Schilling v. Bi-State Development Agency

Decision Date18 April 1967
Docket NumberBI-STATE,No. 32433,32433
Citation414 S.W.2d 818
PartiesMildred SCHILLING, Plaintiff-Respondent, v.DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.
CourtMissouri Court of Appeals

Gerald D. Morris, St. Louis, for defendant-appellant.

Hullverson, Richardson & Hullverson, Orville Richardson, Thomas J. Motherway, St. Louis, for plaintiff-respondent.

THEODORE McMILLIAN, Special Judge.

This is an action for the recovery of damages for personal injuries sustained by the plaintiff, a pedestrian, when she was struck while attempting to cross an intersection by one of defendant's motor buses. Plaintiff's major complaint was a fractured right hip. Damages are not contested; therefore, our inquiry will be limited to the issues of liability. A jury verdict was returned in the sum of $10,500; thereafter, defendant's motion for judgment in accordance with its motion for a directed verdict; or, in the alternative, for a new trial was denied. Defendant appealed. The parties will be referred to as they were in the trial court.

Defendant complains of errors for the following reasons: (A) no substantial evidence to support a finding that its bus driver failed to keep a careful lookout, or (B) that he violated the traffic signal; (C) that plaintiff was contributorily negligent as a matter of law, thus precluding any primary negligence submission; (D) no evidence of causation between failure to keep a lookout and the casualty; and finally, (E) there was no substantial evidence that at the moment defendant's operator knew, or could have known of plaintiff's position of immediate danger, defendant's operator still had enough time, in the exercise of the highest degree of care, to have avoided injury to the plaintiff by either stopping or slackening the speed of the bus. Needless to say, each contention requires a review of the evidence.

In reviewing the evidence, we shall adopt, as we must, that evidence, including any produced by defendant, most favorable to plaintiff. Also, we invoke all reasonable inferences supporting her case; this under familiar rules of appellate review. Loyd v. Moore, Mo.App., 390 S.W.2d 951, 954(1). Moreover, we recognize the rule that facts essential to recovery may be proved by circumstantial evidence and inferences drawn therefrom. Hartz v. Heimos, Mo., 352 S.W.2d 596, 601(3).

For our purposes, as did the parties, we shall assume that the two streets, Gravois and Bates, intersect at right angles, and that Gravois is a north-south street, while Bates is an east-west one. This intersection was controlled by electric traffic signals; one, on the sothwest corner facing southbound traffic; the other, on the northeast corner facing eastbound Bates' Street traffic, as well as for pedestrians crossing Gravois from the west to the east. The evidence showed, on the day in question, that for southbound vehicular traffic on Gravois, there was a broad, painted, white-stop line, approximately 35.5 feet from the north curbline of Bates. The evidence was somewhat conflicting as to whether or not, on the day in question, there were painted crosswalks. Evidence also established that the traffic signal for southbound travel was green for 59 seconds, amber for 3 seconds, and red for 38 seconds. Other evidence showed that from the center line of Gravois, separating north and southbound traffic, the next line to the west (broken line marking a lane) was 9.8 feet, and from that lane line to the west curb-line of Gravois was 19 feet. Also, northbound Gravois bends to the west less than a block north of Bates.

On August 9, 1963, plaintiff, Miss Mildred Schilling, age 51, was walking southwardly on the west side of Gravois, appproaching the north curbline of Bates. It was her intention to continue south across Bates, but as she reached the corner, the light on the southwest corner of Bates and Gravois turned from green to amber. She paused momentarily, looked to the east, and saw that the light on the northeast corner of the intersection was green. She then looked to her left (north), saw nothing close to the intersection, and then stepped down from the curb to cross Gravois. She said, 'Traffic * * * seemed in order. * * * It seemed all right to go. * * * I didn't see anything, why I shouldn't cross the street.' As she reached the second lane, plaintiff turned her head to the right (south) to look for eastbound traffic on Bates which might turn left to go north on Gravois. According to plaintiff, she was walking normally, and had taken 6 or 7 steps from the curb, and had reached the second lane when the next thing she remembered was that she was lying in the street. She neither saw nor heard the bus before she was struck. However, thereafter, she remembered lying several feet in front of the bus and saw a man step down from it.

In this posture of the case, plaintiff, for limited purposes, called defendant's operator as a witness. He testified, on the day in question, that he was the driver of the bus that had hit plaintiff. Defendant's counsel, then by cross-examination, developed the following: that the streets were still somewhat wet from an earlier rain that he was driving 3 or 4 feet from the curb in the curb lane; that when he was 100 feet back from Bates, his speed was 20 miles per hour; that when he was 50 feet back, the light changed to amber; that when he applied the brakes, he removed his foot from the gas to the brake; that the bus skidded; that he saw plaintiff while she was standing on the curb; that when the light facing him went to amber, plaintiff stepped from the curb adn began to cross Gravois; that when plaintiff stepped from the curb, the bus was 25 to 30 feet from her; that the bus speed when plaintiff stepped from the curb was 8 to 9 miles per hour, and it was sliding; that he tried to steer the bus away from her (to his left); that skid marks were from 30 to 40 feet long; that the bus was 40--45 feet long and about 8 feet wide; that plaintiff was struck by the right front corner of the bus as it was swerving (3 or 4 feet) and was still skidding; that when the bus stopped, the right corner was about 8 feet out from the right hand (west) curb and so was plaintiff; and that at contact, the bus was moving not over 3 miles per hour, and it did not move after contact.

