Pitha v. St. Louis Public Service Co.

• Decision Date: 13 December 1954
• Docket Number: No. 43636,No. 1,43636,1
• Citation: 273 S.W.2d 176
• Parties: Helen PITHA, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 176

273 S.W.2d 176

Helen PITHA, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 43636.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1954.

Lloyd E. Boas and Lester Stephens, St. Louis, for appellant.

Moser, Marsalek, Carpenter, Cleary & Carter and Charles F. Hamilton, St. Louis, for respondent, Leland Jones, St. Louis, of counsel.

DALTON, Presiding Judge.

Action for $10,000 damages for personal injuries alleged to have been sustained on account of defendant's negligence. Verdict and judgment were for defendant, but the trial court set the same aside and ordered a new trial on account of errors assigned in Sections 7, 8, 12, and 20 of plaintiff's motion for a new trial. Defendant has appealed and contends that the court erred in granting the new trial.

About 8 p. m., January 2, 1952, plaintiff was driving a 1948 Chevrolet sedan eastwardly on Gravois Avenue in the City of St. Louis. A fine mist and rain was falling, the streets were wet, the automobile was in perfect condition and the windshield wipers were operating. Plaintiff was driving approximately 20 feet behind an eastbound bus. Both vehicles were traveling about the same speed, 20 to 25 miles per hour, nearer 25, as they proceeded down a slight decline. The bus was being operated so close to the center line of Gravois Avenue that plaintiff would not attempt to pass and plaintiff's automobile was slightly closer to the center line of the street. There was no traffic to plaintiff's right or left, but quite a bit of westbound traffic on the north side of the street. Defendant's bus driver had passed up a 'long bus stop sign' at the intersection of Alma and Gravois, that is, he 'didn't put in for it or anything,' when one bus length east of the bus stop zone 'all of a sudden' plaintiff saw the stoplights on the rear of the bus flash and the bus made a sudden distinct turn to the right and stopped. After the stoplights flashed, plaintiff 'instantly applied' her brakes and swerved to the left but could not pass the bus to the right of the center line or 'without crashing into westbound traffic.' Her automobile struck the rear of the bus after the bus had come to a complete stop. The automobile was damaged and plaintiff was thrown against the steering wheel and sustained personal injuries.

Plaintiff did not know whether her application of the brakes decreased the speed of her automobile prior to the crash, but the wheels did not slide. She did not know what time or distance would have been required to stop her automobile at the speed she was traveling, or under the existing conditions, but at a speed of approximately 25 miles per hour, she could have stopped in 20 feet, 'if he hadn't stopped so suddenly.' She said 'the light went on and the brake; his brakes squeaked and he stopped * * As soon as I saw his light go on he stopped the bus,' he stopped it 'suddenly.' She further said that, after she saw the lights flash, the bus moved 'possibly a tiny bit, but not much.' Other testimony indicated that the bus stopped almost instantly after the stoplights flashed. The bus was stopped with its left rear corner within 5 or 6 feet of the center line of the street, and so close that it would have been impossible for an automobile to drive to the left of the bus without crossing the center line. It will not be necessary to review other evidence, or that of defendant.

The petition contained numerous assignments of negligence but the cause was submitted upon the alleged negligence of the operator of the bus 'in suddenly swerving and in bringing said bus to a sudden stop, as aforesaid, under the circumstances then and there existing'; and upon alleged negligence in stopping a vehicle in the street and not near the right-hand curb in violation of an ordinance of the City of St. Louis. On the issues presented here we need not determine whether the first submission of negligence was adequate absent any allegation or proof or required finding that no reasonable, adequate and timely warning was given. The instruction submitting the last assignment of negligence required a finding, in part, as follows: '* * * that the operator of said bus swerved it two or three feet toward the right and stopped it for the purpose of allowing passengers to board, and not for any emergency or to allow another vehicle or pedestrian to cross the path of said bus; that when stopped, as aforesaid, said bus was angled across and in the two eastbound traffic lanes closest to the center of said street and was in the path of the automobile driven by the plaintiff; that when stopped, as aforesaid, no part of said bus was in the traffic lane closest to the south curb of said street, and the bus was not near the right-hand curb of said street; that when stopped, as aforesaid, it was likely that said bus would be collided with by the automobile being operated by plaintiff, and that said automobile did collide with said bus; and that the operator of said bus knew, or in the exercise of the highest degree of care could have known, of the presence of the automobile being operated eastwardly and to his rear and that by stopping said bus in the position aforesaid it was likely that said automobile would be caused to collide with said bus; then you are instructed that in stopping said bus, as aforesaid, the operator of said bus was negligent; * * *.'

The petition further contained an assignment of negligence based upon an alleged failure of the operator of the bus, when slowing down and stopping, to 'extend his arm in a horizontal position,' as required by Section 25(e), Chapter 69, Revised Code of St. Louis, 1948. The petition also contained an assignment, 'That defendant, by and through its agent in charge of said vehicle, negligently and carelessly, suddenly and without warning, checked the speed of said bus and brought same to a stop in the traveled portion of the street when defendant knew, or in the exercise of the highest degree of care should have known, that by so doing defendant would block plaintiff's path and cause the automobile plaintiff was operating to collide with said bus.' (Italics ours).

In the course of the trial, after the evidence hereinbefore reviewed, was in the record, plaintiff was asked: 'A. At any time, Mrs. Pitha, prior to the accident in question did the bus operator extend his hand out of the left window of the bus?' An objection (that the issue was entirely out of the case and immaterial in view of plaintiff's testimony concerning the operation of stoplights) was sustained. The question was never answered. No offer of proof was made and the court was not advised as to what plaintiff's testimony would have been. It appeared from subparagraph (h) of said section 25 of said Code, supra, that if the vehicle was equipped with a mechanical or electrical signalling device the arm signal was not required, and the court held that the provision as to arm signals was inapplicable under the facts in evidence. Thereafter, when plaintiff offered section 25(e) of Chapter 69 Revised Code of the City of St. Louis, 1948, the court sustained defendant's objection thereto as inapplicable. Compare Section 304.020, Subsections (8) and (11) RSMo 1949, V.A.M.S.

The trial court's action in sustaining the objection to the said question is the matter referred to in section 7 and 8 of plaintiff's motion for a new trial, wherein it is contended 'that the court erred in sustaining defendant's objection to the question put by the attorney for plaintiff to plaintiff asking whether or not she could have seen an arm signal made by the operator of the involved hus indicating his intention to stop'; and that 'the court erred in sustaining defendant's objection to plaintiff's offer of proof to the effect that the operator of said bus did not make a hand or arm signal before bringing said bus to a sudden and abrupt halt in that portion of the street reserved for moving traffic.' (Italics ours).

Respondent now concedes that no offer of proof was made on behalf of plaintiff, but nevertheless contends that it was reversible error for the trial court 'to exclude evidence of the bus operator's failure to make a hand signal of his intention to stop'; that by denying plaintiff the right to show that the bus operator did not make an arm signal, the trial court made it impossible for her to prove that 'no timely warning was made' (Italics ours); that she should have been 'permitted to prove a lack of a timely warning as within the purview of 'without warning' which is the language of the petition'; and that she did not waive error by not offering an instruction based upon 'improperly excluded evidence.' (Italics ours). Respondent further says that the two lights on the rear of...