Opinion
No. 27979.
December 19, 1950. Rehearing Denied January 19, 1951.
APPEAL FROM THE CITY OF ST. LOUIS CIRCUIT COURT, MICHAEL J. SCOTT, J.
Thompson, Mitchell, Thompson Douglas and James P. Brown, all of St. Louis, for appellant.
Keegan Rickhoff, Gregg W. Keegan, all of St. Louis, Mo., Orville Richardson, St. Louis, of counsel, for respondent.
This is a suit for personal injuries, property damage and loss of consortium arising out of a collision between plaintiff's automobile and defendant's streetcar on October 6, 1948 in St. Louis, Missouri. Plaintiff submitted his case to the jury on a humanitarian instruction which predicated liability on three assignments of negligence, joined in the disjunctive: (1) failure to stop the streetcar; (2) failure to slacken the speed thereof; or (3) failure to sound a warning of the approach, movement and proximity of the streetcar. The jury returned a verdict for the plaintiff in the sum of $7,000 and the defendant has appealed to this court on the ground that there was no evidence from which the jury could find that the proximate cause of the collision was defendant's failure to give a timely warning or defendant's failure to slacken speed.
Since the three assignments of humanitarian negligence were submitted in the disjunctive, the verdict cannot stand if evidence in support of any one of the assignments is lacking. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, 542.
On this review we are obliged to consider the evidence together with the inferences which could reasonably be drawn therefrom in the light most favorable to the plaintiff. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935.
The collision occurred at the intersection of Broadway and Itaska Street. At that point Broadway runs northeast and southwest and Itaska runs west from Broadway. A few feet west of the west line of Broadway Oregon, a north and south street, intersects Itaska. For the purposes of this opinion we will regard Broadway as a north and south street. Broadway is 55 feet wide and contains a double set of streetcar tracks with safety zones for both north and southbound streetcar passengers. The safety zone for southbound traffic is 85 feet long and runs north from a point 10 feet north of the north line of Itaska Street. Itaska Street is 40 feet wide. Approaching the intersection from the north there is a slight downgrade: one-half foot decline per 100 feet lineal distance.
The weather was "fine", the sun shining, the streets dry. The collision occurred around 3:00 or 3:30 o'clock p. m.
Plaintiff's evidence indicated that plaintiff, 68 years of age, accompanied by his wife, drove his 1940 Chevrolet Sedan north on Broadway on the portion of the street between the northbound streetcar tracks and the east curb until he reached a point one-half block south of the point of collision. At that time he extended his left hand to indicate he was going to turn from the east lane of the street to the northbound tracks, moved over to the left and onto them, intending to turn to the left into Itaska Street and then proceed north into Oregon Avenue. As plaintiff was "coming up to the safety zone in the northbound tracks" south of Itaska at a speed of 10 to 15 miles per hour he, for the first time, saw a streetcar and automobile, both southbound, the streetcar "coming over the top of the hill from Mount Pleasant" (the first street north of Itaska) "about 200 or 250 feet up from there." The automobile was "slightly ahead of the streetcar" and they were "coming pretty fast," the automobile traveling "a little bit faster than the streetcar was at that time." He did not know "what their speedometer would show." He was "watching my (his) own business." (Parentheses ours). Plaintiff coasted up to the middle of Itaska "just slightly rolling," going so slowly "the automobile stopped itself." Plaintiff's automobile came to a stop headed northwest with the left front wheel over the east rail of the southbound streetcar tracks, and the right front wheel in the "devil's strip" between the two sets of car tracks. When he stopped his front wheels were just about the center of Itaska Street. When he stopped plaintiff saw the streetcar which at that time was "about 150 or 175 foot up the street." At that time there were six or eight people standing in the safety zone for southbound streetcars "waiting to get on the streetcar." The last time plaintiff saw the streetcar it was "about 150 to 175 foot up the track" and at that time plaintiff was "just almost stopped." At the time plaintiff's automobile came to a stop the southbound automobile "must have been 100 foot up, where the streetcar was 140 or 150 feet" up the street. At that time the automobile was traveling about 30 miles an hour and the streetcar was going about the same speed, according to the plaintiff. Plaintiff testified that he did not move a wheel; that the southbound automobile went by him; that he "looked over the back end of the automobile to see if there was anything coming down from the corner while I was standing there, and I was ready to start out, and just as I got ready to begin, the streetcar hit us" while his automobile was standing still. Plaintiff did not move his automobile. It was standing perfectly still "all the time." Plaintiff testified that he "never paid no more attention to the streetcar after it was about 150 foot up the street" and that he did not know how fast the streetcar was traveling when the collision occurred; that he did not see the streetcar from the time it was at the north end of the safety zone; that he did not see the streetcar as it passed the people who were standing in the safety zone waiting to board the southbound streetcar; that he was looking "all the time" at the southbound automobile "coming by."
