State ex rel. St. Louis Pub. Serv. Co. v. Becker, 32762.

• Decision Date: 06 December 1933
• Docket Number: No. 32762.,32762.
• Citation: 66 S.W.2d 141
• Parties: STATE OF MISSOURI at the Relation of ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Relator, v. WILLIAM DEE BECKER, JOSEPH KANE and EDWARD McCULLEM, Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

66 S.W.2d 141

STATE OF MISSOURI at the Relation of ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Relator, v. WILLIAM DEE BECKER, JOSEPH KANE and EDWARD McCULLEM, Judges of the St. Louis Court of Appeals.

No. 32762.

Supreme Court of Missouri.

Division One, December 6, 1933.

Certiorari.

WRIT QUASHED.

T.E. Francis and B.G. Carpenter for relator.

(1) Respondents have erred in holding and ruling that the trial court properly gave and read to the jury plaintiff's Instruction 2. This instruction permitted and directed a recovery for plaintiff upon a finding (among other things) by the jury that relator's motorman failed to give plaintiff warning of the approach of its street car and failed to slacken the speed of the street car. The plaintiff testified positively that he was unconscious at all times after being knocked upon relator's street car track by the vehicle owned and operated by defendant, People's Motorbus Company, and further testified that he did not "come to" until he reached the hospital following the accident. Since this testimony is a judicial admission binding upon plaintiff; it is conclusively shown that neither "warning" nor "slackening the speed of the street car" could have avoided plaintiff's accident and neither of these acts of negligence could have formed any part of the proximate cause of plaintiff's injuries. In ruling that plaintiff was entitled to have the jury consider such acts of negligence, respondents' opinion is in direct conflict with the following controlling decisions of this Supreme Court: Peterson v. United Rys. Co., 270 Mo. 67; Murray v. Transit Co., 176 Mo. 183; Driscoll v. Wells, 29 S.W. (2d) 50; Wood v. Wells, 270 S.W. 334; Hutchinson v. Railroad, 195 Mo. 546; Mockowick v. Railroad, 196 Mo. 550; Jackson v. Butler, 249 Mo. 342; Steele v. Railroad, 265 Mo. 118; Behen v. Transit Co., 186 Mo. 430; Graefe v. Transit Co., 224 Mo. 264. (2) Respondents erred in finding and holding that the trial court properly overruled relator's motion in arrest of judgment based on the ground that the verdict improperly and unlawfully apportioned damages between joint tort-feasors, and respondents' opinion in this respect is in direct conflict with the following controlling decision of this Supreme Court. Neil v. Curtis Mfg. Co., 41 S.W. (2d) 543. (3) Respondents have erred in holding that the trial court rightly struck from the verdict of the jury the words, "$2,500 against People's Motorbus Company and $1,000 against St. Louis Public Service Company," and, in so ruling and deciding, have announced principles and rules of law which are in direct conflict with the following controlling decisions of this Supreme Court. Neil v. Curtis Mfg. Co., 41 S.W. (2d) 543; Meffert v. Lawson, 287 S.W. 610; Johnson v. Grayson, 230 Mo. 380. (4) Respondents have erred in holding that the trial court properly gave and read to the jury plaintiff's Instruction 4, thus and thereby permitting plaintiff to recover damage for future loss of earnings. The evidence failed to show any such probable losses and in holding the instruction to be without error, respondents' opinion is in direct conflict with the following controlling decisions of this Supreme Court. Lebrecht v. United Railways, 237 S.W. 112; Rosenzweig v. Wells, 308 Mo. 617; Hall v. Coal Co., 260 Mo. 351; Gaty v. United Railways, 286 Mo. 521.

Everett Hullverson and Staunton E. Boudreau for respondents.

(1) To warrant quashal in certiorari case there must be a clear conflict between the opinion of the Court of Appeals and opinions of this court involving the same or similar facts. State ex rel. St. Charles v. Haid, 325 Mo. 118. (2) The opinion of respondents relative to the question of submitting the issue of failure to warn in plaintiff's Instruction 2 announces no rule contrary to this court's pronouncements, nor does it reach a legal conclusion contrary to this court's rulings on the same or similar facts. Hankins v. Ry. Co., 31 S.W. (2d) 601. (3) The opinion of respondents holding that it was not error on the part of the trial court to strike out that part of the verdict which attempted to apportion damages between the two defendants announces no rule of law contrary to this court's pronouncements nor does it reach a legal conclusion contrary to this court's rulings on the same or similar facts. Buttron v. Bridell, 228 Mo. 622, 129 S.W. 12; Neil v. Curtis Mfg. Co., 41 S.W. (2d) 543. (4) The opinion of respondents holding that the issue of future loss of earnings was properly submitted by plaintiff's instruction on damages announces no rule contrary to this court's pronouncements, nor does it reach a legal conclusion contrary to this court's rulings on the same or similar facts. In holding that under the facts in this case the issue of loss of future earnings was properly submitted to the jury respondents followed the latest ruling of this court upon a similar state of facts. Kemper v. Gluck, 39 S.W. (2d) 336.

