Staat v. St. Louis Public Service Co., 51044
| Decision Date | 10 January 1966 |
| Docket Number | No. 51044,No. 1,51044,1 |
| Citation | 397 S.W.2d 675 |
| Parties | Norvel STAAT, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant |
| Court | Missouri Supreme Court |
Burton M. Greenberg, St. Louis, London & Greenberg, St. Louis, of counsel, for respondent.
John D. Schneider, St. Louis, for appellant.
WELBORN, Commissioner.
This is an action for personal injuries arising out of an intersectional collision between a milk truck operated by plaintiff Norval Staat and a bus of the defendant St. Louis Public Service Company. Defendant counterclaimed for damage to its bus. The jury's verdict was for plaintiff for $35,000 and against defendant on its counterclaim. After its motion for new trial had been overruled, defendant appealed from the judgment on plaintiff's claim and its counterclaim.
The collision occurred at around 5:00 a. m., July 19, 1961, at the intersection of North Florissant and Branch Streets, public streets of the City of St. Louis. North Florissant is an asphalt paved street 36 feet wide at the Branch Street intersection. By ordinance of the City of St. Louis, North Florissant is a major street at such point, and pursuant to ordinance a stop sign had been erected on Branch at North Florissant. The ordinance required drivers to 'stop at such 'stop' sign and yield the right-of-way to drivers and pedestrians upon such major streets' and 'not [to] proceed through the intersection or into the major street until safe to do so.' Although the evidence was conflicting on the question of whether or not the streets were slick from rain at the time of the collision, the jury could have found from plaintiff's evidence that, although there was some precipitation, the streets were dry.
Defendant's Walnut Park Line bus was proceeding south on North Florissant down a 5% grade toward the Branch Street intersection. Plaintiff, westbound on Branch Street, was driving a milk truck, an International, 22 feet in length.
The collision occurred when the truck had proceeded into and almost through the intersection, the front of the truck being approximately 5 feet beyond the west line of North Florissant. The bus, 8 feet in width, was operating some 3 feet from the west curb line on North Florissant. The front of the bus struck the right side of the truck and the truck overturned. We are not here concerned with the nature or extent of plaintiff's injuries.
According to plaintiff, he observed the bus 'about' 700 feet away when he came to the intersection and made a complete stop at the stop sign. He looked to his left or to the south and back to the right, action which took from 3 to 5 seconds, and saw the bus again 'approximately' 350 to 400 feet away, moving at about 30 miles per hour. Without looking again to either the north or south, plaintiff entered the intersection with his truck in low gear and accelerated at a gradual even rate to 15 miles per hour at which time, without any sort of warning, the bus struck his truck.
Plaintiff's witness Ellersieck, a passenger on the bus, testified that he saw the truck stopped even with the stop sign when the bus was 280 to 300 feet from the intersection and that the truck did not move from that position until the bus was from 75 to 100 feet from the point of impact. This witness estimated the speed of the bus at 25 miles per hour at that time. Another passenger testified that he did not feel the brakes being applied prior to the collision.
Defendant's witness Lay, operator of the bus, testified that he first saw plaintiff's truck when it was 90 feet east of North Florissant, traveling at 25 miles per hour. As the truck approached the intersection, plaintiff passed the stop sign without stopping and shifted gears when the bus was about 75 to 100 feet away. Plaintiff entered the intersection at 15 miles per hour, with the bus 60 to 70 feet away, traveling at 20 to 25 miles per hour. Lay applied the brakes at that time, and when the vehicles were 200 feet apart, he applied emergency pressure, causing the bus to skid 20 feet, swerve about a foot to the left and strike the truck at 5 miles per hour. The truck's speed had increased to approximately 20 miles per hour at the time of impact.
Plaintiff's expert witness testified that the bus could have been stopped on a wet asphalt surface on a 5% downgrade in 42 feet at 20 miles per hour and within 61 to 80 feet at 25 miles per hour, including reaction time. Defendant's evidence based on tests of the bus at the scene and on expert opinion was that the minimum stopping distance of the bus on dry pavement on the 5% grade was 60 feet at 20 miles per hour and 81 feet at 25 miles per hour, and that on the wet pavement, concerning which there was testimony, the minimum stopping distance at the speed at which the bus was traveling was 75 feet.
