Steuernagel v. St. Louis Public Service Co.

• Decision Date: 20 May 1947
• Docket Number: No. 27133.,27133.
• Citation: 202 S.W.2d 516
• Parties: STEUERNAGEL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

202 S.W.2d 516

STEUERNAGEL v. ST. LOUIS PUBLIC SERVICE CO.

No. 27133.

St. Louis Court of Appeals. Missouri.

May 20, 1947.

Rehearing Denied June 20, 1947.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Hilda I. Steuernagel against the St. Louis Public Service Company for injuries suffered by plaintiff when automobile in which she was a guest was struck by streetcar. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and remanded.

Mattingly, Berthold, Jones and Richards and Douglas H. Jones, all of St. Louis, for appellant.

Louis E. Miller, Miller & Landau, and B. Sherman Landau, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Hilda I. Steuernagel, when an automobile in which she was riding as the guest of the driver, James L. Perrin, was struck in the rear by a street car owned and operated by defendant, St. Louis Public Service Company.

Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $6,000. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave timely notice of appeal, and by proper steps has caused the action to be transferred to this court for our review.

The accident happened about half past ten o'clock at night at a point about 7700 west on St. Charles Rock Road in St. Louis County.

Leaving Wellston, defendant's westbound street car track for what is known as its Woodson Road line is laid in a private right of way to the north of St. Charles Rock Road until near the point of the accident where the track curves over to the left upon the highway and then continues on the highway with its outer rail some 18 inches in from the edge of the pavement.

According to plaintiff's version of the facts, it appears that Perrin was driving his automobile westwardly on St. Charles Rock Road at a speed of 18 or 20 miles an hour, and had passed some 15 or 20 feet beyond the point where the street car track curves over upon the highway when a westbound street car suddenly ran into the rear of the automobile, knocking the automobile forward for about 70 feet, where it came to a standstill from 20 to 25 feet beyond the point where the front of the street car was brought to a stop.

Plaintiff's evidence was to the positive effect that the speed of the automobile had not varied materially from the time the parties left Wellston until the moment of the collision, and that the automobile was moving at the time of the collision, and was not parked on the street car track as defendant's evidence tended to disclose.

Defendant's evidence, on the other hand, was that the street car came off of the private right of way onto the highway at a speed of about 20 miles an hour, and that as the street car straightened out after making the turn so that the headlight shone directly down the track to the west, the motorman observed the automobile parked on the track at the edge of the pavement about 60 feet ahead. The motorman testified that being unable to stop his car in the regular manner in less than 100 feet, he locked the wheels by throwing the car in reverse, but that the car nevertheless ran into the automobile and then continued to move forward an additional 15 or 20 feet after the impact had occurred.

The charge of negligence is to be gathered from paragraphs 3, 4, and 5 of the petition, which read as follows:

"3. That among the lines of street railways operated by the defendant was a certain line known as the Woodson Road line; that said line extended over and along said St. Charles Rock Road, and Woodson Road street cars were operated by the defendant in a westerly direction over and along said line;

"4. That on or about October 13, 1945, the plaintiff was a passenger in an automobile being operated westwardly over and along said St. Charles Rock Road in St. Louis County, Missouri, and as the automobile was being so operated, and while the same was in motion over and along the north side of said St. Charles Rock Road, it was violently struck in the rear by a westbound Woodson Road street car which was then and there owned and operated by the defendant, causing the plaintiff to sustain serious and permanent injuries as hereinafter averred;

"5. That the aforesaid collision and the resultant injuries to plaintiff were directly and proximately caused by the carelessness and negligence of the defendant in so operating its aforesaid street car as to cause the same to run into and against and collide with the plaintiff's automobile under the circumstances hereinbefore averred."

There is a controversy between the parties in regard to the nature of the charge of negligence thus pleaded in the petition. There is no suggestion that the doctrine of res ipsa loquitur is involved, but instead the question is whether the charge was merely one of general negligence, or whether, taken in its entirety, it amounted to a charge of specific negligence.

Plaintiff has apparently taken the position throughout that the petition averred no more than general negligence. Defendant argues in this court that in describing the situation and respective positions of the parties, with the automobile being driven westwardly along the north side of the highway ahead of the street car which was allowed to run into it from the rear, the charge should be construed as one of specific negligence under the authority of Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914. However in the trial court, in making its objections to the instructions about to be given for plaintiff, defendant contended that the charge was one of general negligence.

The question arises in connection with the propriety of plaintiff's submission of the case for what was seemingly intended as negligence under the humanitarian doctrine, which was not objectionable as outside the scope of the petition if the charge was one of general negligence. Banks v. Morris & Co., 302 Mo. 254, 268, 257 S.W. 482, 485; Frankel v. Hudson, 271 Mo. 495, 196 S.W. 1121. Plaintiff insists that regardless of how the allegations of the petition might otherwise be viewed, defendant must now be held to its theory in the trial court. The point made in this court that the specific negligence submitted by plaintiff was a departure from the specific negligence alleged...