Spritz v. St. Louis Public Service Co.

• Decision Date: 09 January 1961
• Docket Number: No. 48086,No. 2,48086,2
• Citation: 341 S.W.2d 790
• Parties: Meyer SPRITZ, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 790

341 S.W.2d 790

Meyer SPRITZ, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 48086.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1961.

Donald W. Bird, St. Louis, for appellant.

George E. Sullivan, Milton R. Fox, Kenneth J. Downs and William L. Mason, Jr., St. Louis, for respondent.

BOHLING, Commissioner.

Meyer Spritz sued the St. Louis Public Service Company, a corporation, for $27,956.54 on account of injuries and damages resulting from a collision between plaintiff's truck and defendant's motorbus. The jury returned a unanimous verdict for the defendant. Thereafter, the court sustained plaintiff's motion for a new trial because of error in giving instructions Nos. 2 and 7, requested by the defendant. Defendant has appealed from said order.

The evidence is in conflict but the facts are not complicated.

This collision occurred about 12:30 p. m. Saturday, April 26, 1958, in front of the A. C. K. Rebuilders Company, 2831 (on the north side of) Locust Street, St. Louis, Missouri. Locust Street, 42 feet wide, is a one-way street, divided into four lanes, for westbound traffic only. There were parking meters for parking cars on the south and 'No parking in this block' signs on the north side of the street. Plaintiff testified that parking was permitted for commercial drivers on the north side of the street.

Plaintiff submitted his case under the 'rear-end collision' doctrine. His theory was that defendant's 'bus was as all times to the rear of' his truck before the bus overtook the truck and hit it in the rear. Defendant's theory was that the two motor vehicles came alongside of each other before the collision, the bus in the curb and the truck in the second lane; that plaintiff increased the speed of the truck; that the front but not the rear half of the truck got ahead of the bus; that plaintiff pulled his truck to the right into the path of the bus; and that the right rear side of the truck sideswiped the left front end of the bus.

Plaintiff, driving a Dodge panel truck, a commercial vehicle, entered Locust Street at 20th Street, intending to stop at the A.C.K. place of business, which is about 125 to 150 feet west of Leffingwell Street in the 2800 block. He testified he was westbound 8 or 10 feet south of the north curb, practically about the second lane, and traveling 26 to 28 miles per hour. He started slackening speed upon passing Leffingwell and was traveling 10 to 15 m. p. h. when about 50 feet east of the A.C.K. building. He then 'glided over towards the curb' in front of the A.C.K. building. As he was pulling in, he 'came to slow down to pull right on the side, and it didn't take over two seconds' and all of a sudden he heard a squeak and felt a jolt. His truck was then about 6 feet south of the curb. He stated the right rear panel of the truck and the left front bumper of the bus came in contact, 'and when he broke loose, I pulled all the way towards the curb'; that his truck was caused to move 10 to 12 feet to the west, stopping with its front end west of the A.C.K. building, and about 6 to 8 feet from the curb, and the bus was 6 or 8 feet directly back of the truck. Joe J. Castulic, Jr., president of A.C.K. company, was looking out of the window and corroborated plaintiff in part.

Defendant's evidence was to the following effect. The four traffic lanes on Locust Street were divided by white painted lines. Defendant's bus traveled westwardly in the north lane of Locust, approximately 2 feet south of the curb, to the point of the collision after a stop two or three blocks east of Leffingwell. As the bus was crossing Leffingwell plaintiff's truck was in the second lane from the north curb a short distance ahead of the bus. Plaintiff slackened speed considerably and dropped back to where the truck's front end was even with or a little east of the front of the bus for a short distance. The truck was then only 2 feet south of the bus. The bus was moving between 20 and 25 m. p. h. The truck speeded up, began to move ahead of the bus, and when the middle of the truck was even with the front of the bus plaintiff started, cut, toward the curb, to his right, crowding the bus. The bus was 8 1/2 feet wide. Its operator immediately applied his brakes, sounded his horn, and moved a little closer to the north curb. The right rear of the truck, near the back end of the right rear fender and ahead of the truck bumper, came in contact with the left front corner of the bus, and after the collision the left front side of the bus bumper was bent forward, away from the bus. The bus stopped about 5 or 6 feet west of the A.C.K. building, and the truck some distance ahead of the bus. The bus operator and three or four passengers so testified as to the movements of the two vehicles.

The complaint against instruction No. 2 is that it assumed there was a time when the middle of the right side of the plaintiff's truck was even with the front bumper of defendant's motorbus.

Plaintiff's verdict directing instruction submitted, so far as material here, findings that plaintiff's panel truck and defendant's motorbus were westbound in the 2800 block of Locust Street; 'that the said bus was at all times to the rear of the panel truck'; that the bus overtook the panel truck; that the bus operator allowed the bus to collide with the rear portion of the truck, and thereby failed to exercise the highest degree of care, et cetera.

Defendant's questioned instruction submitted, so far as material here, findings from the credibile evidence 'that on the occasion mentioned in the evidence Locust Street was divided into three or more clearly marked traffic lanes, and if you find that plaintiff was driving his truck westwardly on Locust Street in the second traffic lane from the north curb at a speed of approximately 25 miles per hour, and if you find that the westbound motorbus mentioned in the evidence was traveling in the traffic lane next to the north curb of Locust Avenue at a speed of 20 to 25 miles per hour approximately 2 feet to the right of said truck, and if you find that at a time when the middle of the right side of said truck was even with the front bumper of said motorbus the plaintiff turned said truck to the right and into the traffic lane occupied by said motorbus and thereby caused said truck to come into collision with said motorbus,' et cetera, including findings of contributory negligence and causal relation.

Prejudicial error generally results from giving an instruction which assumes a controverted material fact. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 567[8, 9] (instruction assumed the existence of an 'abrupt' slope into a manhole in a sidewalk); George v. Allen, 362 Mo. 971, 245 S.W.2d 848, 850 (instruction submitting that a motorist 'could not * * * have slowed down more than he did' assumed that he did slow down). Sollars v. Atchison, T. & S. F. Ry. Co., 239 Mo.App. 410, 187 S.W.2d 513, after reviewing a number of cases, points out (518) that many of the cases involving a like issue are borderline cases and are difficult to reconcile.

We assume that a jury is composed of ordinarily intelligent men; and the test of the correctness of an instruction rests in whether the average juror will correctly understand therefrom the applicable rules of law. Lewis v. Zagata, 350 Mo....