Wegener v. St. Louis County Transit Co.

• Decision Date: 11 June 1962
• Docket Number: No. 48451,48451
• Citation: Wegener v. St. Louis County Transit Co., 357 S.W.2d 943 (Mo. 1962)
• Parties: Ralph WEGENER, Plaintiff-Appellant, v. ST. LOUIS COUNTY TRANSIT COMPANY, a Corporation, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 943

357 S.W.2d 943

Ralph WEGENER, Plaintiff-Appellant, v.ST. LOUIS COUNTY TRANSIT COMPANY, a Corporation, Defendant-Respondent.

No. 48451.

Supreme Court of Missouri, En Banc.

June 11, 1962.

N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, for appellant.

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

HOUSER, Commissioner.

This is a suit for $25,000 damages for personal injuries alleged to have been sustained by Ralph Wegener when the automobile he was driving and a St. Louis County Transit Company bus collided in the intersection of Lindell Boulevard and DeBaliviere Avenue in the City of St. Louis.A trial jury returned a verdict for defendant.Plaintiff has appealed from the ensuing judgment.

Lindell Boulevard runs east-west; DeBaliviere runs north-south, with this qualification, that there is a pear-shaped island 56 feet wide at its extreme width, located in DeBaliviere north of the north line of Lindell.This divides DeBaliviere into two segments and causes the west segment of DeBaliviere (for southbound traffic) to run in a southwest direction and the east segment of DeBaliviere (for northbound traffic) to run in a northwest direction.Traffic referred to as 'southbound on DeBaliviere' therefore actually travels in a southwest direction, due to the pear shape of the center island north of Lindell.It is approximately 180 feet from the east curb line of the east segment of DeBaliviere to the west curb line of the west segment of DeBaliviere on the north side of Lindell.There is also an island 100 feet long running parallel to and south of Lindell.The north line of this island coincides with the south line of Lindell.Defendant's bus was westbound on Lindell; plaintiff's automobile southbound on DeBaliviere, at the time of collision.Electric stop and go signals control traffic at the intersection.Lights controlling westbound traffic on Lindell were located on the northeast and southwest corners of the intersection and on the north and south islands.Lights controlling southbound traffic on DeBaliviere were located on the northwest and southwest corners, and on the west end of the south island.The sequence: green to amber to red to green, etc.When the lights for westbound traffic were on green, the lights for southbound traffic were on red.Then the lights for westbound traffic would go from green to amber for 2 1/2 seconds.Then the lights for westbound traffic would go from amber to red, and the entire intersection (except the right turn off Lindell) would stay red for 2 more seconds.Next, the lights for southbound and northbound DeBaliviere traffic would turn green.When the lights for southbound traffic on DeBaliviere were on green the lights for westbound traffic on Lindell were on red.There were 3 westbound lanes of traffic on Lindell at this intersection.Lindell is 50 feet wide both east and west of the intersection.At their narrowest (where the pear-shaped island reaches its widest bulge) the east and west segments of DeBaliviere are 30 feet wide.These narrowest points are approximately 25 feet north of the north line of Lindell.A perfect curve describes these points and a point on the north line of Lindell.The east and west segments of DeBaliviere at the north line of Lindell are approximately 86 1/2 feet wide.It is 86 1/2 feet each way from the point at which the south side of the pear-shaped island touches the north line of Lindell, to the east and west curb lines (extended) of DeBaliviere.

On April 14, 1958 at 12:15 P.M. the streets were wet.There was no fog or mist; visibility was good.Plaintiff was driving south on DeBaliviere in the lane nearest the west curb of DeBaliviere, intending to cross Lindell and enter Forest Park.The bus was driving west on Lindell, intending to go through the intersection and on west on Lindell.The two vehicles collided in the lane the bus was using, approximately 4 feet east of the west line of the west segment of DeBaliviere (extended).The point of collision was about 85 feet west of the center of the intersection and about 195 feet west of the traffic light for westbound traffic located on the northeast corner of the intersection.

Plaintiff's petition contained five assignments of primary negligence, and charged negligent failure to stop, slacken speed, sound a warning, or turn and swerve under the humanitarian doctrine.

On this appeal plaintiff makes only one point: error in refusing to give plaintiff's Instruction No.A, which would have submitted the case to the jury under the humanitarian doctrine on the theory of defendant's failure to warn, or in the alternative, failure to slacken speed.The trial court submitted the case on primary negligence: failure to stop the bus for a red traffic light as the bus entered the intersection of Lindell and the southbound lane of DeBaliviere.

