Robb v. St. Louis Public Service Co.

• Decision Date: 06 March 1944
• Docket Number: 38763
• Parties: Louise Robb, Appellant, v. St. Louis Public Service Company, a Corporation
• Court: Missouri Supreme Court

178 S.W.2d 443

352 Mo. 566

Louise Robb, Appellant, v. St. Louis Public Service Company, a Corporation

No. 38763

Supreme Court of Missouri

March 6, 1944

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed.

Morris A. Shenker and Casper S. Yost for appellant.

(1) Defendant's Instruction 2 is misleading and prejudicial to plaintiff and the giving thereof constitutes reversible error. Said instruction authorized a verdict for defendant if the driver operated his automobile so as to pass the streetcar and thereafter caused his automobile to be driven in front of and in close and dangerous proximity to the streetcar and thereafter brought his automobile to a sudden stop without any previous indication of his intention so to do, when there was no evidence to support such facts. Guldner v. International Shoe Co., 293 S.W. 428; Kuhlman v. Water, Light & T. Co., 307 Mo. 607; Holden v. Mo. Pac. Ry. Co., 177 Mo. 456; Seago v. N.Y. Cent. R. Co., 155 S.W.2d 126; Dixon v Construction Co., 318 Mo. 50; Hough v. Automobile Co., 146 Mo.App. 58; Shaw v. Fulkerson, 339 Mo. 310; Althage v. Peoples Motorbus Co., 320 Mo. 598. (2) The facts hypothesized in the instruction are contrary to the evidence and there is no evidence in the case upon which a sole cause instruction could be based. Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090; Stanich v. Western Union Tel. Co., 153 S.W.2d 54; Fassi v. Schuler, 159 S.W.2d 774. (3) Defendant's Instruction 4 is misleading and prejudicial to plaintiff and the giving thereof constitutes reversible error, because it does not require the motorman of the streetcar to do anything until the automobile was driven on the track and in close and dangerous proximity to the moving streetcar, thereby unduly limiting the position of imminent peril and defendant's duty under the law. Shumate v. Wells, 9 S.W.2d 632; Causey v. Wittig, 321 Mo. 358; Gray v. Columbia Terminal, 331 Mo. 73, 52 S.W.2d 809; McCall v. Thompson, 155 S.W.2d 161.

