Snyder v. St. Louis Public Service Co.

• Decision Date: 14 December 1959
• Docket Number: No. 47215,No. 2,47215,2
• Citation: 329 S.W.2d 721
• Parties: Rose SNYDER, Appellant-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant-Respondent
• Court: Missouri Supreme Court

Page 721

329 S.W.2d 721

Rose SNYDER, Appellant-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant-Respondent.

No. 47215.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1959.

Murphy & Gaertner, Carl R. Gaertner, St. Louis, for appellant-respondent Rose Snyder.

Frank B. Green, Lloyd E. Boas, St. Louis, of counsel, for appellant-respondent, St. Louis Public Service Co.

BARRETT, Commissioner.

The plaintiff, Rose Snyder, was a passenger on a bus when the bus operator and the bus became concerned with and involved in a collision between two other vehicles, an automobile and a coal truck. To recover damages for her resulting personal injuries Mrs. Snyder instituted this action against Junus Wright, the driver of the automobile, Edward Bridges, the driver of the coal truck, and the St. Louis Public Service Company, a public carrier. Bridges and Wright defaulted and a verdict was directed against them; by a nine to three vote the jury returned a verdict in favor of Mrs. Snyder in the sum of $12,500 against the three defendants. On June 5, 1958, seven days after the entry of the judgment, the bus company filed its alternative motion for judgment or a new trial. On August 15, 1958, seventy-one days after the filing of the motion, the trial court entered an order holding in abeyance the judgment against Wright and Bridges and overruling the company's motion for judgment but sustaining the motion for a new trial on the issue of liability only on two of the grounds specified in the motion, that the court had erred in giving instruction one and in failing to sustain an objection to certain argument by plaintiff's counsel.

Mrs. Snyder contends, in the first place, that the order granting a new trial on the issue of liability only was a nullity and that, therefore, the company could not appeal. Since the order granting the partial new trial was entered after the elapse of more than thirty days (V.A.M.S., Sec. 510.370) and was not relief sought by the company, it is said that the order in fact overruled the motion and constituted the granting of a new trial on the court's own motion. The short answer to the basic defect in the plaintiff's argument is the fact that, even though thirty days had elapsed, the court ruled on the motion within ninety days (V.A.M.S., Sec. 510.360) and granted a partial new trial (V.A.M.S., Sec. 510.330), not on the court's own initiative, but upon two grounds or specifications set forth in the motion (Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 27; Borders v. Niemoeller, Mo.App., 239 S.W.2d 555, 558; Birmingham v. Kansas City Public Service Co., 361 Mo. 458, 235 S.W.2d 322); therefore, either or both parties were aggrieved and had the right to appeal. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972.

Mrs. Snyder contends, in the second place, that the first specification upon which the partial new trial was granted is not supported by the record (Pitha v. St. Louis Public Service Co., Mo., 273 S.W.2d 176) and so there was an abuse of discretion (Heggeman v. St. Louis Public Service Co., Mo.App., 255 S.W.2d 99, 104), and, in any event, that instruction one was not erroneous--with the consequence, according to her, that the order should be reversed and the judgment reinstated. Osborne v. Goodman, Mo., 289 S.W.2d 68. The company makes no attempt to defend the first specification of error and it is assumed to be without merit. Furthermore, the company does not contend that there is no evidence to support a finding of breach of duty and negligence in any respect or upon any theory. The company does contend, however, that the plaintiff failed to make a submissible case upon the theory specifically hypothesized in her recovery instruction, that therefore instruction one is not supported by the evidence and is erroneous and, finally, that the court erred in failing to grant a new trial on the issue of damages as well as liability. Thus the essence of this appeal is whether the plaintiff has a submissible case upon the theory specifically hypothesized in instruction one.

At 3:30 in the afternoon, July 18, 1956, the bus was traveling north on Newstead at a speed of 20 miles an hour; it was following, 150 feet back, an automobile driven by Junus Wright. Wright signaled his intention of making a left turn onto Greer but after signaling drove directly into the path of a southbound coal truck driven by Edward Bridges. The truck, traveling south on Newstead at an undiminished speed of 30 to 35 miles an hour, hit the automobile, 'spun it around' and against the curb on the southwest corner of the intersection, and caromed or skidded diagonally across the white center line and scraped or hit the bus which by that time had slackened its speed to ten miles an hour but had traveled up to the intersection. The truck hit or scraped the left side of the bus, about 24 inches from the rear end, and came to a stop 6 or 8 feet beyond. Under these circumstances the plaintiff poses the question: 'Is the duty to act imposed upon the operator of a common carrier of passengers for hire when he first realizes, or in the exercise of the highest degree of care should realize, that a collision between two vehicles, one of which is moving at a high rate of speed on wet pavement, is about to take place just a few feet to the left of the intended path of his vehicle, or can he wait until the involvment of his vehicle and his passengers is a certainty before taking evasive action?' At another point in her brief the plaintiff says, 'the operator, by his own testimony, knew there was going to be a collision ahead of him and just a few feet to the left of his intended path when the truck was one-half block (or 150 feet) north of the intersection and his bus at that time was admittedly more than 100 feet south of the intersection.' The difficulty with these postures is that the plaintiff did not seize upon the situation as the bus approached the intersection from 150 feet and the operator first saw the two vehicles or even upon the moment he was first aware of the hazard of their colliding. The instruction may include this general hypothesis but with precision and great particularity the plaintiff seizes upon the circumstances after the truck was skidding towards the bus and after the operator knew there was danger of a collision between the truck and the bus and she specifically limits the jury to the hypothesis 'in time thereafter' to have avoided the collision. This is the language and specific hypothesis of the instruction: 'that the operator of said bus knew, or in the exercise of the highest degree of care could have known, of the danger of collision between said truck and said bus, if so, in time thereafter to have avoided said collision between said bus and truck by...