Smith v. St. Louis Public Service Co.

• Decision Date: 11 April 1955
• Docket Number: No. 2,No. 44194,44194,2
• Citation: 277 S.W.2d 498
• Parties: Jink SMITH (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

Page 498

277 S.W.2d 498

Jink SMITH (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant),

Appellant.

No. 44194.

Supreme Court of Missouri, Division No. 2.

April 11, 1955.

Lloyd E. Boas, Harry L. Bell, St. Louis, for appellant.

J. Ben Searcy, Eminence, Charles E. Gray, St. Louis, for respondent.

BROADDUS, Special Judge.

This is a suit for damages for personal injuries allegedly sustained by plaintiff, Jink Smith. The case was tried to a jury resulting in a verdict and judgment in favor of defendant. Plaintiff's motion for a new trial was sustained by the trial court and defendant appealed.

Plaintiff was a resident of Eminence, Missouri. At about seven o'clock on the morning of September 29, 1952, he was a passenger in the rear seat of a Packard automobile which was being operated northwardly on Union Boulevard in the City of St. Louis by his friend, Roy Ferguson. There were two other passengers in the automobile, Mr. Huffman and Mr. Dethrage, and the whole group was on the way to see about obtaining work as carpenters. When the automobile was crossing Page Boulevard it was involved in a collision with the defendant's westbound Page bus and plaintiff claimed to have suffered injuries as a result of that collision. Immediately following the collision plaintiff and the other occupants of the automobile drove on to their destination and plaintiff obtained employment as a carpenter and worked at that job from the day following the collision until sometime in December when the job was completed.

The evidence disclosed that the movement of vehicles at the intersection of Page and Union Boulevards was regulated by an electric traffic signal which was functioning at the time of the collision.

Plaintiff submitted his case to the jury solely upon the theory that defendant's bus driver negligently entered the intersection when the signal for westbound traffic on Page Boulevard was red. The defendant's submitted theory was that the automobile in which plaintiff was riding was driven into the intersection when the traffic signal for northbound traffic on Union Boulevard was red.

Defendant produced substantial evidence to support its position. One of its witnesses was Robert Raithel, research supervisor for the Emerson Electric Company. He testified that just prior to the collision he was driving north on Union Boulevard He came to the intersection of Union and Page Boulevards and stopped his car 'in accordance with the red light.' Immediately to his left was the car in which plaintiff was riding. He saw the bus moving west on Page and 'the signal was green in its favor.' Then the car occupied by plaintiff started forward. The light 'was red at the time the automobile entered the intersection and it was red at the time the accident between the bus and the automobile took place.' Mr. Raithel did not get out of his car but drove on to his place of employment. That evening he called the Public Service Company and 'reported that I had been a witness to the accident.'

Around 3:00 or 3:30 p. m. on the second afternoon of the trial the defendant ran out of witnesses and its counsel announced to the court, out of the hearing of the jury, that he would like to have a recess until the next morning so that he might use the witnesses that he expected to be available at that time. Thereafter, and in the presence of the jury, the court asked defendant's counsel if he had not announced ready on the preceding morning, and counsel replied in the affirmative. The court then stated: 'Now, here you announce to the court at this moment that you haven't got any more testimony and you want the court to adjourn until tomorrow morning. Well, that's unreasonable, Mr. Bell.' Defendant's counsel then stated that if the court wanted him to close without attempting to get in the other witnesses he would do so. The court then stated that it was not fair for the defendant's office to say that they could not get witnesses in and to ask the court to adjourn until the next day, and then the court asked the attorney for plaintiff if he had anything to offer. Plaintiff's counsel stated that the matter was not the fault of the defendant's trial counsel. Defendant's counsel advised the court that he had contacted the office and that the young lady who arranges for the witnesses had advised him that there were one or two witnesses who might be able to appear the next morning, but that they could not get to court before that time, and if the court wanted to proceed, 'that is fine.'

Mr. Gray, plaintiff's counsel, then stated that he did not feel that it was Mr. Bell's fault, but that he thought the blame should be placed on Mr. Bell's office. The court then stated that the office is not running these lawsuits. Plaintiff's counsel then stated that he would abide by the court's ruling, but that he thought that the defendant should be given an opportunity to introduce whatever they had and the trial court then made the following statement: 'Well, you think the court ought to adjourn now and lose this hour and a half just because his office hasn't got his witnesses here? Now, this court doesn't like that kind of procedure. Why do you announce ready then, gentlemen, if you are not going to be ready? You are presuming that this court is going to just stop and start when you ask it to. That assumption is too violent. These gentlemen are here and they are ready to do their duty. The court is here, we are all here except two of your witnesses. That is unfair to everybody in connection with this lawsuit.'

Defendant's counsel then stated that he would rest if the court wanted him to and then, in the presence of the jury, the court stated, 'I don't want to wait over another day, don't want to wait hours to get it done. The court will defer to Mr. Gray's request. You are requesting now that the court recess until tomorrow morning. Is that your suggestion?' In response to the court's question plaintiff's counsel stated, 'Yes, I would prefer that the defendant be given an opportunity to bring in his evidence.' The court then stated, 'Let the record show that upon the suggestion of the attorney for the plaintiff that he prefers that the court recess until tomorrow morning to give the defendant an opportunity, another opportunity, to present his case and finish it. The court wants to add to that, that the court is very much displeased about the way the court has been treated in this case. We waited for you at noon. We waited for you awhile yesterday morning, you announced ready, now, at this late hour on this second day of the trial you first inform the court that you haven't got your witnesses here, your office is not prepared to supply your witnesses.' Defendant's counsel then assured the court that he took full responsibility and the court then said, 'I am going to recess the court until tomorrow morning at ten o'clock, not on your request, but upon the request of Mr. Gray who asked the court to do it and I want you to be ready to complete your case.'

The court then turned and addressed the jury as follows: 'Gentlemen, unfortunately, we have run into this kind of a situation. The court feels like it has not been treated fairly and you are a part of this court, you are included in the manner of treatment, but you have heard the request of counsel, the court doesn't want to just arbitrarily cast anybody out of court. They are both...