FERGUSON, C.

This is an original proceeding in certiorari. The relator, St. Louis Public Service Company, seeks to have the opinion of the St. Louis Court of Appeals in the case of Berryman v. People's Motorbus Company of St. Louis and St. Louis Public Service Company (Mo. App.), 54 S.W. (2d) 747, quashed, alleging same to be in conflict with certain prior, controlling decisions of this court. The plaintiff in that case, James Berryman, claimed to have sustained bodily injuries when struck by a motorbus owned and operated upon the streets of the city of St. Louis by the motorbus company, which "knocked him down" upon or near to the street car track of the Public Service Company whereupon he was then and there struck by one of the Public Service Company's street cars. He brought a joint action in the Circuit Court of the City of St. Louis against the motorbus company and the Public Service Company, alleging that the injuries thus sustained were caused by concurrent, negligent acts of the defendants. Plaintiff had judgment in the trial court, for damages, in the sum of $3500, from which judgment both defendants appealed. The appeal went to the St. Louis Court of Appeals and that court, by the opinion which is the subject of this proceeding, affirmed the judgment of the circuit court. The Public Service Company then applied for and was granted the writ issued herein.

We quote from respondents' opinion such of the facts as appear to be pertinent to a consideration of the matters here urged by relator.

"On the 10th of December, 1928, between six-thirty and seven P.M., plaintiff boarded a southbound Broadway street car of the defendant, St. Louis Public Service Company, intending to ride to Broadway and Victor Street, 2500 south in the neighborhood of where he lived. Instead, however, plaintiff fell asleep and when he awoke the car was approaching 5200 South Broadway, at which corner he got off the car with the intention of crossing to the east side of Broadway to take a northbound car back to his original destination.

"According to plaintiff, upon alighting from the street car he stood within three feet of the west rail of the southbound track awaiting an opportunity to cross to the east side of Broadway. While thus standing and awaiting the passing of some automobiles that were going north, plaintiff saw approaching him from the north an automobile, and behind it a motorbus being driven south on Broadway. The automobile passed in the car tracks to the east of plaintiff, but, according to plaintiff, the motorbus, which was following the automobile perhaps a quarter of a block, came on without a warning signal of any kind and approached without decreasing its speed, and as the front of the bus got to plaintiff it made a turn to the west and the left side of the bus struck plaintiff and knocked him down. Plaintiff said it was the left side of his body that was struck by the bus and that he was knocked unconscious. Plaintiff described his position in the street as being at the regular crossing place, `right under the big light.'

"According to the driver of the motorbus it was close to seven o'clock and the electric street lamps were lighted. He testified that he was turning in for the day; ... that, when he first saw plaintiff, plaintiff was three feet east of the west curb at a time when the front of the bus was eight feet to the north of the plaintiff and six feet to the east of him; that plaintiff was evidently trying to get to the east side of Broadway `in a dog-trot-sort of staggering out;' that he sounded his horn and swerved the bus to the left and brought the bus to a stop, straddling the center of the north and southbound tracks; ... that he got out of the bus and looked and saw plaintiff between the rails of the southbound street car tracks `in a getting-up position on one knee;' that, while plaintiff was in this position, the witness saw a southbound street car approaching, traveling thirty or thirty-five miles an hour, and then distant fifty feet from plaintiff; that he did not hear any warning sounded by the street car, and that no attempt was made by the motorman to stop the speed of the car until the car was within fifteen feet of plaintiff when the brakes were put on, the wheels locked and the car `kept on coming in a sliding position — the wheels locked. This man was kneeling and it bumped him and knocked him down and bumped the man again and got him underneath the guard under the car.' He stated the first time the car knocked plaintiff five or six feet, and the second time `the distance underneath the car was about two or three feet.' According to this witness, after the car struck plaintiff it traveled eight or nine feet. When the car stopped `a part of plaintiff's body was underneath and a part in front of the car.' At this point in the examination of the witness he was asked: `How far could you see an object away? A. If looking for a man I could see him three or four blocks away.' ... `Q. Under the conditions existing...