructed that if you find and believe from the evidence that plaintiff was upon Broadway at the time and place shown to you in the evidence; and if you further find and believe from the evidence that at said time and place he was in a position of imminent peril of being struck by the streetcar described in the evidence; and if you further find and believe from the evidence that he was oblivious of his peril; and if you further find and believe from the evidence that the operator of the street car saw, or in the exercise of ordinary care could have seen, the plaintiff in such position and that he was oblivious of his peril; and if you further find and believe from the evidence that thereafter, and by the exercise of ordinary care in the use of the means and instrumentalities at hand, and with reasonable safety to said operator, the said streetcar, all the passengers on the same, and all other persons and vehicles in the vicinity, if any, the said operator could have avoided striking plaintiff with the said streetcar by stopping the same or by sounding a timely warning of the approach of the same; and if you further find and believe from the evidence that the said operator failed to exercise ordinary care in either or both of the particulars aforesaid after he saw, or in the exercise of ordinary care could have seen, the plaintiff in such position and that he was oblivious of his peril; and if you further find and believe from the evidence that as a direct result of such failure the said streetcar struck the plaintiff; and if you further find and believe from the evidence that the plaintiff was injured; and if you further find and believe from the evidence that his injuries were directly due to his being struck by the said streetcar; then you are instructed that your verdict should be for the plaintiff and against the defendant.'
In its argument and brief filed in this court the respondent relies solely upon our recent case of Cable v. Chicago, B. & Q. Ry. Co., 236 S.W.2d 328, to sustain the action of the trial court in the granting of a new trial. In its brief respondent says that under the Cable case the trial court in a humanitarian case must submit (1) specific facts so as to allow the jury to reach a conclusion as to when, where and how the plaintiff's position of peril arose, and also (2) that a humanitarian instruction which by its language permits a finding of approaching imminent peril is prejudicially erroneous. This is not a correct statement of the holding in the Cable case. If it were, the Cable case would be overruling our previous cases without directly stating that they were overruled, particularly our case of Perkins v. Terminal R. Ass'n, 340 Mo. 868, 102 S.W.2d 915.
In the Perkins case, we said, 102 S.W.2d loc. cit. 923: ...
To continue reading
Request your trial
-
Welch v. McNeely
... ... Louis, Paul E. Fitzsimmons, St. Louis, for respondent ... St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 707(2); Vietmeier v. Voss, Mo., ... so long as a plaintiff is approaching a position of imminent peril, Newman v. St. Louis Public Service Co., Mo., 244 S.W.2d 45, 48(2, 3); Johnson v ... ...
-
Hancock v. Crouch
...plaintiff'. However, it is axiomatic that the instructions must be read together and considered as a whole [Newman v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 45, 49(4); Higgins v. Terminal Ry. Ass'n of St. Louis, 362 Mo. 264, 241 S.W.2d 380, 387(20)]; and, upon examination of the ......
-
Faught v. Washam
... ... Riding with defendant, returning from St. Louis to his home in Marceline, Missouri, were his wife, her mother, and two ... Kansas City Public" Service Co., 239 Mo.App. 228, 234, 186 S.W.2d 524, 528 ... \xC2" ... Newman v. St. Louis Public Service Co., Mo., 244 S.W.2d 45, 49(4, 5). Being also ... ...
-
Moore v. Glasgow
...confusing and prejudicial instructions [Newman v. St. Louis Public Service Co., Mo.App., 238 S.W.2d 43, 45(1), affirmed Mo. (banc), 244 S.W.2d 45, 46(1)] or for the admission of incompetent, irrelevant, immaterial, improper and prejudicial evidence [Goodman v. Allen Cab Co., 360 Mo. 1094, 1......