Vanacek v. St. Louis Public Service Co.

• Decision Date: 11 June 1962
• Docket Number: No. 48474,48474
• Citation: 358 S.W.2d 808
• Parties: Louis VANACEK, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

Page 808

358 S.W.2d 808

Louis VANACEK, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 48474.

Supreme Court of Missouri, En Banc.

June 11, 1962.

Rehearing Denied July 16, 1962.

William M. Corrigan, St. Louis, for appellant.

Edmund W. Albright, William L. Mason, Jr., St. Louis, for respondent.

HYDE, Judge.

Plaintiff obtained judgment for $50,000.00 for personal injuries, sustained when the motorcycle he was riding as a member of the Metropolitan St. Louis Police Force went out of control, allegedly as a result of a defect existing in the surface of North Broadway between the rails of a streetcar track. Defendant has appealed and contends that the trial court erred in refusing to direct a verdict for it at the close of all the evidence for the reason that defendant had no duty to plaintiff to maintain the street at the place in question at the time of his injury.

An opinion written in Division One did not receive a majority vote and the case was transferred to Banc. The following statement of facts from the divisional opinion is set out, without quotation marks, and adopted with some additions. In April 1940 the Board of Public Service of the City of St. Louis issued a permit of indefinite duration (in effect at the times in question) to defendant to continue operation over and maintenance of existing street railway tracks and appurtenances located upon certain public streets in St. Louis including North Broadway. By charter and ordinance, St. Louis required defendant to keep the street between the rails of its tracks, and to the extent of at least 12 inches outside each rail, in perfect repair and as nearly on a level with such rails as practicable.

In July 1956 the Missouri Public Service Commission, pursuant to defendant's application and after extensive findings of fact, entered its order permitting defendant 'to abandon the street railway tracks of its Broadway car line (Route No. 40) and all streetcar service thereover,' except tracks used in connection with the operation of other streetcar lines (not here involved) and upon the condition that defendant substitute motorbuses not later than September 30, 1956. That order was dated July 17, 1956, and was effective July 27, 1956. Seven days after the order's date, defendant and the city entered into a contract which recited defendant's application to the commission, the commission's order, and that the city and the company desired to agree 'for the purpose of settling and determining the Company's obligations at the time of the abandonment of said street car service pursuant to said Commission proceedings, with respect to the abandoned street car tracks of the said Broadway Car Line, located in paved streets in the City of St. Louis, the disposition of poles, wires, tracks, and other appurtenances thereof, and the question of title to such property, and other matters * * *.' The agreement then provided that when the company abandoned the tracks and service on route 40, defendant was to give formal written notice thereof to the Director of Street and Sewers and deliver a check to the city in the sum of $125,780.00 to be used by the city in maintaining, surfacing and otherwise improving the abandoned track areas and any remainder would be used to repair roadway paving at bus stops. The agreement further provided that after such formal notification the city would assume responsibility for any resurfacing of the abandoned car tracks and title to all said tracks including the rails, ties, and other track fixtures and appurtenances 'is hereby vested to the City and the City assumes full possession and control thereof (this agreement being construed as a quitclaim deed thereto), and from said date forward the Company and its successors and assigns are relieved of all future liability of the maintenance, repair or removal of said tracks and all paving obligations incidental thereto * * *.'

In a letter dated August 31, 1956, defendant formally notified the city of its abandonment of service and trackage as of August 20 and enclosed a check to the city in the amount above noted, which check was received by the comptroller on September 4, 1956. However, the city had made no changes or repairs in the area where plaintiff was injured before the time of his injury.

In the afternoon of October 13, 1956, plaintiff, in pursuit of a suspected speeder, was operating his motorcycle north on North Broadway near Dickson Street and between the rails of the northbound streetcar track when he lost control of the motorcycle, fell from it and was injured. As plaintiff proceeded north for four or five blocks his motorcycle was about midway between the rails of the northbound streetcar track and he was gaining slightly on the automobile, attempting to get in a position to check its speed without calling attention of the driver to the fact that he was being pursued. When he reached a place about 20 feet or so south of Dickson Street, his motorcycle ran into a depression or rut (about four or five inches wide and two or three inches deep) running parallel with and along the inside of the east rail of the northbound track for a distance of several feet. Within a few feet thereafter, the motorcycle struck a galvanized sheet metal plate about a foot long by six inches wide, and a fraction (perhaps 1/8th) of an inch thick. An end or corner of that plate was wedged under the east rail and the plate protruded generally westwardly through the rut and out of it onto the surface of the street. Apparently the metal plate had been run over by heavy vehicles. In any event, it was flat against and conformed to the irregularities of the area it covered. There was no evidence that defendant was responsible for the presence of the metal plate. The motorcycle went out of control, traveled northeastwardly and struck Broadway's east curb. Plaintiff was thrown to the sidewalk at a place about 141 feet northeast of the metal plate.

Broadway's surface at the area in question (including the area from Franklin to Dickson), both to the east of the east rail and between the rails of the northbound track, was paved with cobblestones which had been covered in some areas with asphalt. The street's surface was rough and at places was somewhat rougher between the northbound rails than it was east of the track. Plaintiff had traveled the portion of Broadway in question many times and was familiar with the fact that the street's surface was rough and that care was required to traverse it safely on a motorcycle. He had increased his speed so that at the time of the accident he was going 35 or 36 miles per hour. He did not sound his siren or operate a red light. At the time the motorcycle entered the rut plaintiff was attempting to watch the automobile ahead of him and his speedometer, and at the same time pay some attention to his direction and the condition of the street. The evidence indicates the rut had existed for some time before the date of the contract between defendant and the city; and we consider it was shown that the condition of the rut at least was a concurring cause of plaintiff's motorcycle taking the course it did.

'A fundamental test of whether one person has a cause of action in tort against another is: Did the person, sought to be held liable, own to the person,...