Steuernagel v. St. Louis Public Service Co.

• Decision Date: 12 April 1948
• Docket Number: 40584
• Citation: 211 S.W.2d 696,357 Mo. 904
• Parties: Hilda Steuernagel v. St. Louis Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

211 S.W.2d 696

357 Mo. 904

Hilda Steuernagel v. St. Louis Public Service Company, a Corporation, Appellant

No. 40584

Supreme Court of Missouri

April 12, 1948

Rehearing Denied May 27, 1948.

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

Reversed and remanded.

Mattingly Berthold, Jones & Richards and Douglas H. Jones for appellant.

Plaintiff's instruction directing a verdict in plaintiff's favor for failure to slacken speed was not supported by any proof. It left the jury to speculation and conjecture. It was error to so instruct. Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638; Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Sevedge v. K.C.L. & C.R., 331 Mo. 332, 53 S.W.2d 284; March v. Pitcairn, 125 S.W.2d 972; State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835.

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

It was not necessary for defendant's motorman to have brought the street car to a complete stop. He could have avoided crashing into the back end of the moving automobile by merely reducing the speed of the street car. Instruction 1 properly submitted failure to slacken speed as a basis for finding negligence.

OPINION

Tipton, J.

The respondent recovered a judgment of $ 6,000.00 for personal injuries she received while riding as a guest in an automobile driven by James L. Perrin when the automobile was struck in the rear by a streetcar operated by the appellant. The St. Louis Court of Appeals reversed and remanded the judgment of the trial court for the reason that respondent's recovery instruction was not based upon substantial evidence. For a complete statement of facts, see that court's opinion reported in 202 S.W. 2d 516. This court ordered the case transferred for our review.

The case was submitted by respondent's instruction No. 1, which reads as follows:

"The court instructs the jury that if you find and believe from the evidence that on the occasion shown in the evidence that plaintiff was a passenger in an automobile being operated westwardly over and along Highway No. 40 in St. Louis County, Missouri, and that while it was so traveling along said highway, said automobile was struck in the rear by the westbound Woodson streetcar mentioned in the evidence, and that plaintiff was injured directly thereby;

"And if you further find that immediately prior to said collision the defendant saw, or by the exercise of ordinary care on its part could have seen, said automobile proceeding along said highway, in time thereafter with the means and appliances at hand and with safety to the operator and passengers on said streetcar, to have slackened the speed of said streetcar, and could thus and thereby have avoided running into the rear end of said automobile, but that the defendant failed so to do, and that failure on its part was negligence, if you so find, then your verdict will be in favor of the plaintiff and against the defendant."

Appellant contends in its brief that this "instruction directing a verdict in plaintiff's [respondent's] favor for failure to slacken speed was not supported by any proof. It left the jury to speculation and conjecture. It was error to so instruct."

The evidence in this case briefly is that the collision occurred at a point approximately 7700 west on St. Charles Rock Road in St. Louis County at about 10:30 p.m. St. Charles Rock Road is a fourlane highway and is also known as U.S. Highway No. 40. Appellant's streetcar tracks are laid in a private right-of-way to the north of the pavement from Wellston west to a point near the point of the collision where the tracks turn to the left upon the highway and then continue on the highway westwardly, with the outer rail some 18 inches in from the edge of the pavement.

The respondent testified that Perrin was driving his automobile westwardly on this highway at a speed of some 18 or 20 miles an hour. He had gone some 15 or 20 feet beyond where the streetcar tracks curve over upon the highway when a westbound streetcar suddenly ran into the rear of the automobile, knocking the automobile forward about 70 feet where it came to a standstill about 20 to 25 feet beyond the point where the front of the streetcar was brought to a stop. Respondent's evidence was to the effect that the automobile was moving at about 18 to 20 miles an hour at the time of the collision and was not parked on the streetcar tracks, as appellant contended. Her evidence also showed that neither she nor Perrin was aware that the streetcar was following them.

On the other hand, the appellant's evidence tended to show that the streetcar came off of the private right-of-way at a speed of about 20 miles an hour. As the streetcar straightened out after making the turn and the headlight was shining directly down the tracks to the west, the motorman observed the automobile parked on the tracks at the edge of the pavement, about 60 feet ahead. The motorman testified that he knew he would be unable to stop his car in the regular manner in less than 100 feet so he locked the wheels by throwing the car in reverse, but the car ran into the automobile and then continued forward an additional 15 or 20 feet after the impact occurred.

"Many cases decided by this court impliedly hold that a situation of imminent peril is the basic fact of the humanitarian doctrine; that no duty whatever arises under that doctrine unless and until a situation of peril comes into existence; and that when such peril arises the doctrine seizes upon...