Sheerin v. St. Louis Public Service Co.

• Decision Date: 11 March 1957
• Docket Number: No. 1,No. 45110,45110,1
• Parties: John E. SHEERIN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 483

300 S.W.2d 483

John E. SHEERIN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 45110.

Supreme Court of Missouri, Division No. 1.

March 11, 1957.

Motion for Rehearing of to Transfer to Court en Banc Denied

April 8, 1957.

John J. Kelly, Jr., Koenig, Dietz & Mason, William L. Mason, Jr., St. Louis, for appellant.

Leo C. DeVoto, Jr., St. Louis, Lloyd E. Boas, St. Louis, of counsel, for respondent.

HOLLINGSWORTH, Presiding Judge.

As John E. Sheerin, plaintiff herein, walked southward along the east sidewalk on Kingshighway Boulevard in the City of St. Louis and was crossing over defendant's east-west line of streetcar tracks at the point where they intersect Kingshighway, he was struck and injured by an eastbound streetcar as he was in the act of stepping clear of the track upon which the car was proceeding. This action to recover the sum of $15,000 for such injuries ensued. The cause was submitted to the jury upon the sole issue of defendant's humanitarian negligence in failing to so slacken the speed of its streetcar as to permit plaintiff to clear the track after defendant's operator saw or in the exercise of ordinary care could have seen plaintiff in imminent peril of being struck. The jury returned a verdict for defendant. Plaintiff has appealed and, in this court, urges but one point, namely: error in the giving of a sole cause instruction (No. 5) in behalf of defendant. Defendant contends, first, that the instruction was proper; second, that if it be erroneous, the error was 'waived' by plaintiff's requested (and given) Instruction No. 6; and, third that in any event plaintiff failed to make a submissible case. Of course, if defendant's third contention is true, we need consider the case no further. Consequently, we give that aspect of the case our first attention and, in so doing, review the evidence from the viewpoint most favorable to plaintiff.

Kingshighway, extending north and south, is approximately 100 feet in width between the building lines on each of its sides. There is, however, a concrete sidewalk approximately 20 feet in width on each side thereof, reducing its width to 60 feet from curb to cub. At the point here involved, it is intersected by defendant's right-of-way called the 'Hodiamont Line', upon which are situate (on the north) defendant's westbound streetcar track and (on the south) defendant's eastbound bound streetcar track. The distance between the north rail of the westbound track and the south rail of the eastbound track is approximately 16 feet, made up of the distance of 4.845 feet between the rails of each track and the distance of 6.10 feet between the tracks. A building line, as it extends eastward from the northeast corner of the intersection of Kingshighway and defendant's right-of-way, is situate approximately 21 feet north of the north track. A concrete sidewalk extends eastward from Kingshighway along the area between said building line and defendant's westbound (north) track.

The casualty occurred at about 1:30-1:50 a. m., on January 10, 1953. Plaintiff, a carpenter, was then 35 years of age. The weather was fair, the street dry and the intersection was brightly lighted. Plaintiff (who throughout the evening had consumed a considerable quantity of intoxicating beverage) and Mrs. Lola Tennison left a tavern located about four doors east of Kingshighway, walked westward to Kingshighway along the sidewalk immediately north of defendant's westbound track, thence southward (with plaintiff on the outside along the center of the 20-foot wide sidewalk on the east side of Kingshighway until they reached a point two feet north of the north rail of the westbound track. At this point, they stopped, plaintiff looked to the east, saw nothing, looked to the west and saw defendant's eastbound streetcar approach the west side of Kingshighway and come to a stop near the west edge of the sidewalk on that side of the street, approximately 90 feet west of plaintiff, and saw that a passenger was either entering or leaving the car. Plaintiff and his companion, without again looking to the right and at all times wholly oblivious of the approach of the car, with the purpose of crossing the tracks, continued southward at a 'normal gait' along the center of the sidewalk until they were about to step clear of the eastbound (south) track along which the streetcar was proceeding, at which time plaintiff saw it practically upon him.

