Silverstein v. St. Louis Public Service Co., 45336

• Decision Date: 12 November 1956
• Docket Number: No. 2,No. 45336,45336,2
• Parties: Rose SILVERSTEIN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 37

295 S.W.2d 37

Rose SILVERSTEIN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 45336.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1956.

Lester F. Stephens, St. Louis, for appellant. Lloyd E. Boas, St. Louis, of counsel.

Hullverson & Richardson, St. Louis, for respondent.

BARRETT, Commissioner.

Mr. Henry Silverstein, sixty-four years old, and his wife, Rose, resided at 6165 Delmar Boulevard. On October 12, 1954, about eleven o'clock in the morning, Mr. Silverstein attempted to walk across Delmar, in the middle of the block between Skinker Boulevard and Rosedale Avenue. Delmar is about seventy-six feet wide and there are eastbound and westbound streetcar tracks in the middle of the street. When Mr. Silverstein reached the center of the westbound tracks he was struck by a westbound streetcar, 'knocked down and fell under the front end of the streetcar' and was rolled or dragged thirty or forty feet. In this action for his death 'from any injury resulting or occasioned by the negligence', V.A.M.S. Sec. 537.070, of the St. Louis Public Service Company in the operation of the streetcar Mrs. Silverstein has recovered a judgment of $15,000. Upon this appeal the St. Louis Public Service Company contends that the trial court should have sustained its motions for a directed verdict and, consequently, that the court erred in giving the jury instruction number one for the reasons, one, that the evidence did not warrant a submission of the appellant's negligence in the respects submitted in the instruction and, two, there was no evidence to support a finding that Mr. Silverstein died 'as a direct result of injuries received in the collision.'

Under the statute, V.A.M.S. Sec. 537.070, the essence of the widow's cause of action is the fact that her husband's death was proximately caused by the defendant's negligence and, of course, the burden is upon her not only to show negligence but to show by direct or circumstantial evidence that her husband died, as the appellant says, 'as a direct result of injuries received in the collision.' 16 Am.Jur., Sec. 307, p. 209; Herke v. St. Louis & S. F. R. Co., 141 Mo.App. 613, 125 S.W. 822. In her petition Mrs. Silverstein alleged that her husband died on October 12, 1954 'as a direct result of injuries sustained by him.' As to the specific allegation the appellant answered that it was without sufficient knowledge or information to form a belief as to the truth of the allegations respecting the cause of Mr. Silverstein's death. Incredible as it may seem, there was no direct testimony, either lay or expert, that Mr. Silverstein died as a result of being struck by the streetcar. However, Mrs. Silverstein testified that she was the widow of Henry Silverstein 'who was killed on the 12th of October, 1954.' She testified, without objection, to the expense of his funeral which she had paid. The defendant offered to show that she had recovered certain insurance benefits 'as a result of his death' and tendered an instruction which had the effect of offsetting $2,255 insurance benefits from any sum she might be awarded. Bryan Woodson was the operator of the streetcar that struck Mr. Silverstein and in arguing his case defense counsel urged the jury to find, particularly under the evidence as it might relate to the humanitarian doctrine, that Mr. Woodson was not negligent in operating the streetcar and striking Mr. Silverstein. After so arguing he made this appeal to the jury: 'As the judge has told you, the lawyers won't agree upon the testimony, that's the reason why we call twelve people in here from the community to decide these matters. So you decide it on the basis of justice and fairness to the parties, as to whether or not Mr. Woodson should be charged with killing this man, when it's not Mr. Woodson's fault whatsoever. There is nothing he could do about it. * * * I have tried to make this clear, that you are not to consider the matter of measure of damages, what this lady should recover, until such time as you have found Mr. Woodson was responsible for killing this man, and I don't think you are going to find that. So Mr. Hullverson talking about the agreement on that score, and the like, makes no difference. I don't even choose to talk about it, because I don't think you are ever going to get that far, because I don't think you can possibly find Mr. Woodson at fault in killing this man.' In conclusion counsel said, 'Mr. Woodson didn't see the man cross to the south but there was no charge upon him to see that. He saw the man when it mattered. He did everything he could, and I ask you not to charge him for this occurrence.' In the principal instruction the jury was required to find 'that Mr. Silverstein was injured so that died as a direct result' of the negligence hypothesized in the instruction.

In these particular circumstances Mr. Silverstein's death from being struck by the streetcar was an uncontroverted fact and the only reasonable inference from the record is that the parties, both the plaintiff and the defendant, treated the fact as established or true; in short, they tacitly assumed the fact and for that reason the appellant may not complain that it was not established by direct evidence or was hypothesized in the instructions. 88 C.J.S., Trial, Sec. 282, p. 773; Morris v. Equitable Assurance Society, 340 Mo. 709, 719, 102 S.W.2d 569, 574; De Valpine v. New York Life Ins. Co., Mo.App., 105 S.W.2d 977, 979; Masterson v. St. Louis Transit Co., 204 Mo. 507, 520, 103 S.W. 48, 52. Mr. Silverstein's death by reason of being struck by the streetcar having been assumed or tacitly conceded by the parties, the situation is analogous to an instruction's assuming a fact, even an essential one, when there was no real issue in the case as to its existence. Hanser v. Lerner, Mo.App., 153 S.W.2d 806, 811; Davidson v. St. Louis Transit Co., 211 Mo. 320, 356, 109 S.W. 583, 593; Stauffer v. Metropolitan Street Ry. Co., 243 Mo. 305, 333, 147 S.W. 1032, 1040; State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788; 5 C.J.S., Appeal and Error, Sec. 1759, p. 1078.

The meritorious, litigated issue was the plaintiff's right to recover and the defendant's liability under the humanitarian doctrine. Upon this issue the appellant contends that there 'was not sufficient evidence' to warrant a submission of failure to slacken speed or failure to warn within the meaning of the humanitarian doctrine and, therefore, these issues should not have been submitted to the jury. The essence of the appellant's argument is that under the most favorable view of the evidence 'there was not over a second of time that passed from the time the deceased entered the zone of 'imminent peril' until he was in the path of the overhang of the westbound streetcar' and thereafter there was nothing the operator of the streetcar could do to avoid striking Mr. Silverstein. The motorman said that his streetcar was traveling at a speed of about fifteen miles an hour and the first time he saw Mr. Silverstein he was thirty to thirty-five feet away. His brief version of the occurrence was this: 'When I seen him he was running from in front of an eastbound car and he was running a little bit on an angle towards the west, you know, northwest, and he had his head turned to the west watching the westbound traffic, I suppose, I don't know, but as soon as I seen him running I immediately put on my brakes, into emergency, and I don't--the man never knew that I was any ways near him until just before I hit him, he looked right up at me, and he threw up his hands. With the bell sounding and all, he still didn't hear me.' When Mr. Silverstein was almost in the middle of the track the center of the streetcar, 'just to the left of the headlight,' struck him and, therefore, it is said that this is not an "almost escaping case." Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 698, 34 A.L.R.2d 972. In these circumstances it is urged that not over a second of time passed 'from the time the deceased entered the zone of 'imminent peril' until he was in the path of the overhang of the westbound streetcar' and that failure to slacken or failure to warn and consequent liability under the humanitarian doctrine could not be found or based in these respects on such split-second timing. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Vietmeier v. Voss, Mo., 246 S.W.2d 785; Smith v. Siedhoff, Mo., 209 S.W.2d 233. This, however, is not the most favorable view of the evidence.

In setting forth the appellant's contention we have not detailed and analyzed the testimony of the various witnesses and it is not necessary in stating the facts favorably to the plaintiff and as the jury could have found...