Plaintiff's petition alleged humanitarian negligence on the part of the bus driver in failing to stop or reduce speed and plaintiff's submission was on such basis. On this appeal, defendant contends that plaintiff made a submissible case on neither theory and that, therefore, its motion for a directed verdict at the close of all the evidence should have been sustained.
Although we agree with appellant that plaintiff's testimony as to distances (for example, that the bus was 350 feet away when he started from his stop at the sign) is inaccurate, nevertheless, the distances related were estimates only and do not preclude plaintiff's use of more favorable evidence not inconsistent with his basic theory. Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596[3-5]; McDonough v. St. Louis Public Service Company, Mo.Sup., 350 S.W.2d 739, 744; Sundermeyer v. Lentz, Mo.Sup., 386 S.W.2d 16, 20[2-4]; Stout v. St. Louis County Transit Company, Mo.App., 285 S.W.2d 1, 4[1, 2]. The testimony of plaintiff's witness Ellersieck and of defendant's driver was reasonably consistent insofar as speeds and distances were concerned. Their estimates accord with plaintiff's basic theory that after he had entered the intersection and after he entered a position of peril, defendant could have avoided the collision by stopping or slackening his speed. Appellant by mathematical formulae has computed that plaintiff entered a position of peril at 15.47 feet from his starting point, at which time at an attained speed of 8.42 miles per hour he could have stopped in 16.84 feet, or .69 feet short of the bus's path. Appellant then computes, based on various estimates, the position of the bus at that instant, its stopping distances at various speeds and concludes that the evidence shows conclusively that the bus driver could not have avoided the collision within the time and distance available to him. However, because of the probability of human errors in the estimates relied upon, such matters cannot ordinarily be determined with mathematical precision. In any event, we are of the opinion that there was evidence here upon which plaintiff may rely and from which the jury could have found that the driver could have, after plaintiff entered a position of peril, avoided the collision by stopping or slackening the speed of the bus. The driver himself testified that he moved his foot from the accelerator to the brake 'when I saw there was real danger.' He stated that the bus was 70 feet from the point of collision when he did so. Evidence placed the speed of the bus at 20 to 25 miles per hour at that time and plaintiff's expert witness testified that at such speed and under the conditions then and there existing, the bus could have been stopped within 70 feet. The driver acknowledged that on his deposition he had stated that at 20 miles per hour he could have stopped the bus in from 40 to 50 feet. Furthermore, in view of the testimony of plaintiff's witness that he was unaware of any application of the brakes on the bus prior to the collision, the jury might also have found that the speed of the bus was not slackened from the time that the driver 'saw there was real danger' and could have concluded that even a slight slackening of speed would have permitted the truck to have moved some 14 feet further to the west and the collision would have been avoided. We find that plaintiff did make a submissible case.
Appellant's further assignments of error relate to the instructions. Plaintiff's Instruction No. 7 combined a converse to defendant's sole cause instruction (No. 6) and a contributory negligence instruction on defendant's primary negligence submission of its counterclaim (No. 13). On this appeal, appellant's assignment of errors with respect to Instruction No. 7 is as follows:
'II.
'The court committed reversible error in giving instruction No. 7, which contained a misstatement of the law, was in conflict with instructions Nos. 13, 6 and 4, and altered plaintiff's theory of recovery to the end that the jury could only have been confused and misled thereby.
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In its motion for new trial (which contains the specific grounds of error urged against the instruction in the trial court, Civil Rule 70.02, V.A.M.R.), the following errors were assigned:
'28. That the Court erred in giving plaintiff's Instruction ...
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O'Neill v. Boevingloh
...was negligent as submitted in (here insert number of instruction submitting humanitarian negligence).' And in Staat v. St. Louis Public Service Company, 397 S.W.2d 675, l.c. 680, the Supreme Court again stated '* * * an instruction by defendant on its counterclaim charging primary negligenc......