Plaintiff called to the witness stand defendant's operator who testified: The streetcar operated by him on the occasion in question weighed in excess of 36,000 pounds and was functioning perfectly. He stopped it with its front end 3 to 5 feet east of the west edge of the west sidewalk line of Kingshighway. After discharging one passenger and receiving another, he accelerated slowly until he reached a point 5 feet west of the center line of Kingshighway, at which time he ceased acceleration and thereafter 'coasted'. His speed never at any time exceeded 10 to 15 miles per hour as his car crossed Kingshighway. Just after passing the center line of Kingshighway, witness saw plaintiff for the first time. He was then standing in the center of the sidewalk on the east side of Kingshighway at a point between the rails of the westbound (north) track. At that moment plaintiff's back was toward the witness and he appeared to be talking to another person. Plaintiff suddenly started to 'hustle' that person (Mrs. Tennison) across the street and into the car's path. Plaintiff's back was to the witness and plaintiff was using his arm and shoulder in 'hustling' Mrs. Tennison 'across the track'. He was 'swaggering speedily' and never at any time looked toward the streetcar after starting across the tracks. The witness did not start to apply his brakes until his car was three-fourths of the way across Kingshighway (15 feet west of the sidewalk and 25 feet west of the center line thereof, along which plaintiff and Mrs. Tennison were proceeding). Both plaintiff and Mrs. Tennison were actually south of the eastbound track when the collision occurred. Plaintiff was struck by a protrusion of the 'front door division', which extended from 3/4 to 1 1/2 inches beyond the south side of the car. Had plaintiff cleared that protrusion, he would not have been struck. When witness was 3/4 of the distance across Kingshighway (25 feet west of the path of plaintiff's travel), he applied all of the braking power at his command and succeeded in stopping the streetcar with its front end about 15 feet east of the point of collision. By the utmost use of his brakes he could stop the car when going at 10 miles per hour within about 35 feet and when going at 15 miles per hour within about 50 feet. In this instance, he actually stopped the car within 40 feet.

In support of its contention that no submissible case was made, defendant says that the evidence most favorable to plaintiff shows that plaintiff walked southward a distance of 17.84 feet (admittedly substantially correct) while the streetcar moved eastward a distance of 90 feet (admittedly substantially correct); that plaintiff's walking speed was 2.9 to 4.44 feet per second (citing Lang v. St. Louis-San Francisco Ry. Co., 364 Mo. 1147, 273 S.W.2d 270, 274); that the slowest of these speeds (2.9 feet per second) would require 6.1 seconds for plaintiff to walk the 17.84 feet; that in order for the streetcar to have struck plaintiff, it necessarily would have accelerated its speed from its stopped position at the rate of 4.8 feet per second, so that it would have been travelling 19.96 miles per hour when it reached the point of collision; and that, therefore, the collision could not have happened in the manner detailed by plaintiff.

The argument is, perhaps, theoretically correct but not entirely persuasive. The estimates of the speed at which plaintiff walked and the streetcar was running are subject to wide margins of error and are not conclusive. On the other hand, there is testimony and undisputed facts in the case which, in our opinion, make a submissible case of humanitarian negligence upon the grounds submitted. Under the evidence most favorable to plaintiff, the jury could have found he was oblivious of the approach of the streetcar from the time he saw it stop 90 feet west of him and was therefore in a position of imminent peril from the time he began his entry upon and across the tracks and that, in the exercise of ordinary care, defendant's operator then and there could have seen and observed plaintiff's total lack of attention to the streetcar and realized his peril. The operator admitted that from the time he first saw plaintiff (the front of his car having 'just passed' the center of Kingshighway) plaintiff's back was toward the car and plaintiff never thereafter looked toward the car, yet he made no application of his brakes until the car was three-fourths of the way across Kingshighway and 25 feet from plaintiff's path of travel. Now, plaintiff came within 1 1/2 inches of clearing the overhang of the car. It is therefore obvious that had defendant's operator, in the exercise of ordinary care, seen plaintiff a moment sooner, as the jury could have found he should, and observed plaintiff's peril, as the jury could have found he should, and applied his brakes a moment sooner, as the jury could have found he should, thereby as a matter of course slowing the car a moment sooner, the collision would not have occurred. See Newman v. St. Louis Public Service Co., Mo.App., 238 S.W.2d 43, 46; Newman v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 45, 46. And the mere fact that the testimony of defendant's operator to the effect that plaintiff was stopped between the rails of the westbound track instead of 2 feet north thereof, as testified by plaintiff, and that plaintiff 'swaggered' hurriedly across the tracks instead of walking normally across them, as plaintiff testified, is not...