B. G. Carpenter and Moser, Marsalek & Dearing for respondent.

(1) The defendant was entitled to have submitted to the jury every theory of fact in defendant's favor which the evidence tended to support. King v. Wabash R. Co., 211 Mo. 1, 109 S.W. 671; Wilson v. Thompson, 345 Mo. 319, 133 S.W.2d 331. (2) In determining whether the evidence is sufficient to support any fact or theory submitted by defendant's instructions, the evidence should be viewed in its light most favorable to the defendant, granting the defendant the benefit of all favorable inferences reasonably arising from the evidence. Moffett Bros. v. Kent, 5 S.W.2d 395; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13. (3) It was the province of the jury to solve any apparent discrepancy in Baider's testimony, and to determine what part of his testimony was to be accepted and what part should be rejected. Story v. Peoples Motorbus Co., 327 Mo. 719, 37 S.W.2d 898; Gould v. Chicago, B. & Q.R. Co., 315 Mo. 713, 290 S.W. 135; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161. (4) The defendant had the right to base the instruction, in part, upon the evidence given by plaintiff's witness Baider without being bound by all of the evidence of said witness. Gould v. Chicago, B. & Q.R. Co., supra. (5) Plaintiff's contention that there was no evidence that the automobile was brought to a stop suddenly and without warning, even if sustained by the record, would not avail plaintiff under the facts of this case. Herrington v. Hoey, 345 Mo. 1108, 139 S.W.2d 477; Brinkley v. United Biscuit Co., 349 Mo. 1227, 164 S.W.2d 325; Wilday v. Missouri, K. & T.R. Co., 347 Mo. 275, 147 S.W.2d 431; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. (6) The evidence warranted submission of the defense of sole cause. The only negligence on the motorman's part, submitted by plaintiff, was his alleged failure to stop the streetcar after the automobile was driven onto the track. Defendant's evidence showing that Baider drove his automobile onto the track and brought it to a stop in close and dangerous proximity to the streetcar, and that it was impossible for the motorman to stop the car within the distance traveled by the automobile from the place it was turned onto the track to the point where it stopped, supports a finding that Baider's conduct was the sole cause of the collision. Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Schroeder v. Rawlings, 348 Mo. 824, 155 S.W.2d 189; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. (7) Plaintiff abandoned all allegations of negligence save the allegation submitted by her instruction No. 1. She cannot in this court rely upon any act of defendant, as negligence, other than the one submitted in her instruction. Nahorsky v. Electric Term. R. Co., 310 Mo. 227, 274 S.W. 1025; Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152. (8) Defendant's Instruction 4 was correct as applied to the facts of this case. Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466. (9) Where the danger zone commences, under the humanitarian rule, depends upon the facts and circumstances of the particular case. Under some circumstances it might commence a considerable distance from defendant's path; under others, it might be very close to or in the path of the approaching vehicle. State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Kloeckner v. St. Louis Pub. Serv. Co., 331 Mo. 396, 53 S.W.2d 1043. (10) Plaintiff is not in a position, in this court, to complain of defendant's Instruction 4, on the theory that it unduly restricted the danger zone, and prevented the jury from considering whether the motorman could have sooner seen the automobile as it turned toward the track, and by acting then could have averted the collision. Said theory is in conflict with the theory followed by plaintiff in the trial court. Nahorsky v. Electric Term. R. Co., 310 Mo. 227, 274 S.W. 1025; Sweet v. Bunn, 195 Mo.App. 500, 193 S.W. 897; Britt v. Crebo, 199 S.W. 154; Smith v. Forrester-Nace Box Co., 193 Mo. 715, 92 S.W. 394; Kincaid v. Birt, 29 S.W.2d 97; Stoll v. First Natl. Bank, 345 Mo. 582, 134 S.W.2d 97. (11) Plaintiff had no right to recover by rejecting her evidence and that of her witnesses, that the automobile was brought to a stop on the track when the car was several hundred feet away, and remained standing for a number of seconds before the collision, and in lieu thereof to recover under the testimony of the motorman, which was in direct conflict therewith. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600.

OPINION

Clark, P.J.

Appellant (plaintiff) sued to recover $ 30,000.00 for injuries sustained in a collision between an automobile in which she was riding and a streetcar operated by respondent. The verdict and judgment were for respondent (defendant). On appeal to this court appellant assigns as error the action of the trial court in giving instructions numbered two and four at the request of respondent.

The collision occurred on Enright Avenue in St. Louis, a short distance west of Spring Avenue and near a street referred to as a "cutoff", extending southeast from Enright. The streetcar of respondent, while being operated west on Enright, struck the rear of the automobile in which appellant was riding as a passenger. The case was submitted to the jury solely on the humanitarian doctrine by appellant's instruction which, in substance, told the jury that they should return a verdict for appellant if they found that respondent's operator failed to exercise reasonable care to stop the streetcar after he saw, or should have seen, etc., the automobile stopped on the tracks in a position of imminent peril etc.

Respondent's instruction number two was to the effect that, while there was no charge of contributory negligence and while the negligence, if any, of the driver of the automobile could not be imputed to appellant, yet if the jury found that the driver of the automobile operated it so as to pass the westbound streetcar and to be driven upon the tracks in front of and in close and dangerous proximity to the streetcar, and brought the automobile to a sudden stop without any previous indication of an intention to do so, and in doing so the driver of the automobile failed to exercise the highest degree of care and that such failure, if any, was the sole cause of whatever injuries appellant received and were not due to any negligence of the operator of the streetcar as hypothesized in other instructions, their verdict must be for respondent.

Appellant contends that there was no evidence to support the facts hypothesized in the instruction that the driver of the automobile so operated it as to pass and drive in front of and in close and dangerous proximity to the streetcar, and to bring the automobile to a sudden stop without any previous indication of an intention to do so. Further, that there was no evidence upon which to base a sole cause instruction.

There can be no controversy that an instruction must be based upon evidence and it is unnecessary to review the cases cited by appellant in support of that abstract principle. However, a party is entitled to submit instructions based upon evidence which favors his theory of the case, notwithstanding that such evidence may conflict with evidence offered by the opposing party. [Wilson v. Thompson, 345 Mo. 319, 133 S.W.2d 331.] In this case the theories of the opposing parties are in sharp conflict as disclosed by their instructions heretofore mentioned.

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