Wilkerson v. St. Louis Public Service Co.
| Decision Date | 10 December 1951 |
| Docket Number | No. 42387,No. 1,42387,1 |
| Citation | 243 S.W.2d 953 |
| Parties | WILKERSON v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Edward W. Fredrickson, William L. Mason, Jr., St. Louis, for appellant.
Mattingly, Boas & Richards and Lioyd E. Boas, St. Louis, for respondent.
In this action plaintiff (appellant) sought damages in the sum of $30,000 for personal injuries sustained by her when she collided with the side of a streetcar operated by defendant in the City of St. Louis. At the close of her evidence, the trial court directed a verdict in favor of defendant. She appeals from the judgment entered in conformity with the verdict.
The sole question presented is whether a submissible case was made under the humanitarian doctrine by failure of the motorman to warn plaintiff of the approach of the streetcar after he could have seen she was oblivious of its approach and in a position of imminent peril.
The collision occurred at the intersection of Page Boulevard and the Hodiamont streetcar tracks at 8:00 a. m., on April 26, 1946, a clear day, as plaintiff walked eastward on the sidewalk on the south side of Page into the west side of the southbound streetcar.
Page Boulevard extends east and west and crosses the Hodiamont right-of-way and tracks at an approximate right angle. It is sixty feet wide, exclusive of sidewalks. The sidewalk on the south side of Page is twenty feet in width and covers the space between the south curbing and building line. A two story brick building, referred to in the evidence as a hardware store, is located at the southwest corner of the intersection of Page and the Hodiamont right-of-way. The Hodiamont tracks, as they cross Page, and for some distance north and south thereof, consist of two lines, the west line being used for southbound cars and the east line for northbound cars. The west rail of the west track is twelve feet, nine inches, from the east wall of the hardware store. The sidewalk extends eastward beyond the hardware store to within a few feet of the west rail of the west track, where it connects with asphalt paving covering the area on both sides of and between the tracks.
The unquestioned facts are: Plaintiff was about fifty-two years of age at the time she was injured, in good health, and her eyesight and hearing were good.
The streetcar with which plaintiff collided had stopped on the north side of Page to receive passengers and thereafter proceeded southward across the street to the point of collision, and stopped within its length after the collision. It was an 'old type' car, with a 'rounded nose'. Entrance doors were at the right front end, immediately back of the rounded front.
When plaintiff came to the northeast corner of the hardware store, she had a clear view of the tracks in both directions and a clear view of the approaching streetcar. She was familiar with the tracks and intended to cross over them for the purpose of boarding a northbound streetcar to Wellston. Walking directly forward, she collided with the rear portion of the entrance doors of the car as it passed the sidewalk along which she walked.
Plaintiff testified that as she passed the hardware store she was 'right close' to it, and as she came to its northeast corner she looked to her left (north), but did not see any streetcar, and then:
Upon further questioning, she testified that north was the 'first direction I looked, to try to see, was it anything coming from that direction so I could cross the street to get the county streetcar to go to Wellston'; but she did not immediately look south, as she had to go 'further down'; then when she 'stepped on down and started to cross the street', she turned her 'head this-away, that's all I know.' The record shows she then turned her head in demonstration of her testimony.
Thereafter, counsel for both parties and the court persistently and painstakingly undertook to develop the meaning of the foregoing statements. The substance of the testimony so developed was that when plaintiff was at the hardware store she looked north, walked toward the tracks, at some point turned her head to the south, and the collision occurred.
Plaintiff was permitted to leave the witness stand several times and undertake to demonstrate the meaning of her testimony, but the record does not reveal how she did so. As she was so demonstrating, her testimony many times repeated was substantially as given by these questions and answers:
Her further testimony was that she never saw the streetcar at any time and heard no gong or other warning; that after once turning her head to the right (south) she never thereafter looked in any other direction, and never stopped until the collision.
Helen Taber testified, on direct examination, that she saw a colored woman (plaintiff) as she walked slowly eastward on Page toward the streetcar; that plaintiff was looking over her right shoulder as she passed the hardware store and did not look ahead or to her left, did not change her speed, and walked into the back of the front doors of the streetcar after its front end had crossed her path, the front part of her body striking the streetcar.
On cross examination, this witness, after her memory was refreshed by a written statement given by her to defendant on April 19, 1946, changed her testimony to this extent: that she did not see plaintiff until plaintiff was 'about six feet or a couple of steps' from the streetcar, and that she had not seen plaintiff before that time; that she only saw plaintiff 'a second or two'; and that the streetcar 'was already in her (plaintiff's) path, had crossed her path' when the witness first saw her six...
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