Plaintiff's proof on the merits (his own testimony and that of Mr. and Mrs. Theodore Kopecky) tended to establish the following set of facts: Three automobiles, proceeding south on the west segment of DeBaliviere, approached Lindell and stopped at the intersection because the red light was against them.Plaintiff's Ford automobile was in the west or curb lane.The Kopecky station wagon was in the middle.A third automobile was in the east lane, to Kopeckys' left.The station wagon and the third car were lined up even, but the front of plaintiff's Ford was farther north, e. g., behind the line of the other two vehicles.Because of the position of the three cars after they stopped plaintiff could not see the entire intersection to his left or east, but could see only about 92 feet east, to a point roughly even with the traffic light on the north island.Mrs. Kopecky, driver of the station wagon, looked to the east.She could see the bus, quite a distance back (east) of the stop light, coming west on Lindell.Not 'worrying about him' because 'he had the red light,' Mrs. Kopecky started forward when the light for southbound traffic turned green, after the car to her left started forward.When the Kopecky station wagon started forward plaintiff took his foot off the brake, put it on the accelerator and proceeded out into the intersection.As he started up, plaintiff looked to his left (east) as far as he could see, but did not observe any westbound traffic.After the station wagon had gone forward 5 to 10 feet and while the station wagon was traveling 5 to 10 m. p. h., Mr. Kopecky, sitting in the front seat on the right side, saw the bus coming through the intersection and then 35 to 50 feet east of the station wagon.Kopecky shouted to his wife, who brought the station wagon to a stop very suddenly.The car to Kopeckys' left had already stopped.When the station wagon stopped plaintiff's Ford went past it, whereupon plaintiff glanced up, saw the bus, applied his brakes and tried to turn, but did not have sufficient time.The bus, going 25 m. p. h., was then just a few feet away from plaintiff--10 or 15 feet east of the line of travel of plaintiff's automobile.Plaintiff's Ford was 8 to 10 feet into the intersection when plaintiff applied his brakes.The brakes on the Ford were in good operating condition, but it was too late to avoid a collision.The right front of the bus struck the left front half of plaintiff's Ford.Plaintiff estimated the speed of the bus at time of collision at 25 m. p. h. As to the length of the run plaintiff made from his stationary position to the point of collision: Plaintiff estimated the distance from the front of his automobile to the north line of Lindell, as he was waiting for the green light, at 5 or 6 feet.Kopecky put plaintiff's automobile 'half a car length back' of the station wagon, and the front of the station wagon 5 to 10 feet north of the north line of Lindell, as the cars were waiting at the stop.Plaintiff estimated the distance his Ford traveled from his stopped position to the point of impact at from 12 to 15 feet.Kopecky judged this distance to be 'a car length and a half,' and estimated a car's length at 17 to 18 feet.Plaintiff's evidence as to the length of plaintiff's run thus varied from 12 to 27 feet.The bus driver did not blow the horn.The impact turned plaintiff's Ford abruptly from its southwest course, and threw it to the right, in the same direction the bus was going.It came to a stop faced west.The bus traveled about 15 or 20 feet, plaintiff's Ford 10 or 12 feet, after the collision.Plaintiff testified that his maximum speed before the collision was 5 m. p. h.; that he was traveling 'not more than five miles an hour'; that he could stop his Ford under the existing conditions at 5 m. p. h. in about 8 feet.Kopecky gave as his opinion that at the time the bus passed the front of the station wagon the speed of the bus was between 20 and 25 m. p. h. A traffic expert testified that at 15 m. p. h. a vehicle travels approximately 21 feet per second; that at 20 m. p. h. it travels 29 feet per second; and that at 25 m. p. h. it travels about 37 feet per second.

Defendant's defense on the merits consisted solely of the testimony of the bus driver, as follows: The bus approached the intersection in the lane nearest the north line of Lindell, at a speed of approximately 15 m. p. h. The electric signals governing westbound Lindell traffic were on green, and the signal on the northeast corner was green when the bus passed that point.When the front of the bus got 'practically even' with or perhaps 2 feet east of the signal on the north island the green turned to amber.The speeed of the bus then was about 15 m. p. h. As the light turned amber the bus proceeded on through the intersection of Lindel with southbound DeBaliviere, and while crossing the intersection the bus drived observed traffic, sitting still, in the western segment of DeBaliviere.He saw that there were two cars in the middle lane, and about four cars in the west or curb lane.Plaintiff's automobile was in the west...