On redirect, plaintiff developed that the intersection was level; that the back end of the bus stopped near a heavy, white line where the bus driver knew the front end of the bus should have stopped for the red light; that when plaintiff stepped from the curb, he didn't see her look toward the bus; and that the bus at no time went into Bates.

Plaintiff also into evidence two ordinances of the City of St. Louis: Ordinance No. 47360 which established electric signals for the Gravois and Bates intersection, and Ordinance No. 46687, Section 40, which provides that drivers and pedestrians facing green lights may proceed; and that drivers and pedestrians facing red lights shall stop. Further, it allowed pedestrians to proceed across in the crosswalk when facing a green light; and, also, required drivers, upon the display of an amber signal, to take heed that a red signal would be promptly exhibited thereafter, and such driver shall not thereafter enter the intersection. All persons were required to obey all official traffic control signals.

In support of Point (A); i.e., there was no substantial evidence adduced to support a finding that defendant's operator failed to keep a lookout, defendant argues that since plaintiff only knowns she was walking across the street, and had taken 6 or 7 steps, and remembers no more, of necessity, plaintiff must rely upon her only other factual witness, defendant's operator. This being the case, defendant contends that since the operator said he kept a careful lookout; i.e., saw the light change, saw plaintiff step from the curb, and observed her up to the moment of impact, and since there is no evidence to the contrary, plaintiff is thereby precluded from a recovery on the lookout theory. Moreover, defendant further argues, assuming the above hypothesis to be valid, that thereafter he could not have avoided the casualty; and, therefore, any failure to see plaintiff was not an efficient cause of the accident. Citing in support therefor, Chandler v. Mueller, Mo., 377 S.W.2d 288; Levin v. Caldwell, Mo., 285 S.W.2d 655(3); and Zalle v. Underwood, Mo., 372 S.W.2d 98. None would appear to be apropos. In Chandler, the defendant appellant had no direct proof of Chandler's failure to maintain a lookout, and was forced to rely upon Chandler's testimony that Chandler was not keeping a lookout. In Levin, plaintiff sued both drivers in a two-car collision and called both as his witnesses without reservation. He was thus held to be bound by testimony offered by him since he had no other evidence, direct or circumstantial, that defendant whom he charged with failure to keep a lookout could have seen the other automobile sooner than he did. In Zalle, both drivers in a two-car collision were oblivious to one another's approach, and there was no evidence of their respective positions sufficient for the jury to determine whether any failure to keep a lookout caused the collision.

The fallacy of defendant's argument is that defendant assumes that their operator became plaintiff's witness with respect to all his testimony. Here, plaintiff, not knowing herself what had struck her, and the fact of which was denied by defendant, was forced to call the bus driver to prove an essential element of her case; namely, that defendant's bus struck her. So, plaintiff, pursuant to RSMo 1959, Section 491.030, V.A.M.S., called defendant's operator to testify in her case. We rule, from the evidence presented, that plaintiff is only bound by that part of the operator's testimony which she offered and thus vouched for as true. As a corollary, what defendant's operator may have said upon cross-examination by defendant...

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8 cases
  • Carr v. Grimes
    • United States
    • Missouri Court of Appeals
    • March 17, 1993
    ...be tempered by judicial discretion, the Court not being bound to take judicial notice of matters of fact," Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 826 (Mo.App.1967), and "[i]f there is doubt about the notoriety of a fact, judicial recognition of it must be declined." Gordo......
  • State v. Kelly
    • United States
    • Missouri Supreme Court
    • July 12, 1976
    ...v. Niehaus, 236 Mo. 8, 139 S.W. 450. . . . 'This power is to be exercised by courts with caution. . . . '' Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 826 (Mo.App.1967). Defendant has cited cases such as State v. Graham, 322 S.W.2d 188 (Mo.App.1959); State v. Gantt, 504 S.W.2d......
  • Anderson v. Knobbe, 57518
    • United States
    • Missouri Supreme Court
    • January 14, 1974
    ... ... Quigg, 406 S.W.2d 298, 300--301(2, 3) (Mo.App.1966); Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 825(13, 17) (Mo.App.1967); ... ...
  • State v. Umfleet, 40097
    • United States
    • Missouri Court of Appeals
    • August 21, 1979
    ...is a matter of common knowledge. This court is not required to take judicial notice of factual matters. Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 826 (Mo.App.1967). We are not prepared to do so here. Point ten is ruled against Finding no reversible error in this record, the ......
  • Request a trial to view additional results
1 books & journal articles
  • §201 General Rule
    • United States
    • Evidence Restated Deskbook Chapter 2 Judicial Notice
    • Invalid date
    ...or not being dependent on the nature of the subject, the issue involved and the justice of the case. Schilling v. Bi-State Dev. Agency, 414 S.W.2d 818, 826 (Mo. App. E.D. 1967); see also City of St. Louis v. Niehaus, 139 S.W. 450, 452 (Mo. banc 1911); Carr v. Grimes, 852 S.W.2d 345, 351 (Mo......

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