Wofford v. St. Louis Public Service Co.

• Citation: 252 S.W.2d 529
• Decision Date: 10 November 1952
• Docket Number: No. 1,No. 42870,42870,1
• Parties: WOFFORD v. ST. LOUIS PUBLIC SERVICE CO
• Court: United States State Supreme Court of Missouri

Page 529

252 S.W.2d 529

WOFFORD v. ST. LOUIS PUBLIC SERVICE CO.

No. 42870.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1952.

Carroll J. Donohue, H. Jackson Daniel and Salkey & Jones, St. Louis, for appellant.

Barnhart & Wood, C. V. Barnhart, Marvin S. Wood and Robert D. Bransford, St. Louis, for respondent.

CONKLING, Judge.

Carrie Wofford, plaintiff, had judgment for $8,000 against St. Louis Public Service Company, defendant, in an action for damages for personal injuries which resulted from being struck by defendant's westbound motorbus when she was walking north across Market Street, between Garrison and Cardinal Streets, on October 27, 1950, in the City of St. Louis. Defendant has appealed.

It is here contended the lower court erred in submitting the case to the jury at all, and in the giving of instruction No. 2. Defendant also contends the judgment of $8,000 is excessive under the record facts as to the extent of plaintiff's injuries. Plaintiff submitted her case to the jury solely upon instruction 2, on the theory of a violation of the humanitarian doctrine in failing to stop the bus or failing to sound a warning of the dangerous proximity of the bus.

Stated most favorably to the judgment below, the jury could have found that in the late afternoon of the day in question, plaintiff, with her eight year old granddaughter walking on plaintiff's left, slightly in front of her and holding to plaintiff's left hand, started walking north across Market Street [an east and west street] at a point where Montrose Street intersects Market Street from the south; that Montrose does not extend north from Market Street; that before starting across Market plaintiff looked west and observed that all eastbound traffic on Market was held up by a traffic light at Compton, the next street west of Montrose; that plaintiff and her granddaughter walked north and across Market to the white centerline of Market where they stopped and were briefly held up by the flow of westbound vehicle traffic moving on the north side of Market;

That a westbound motor car moving in the southernmost lane for westbound traffic then stopped to permit plaintiff and the child to cross to the north in front of it. Plaintiff testified that the driver of that car 'beckoned for us to go on across, and then another car came up to the side of this other car and it stopped too. Q. Were those two cars at that time side by side? A. Side by side. Q. Both facing, facing the same way---- A. Both of them told me to go on across, so I did, and when I got to this second car, I started, and didn't stop, but I glanced [east] and I didn't see anything.' When plaintiff glanced east when in front of the second stopped car [which was a Ford car in the center lane of the westbound traffic] she saw 'about seventy five feet'; and there was no vehicle in the third and last westbound traffic lane within the distance she saw. Plaintiff then looked to the north and walked on north until both were struck by defendant's motorbus moving west in the third traffic lane and next to the north curb of Market. Her hearing was good but plaintiff heard no horn sounded by any vehicle prior to being struck. From a point in front of the motor car in the center lane plaintiff walked north about ten feet before being struck. When the bus stopped it was about 2 feet from the curb and plaintiff was on the street south of the bus and about halfway back, near its center; and she never saw or heard the bus before it struck her. Plaintiff was taken to a hospital, then to her doctor's office and then to her home.

Defendant's operator of the bus which struck plaintiff testified that the collision occurred close to dusk but that the bus lights were not on and were not then needed; that the traffic was heavy; that the bus was being operated westwardly about 2 feet south of the north curb of Market; that 'I noticed this Ford automobile [which was moving west in the center lane] start to slow down rapidly * * *. I saw he was going to stop * * *. I put on the brake, and I could see, I could see the danger there, so I applied the brakes, well, as much as I could to get the bus stopped as far as possible.' The jury could also have found from the operator's testimony that he saw plaintiff in front of his bus, but that when he first saw her she was 'about the left edge,' and in front of the left [south side of the Ford automobile]; and that he did not remember sounding his horn and plaintiff was struck by the left front corner of the bus. The bus operator further testified that at his operating position in the bus he could 'see over the top of automobiles that are ahead * * * or along the left side'; that the Ford car was moving west in the center lane and was west of the bus; that plaintiff was 'twenty to twenty-five feet' west of in front of the left [south] side of the Ford when he first saw her; that she was then moving toward the path of his bus and looking straight ahead [north]. As to the distance in which he could stop the bus, and allowing for reaction time, the operator testified: 'The speed I was going * * * safe stopping distance would be approximately forth five or fifty five feet.'

Defendant's brief first asserts that the facts of record, and the reasonable inferences to be drawn therefrom, are insufficient to warrant submission to a jury of the question of defendant's negligence in failure to warn or failure to stop.

As to defendant's just above contention, the jury could have found: that the bus operator could and did 'see over the top of automobiles that are ahead * * * or along the left side' and out in front of the Ford car; that by his own testimony the bus driver actually saw plaintiff when she was 20 to 25 feet west of and in front of the left side of the Ford automobile; that plaintiff, from that position, walked at least ten feet to the north before being struck by the left front corner of the bus; that plaintiff was looking 'straight ahead' toward the north curb of Market and moving toward and into the path of the on-coming bus and did not stop and, therefore, that she was in oblivious peril; that when the bus operator first saw plaintiff she was then not only in oblivious peril but that he realized she intended to proceed into the path of the bus; that under the bus operator's own testimony he 'could see the danger there'; that when plaintiff walking north 'got to [in front of the south side of] this second car' she looked east, and that in the third traffic lane [next to the curb] there was no car within 75 feet. The bus operator actually saw plaintiff when she was 20 to 25 feet in front of the Ford automobile looking north and moving north, and, so far as the operator saw, plaintiff never looked toward the bus.

From his testimony it was apparent to the operator that she was oblivious and unaware of the approaching bus. When the operator first saw her she was at least 10 feet from the place where she was struck. Under plaintiff's testimony she looked to the east 'when I got to this second car,' and the bus was then not in sight in the traffic lane next to the curb, and it was therefore more than 75 feet east of the point of impact. Plaintiff moved the last ten feet north to the point of impact at a walk. At the time she started to walk that distance the bus was more than 75 feet away to the east. Plaintiff's rate of walk does not appear but we judicially notice an adult pedestrian will walk from 2.9 to 4.4 feet feet per second. McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, 639, Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 792. The jury could therefore reasonably find that after the operator could have seen her in imminent peril plaintiff used an elapsed walking time of more than 2 seconds, during which, if a warning of the dangerous proximity of the bus had been sounded this adult plaintiff, moving at only a walk, could have stopped short of the path of the bus. 'The humanitarian doctrine calls into action every means at hand to prevent the threatened injury'. Todd v. St. Louis-San Francisco Ry. Co., Mo.Sup., 37 S.W.2d 557, 561, Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43.

It therefore follows from the above that, under these facts and the inferences reasonably to be drawn therefrom, plaintiff made a submissible case upon the theory of the failure to sound a warning. Althage v. People's Motorbus Co. of St. Louis, 320 Mo. 598, 8 S.W.2d 924, 926, Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142, Taylor v. Kelder, 229 Mo.App. 1117, 88 S.W.2d 436, Harrington v. Thompson, Mo.Sup., 243 S.W.2d 519, 523, Zumwalt v. Chicago & A. R. Co., Mo.Sup., 266 S.W. 717, Crane v. Sirkin & Needles Moving Co., Mo.App., 85 S.W.2d 911, 914, 915. The facts before us in this case very readily distinguish it from Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, where a five year old boy ran rapidly into a street and into the side of a passing motor vehicle.

As noted above, under the evidence in the case the jury could have found that when plaintiff's peril arose and was discoverable by defendant, the bus was at least more than 75 feet east of the point of impact, and, under the bus operator's...