Plaintiff did not see the streetcar stop at any time as it came to the safety zone or before the collision nor did he hear the streetcar sound a bell at any time. Other witnesses for the plaintiff testified definitely that the streetcar did not stop at Itaska for the people waiting in the safety zone but went through the safety zone and intersection without stopping and that no bell or signal was sounded. Plaintiff's witness, Virginia Ann Foster, testified that when plaintiff's automobile started to make the turn to go west on Itaska the streetcar was "half way up Broadway, half way between Itaska and the street north of Itaska." His witness Leonard Lewis, a passenger on the streetcar, testified that at the time of the crash the streetcar was traveling 25 miles per hour and on cross-examination stated that on direct examination he had said the streetcar was traveling "20 or 25 miles an hour" and that "it could have been going slower than that."
Plaintiff's evidence further showed that a 1500 type streetcar, such as the one involved in the collision, has three sets of brakes and that traveling on level ground can be brought to a stop with safety to the operator and passengers within 55 to 60 feet traveling at 20 miles an hour, and within 100 to 120 feet travelling at 30 miles an hour; that the slight downgrade at the point of this collision would add 2 or 3 feet to the stopping distance; that at 20 miles per hour it would take "about two seconds" plus reaction time of "about" one-fourth of a second to stop the streetcar after the operator is "confronted with an emergency, that is, from the time you applied your brakes"; that during the reaction time of one-fourth second the streetcar would travel approximately 7 1/2 feet; that at 20 miles an hour the car travels 30 feet per second; that "reactionary time" is that period between the time the operator "saw something" and the time he "acted"; that the streetcar would not be traveling 30 feet per second during the last second "because you should have something done towards stopping it."
The witnesses for the defendant gave the following version of the facts: that there was no person standing in the safety zone; that the streetcar made a stop at the zone to discharge a passenger; that the streetcar started up, increased its speed to 20 miles per hour; that when the streetcar was "about even with the south curb of Itaska" the operator first noticed plaintiff's automobile, which was then about 20 feet south of the streetcar; that "all of a sudden" plaintiff started to turn his wheels onto the southbound tracks; that this occurred when the vehicles were from 8 to 10 feet apart; that the collision occurred about 10 feet south of the south line of Itaska Street; that as soon as the motorman saw the wheels turn he threw on his brakes, and the accident happened immediately thereafter; that it was a head-on collision. The motorman testified that traveling at 20 miles an hour 90 feet was the shortest distance in which he could bring the streetcar to a stop with safety to himself and passengers.
Defendant asserts that it was error to submit failure to warn in plaintiff's humanitarian instruction No. 1 because there was no evidence from which the jury could find that the failure to sound a warning was the proximate cause of the collision; that the sounding of a bell could not have been effective to avoid the collision because the plaintiff was aware of the approach of the streetcar; that a warning could only give plaintiff notice of the approach of the streetcar, a fact of which plaintiff was not oblivious.
The force of this argument, however, is offset by the plaintiff's testimony that after seeing the streetcar 150 to 175 feet north of and approaching him he paid no further attention to it but concentrated his attention on the southbound automobile. This evidence, and the evidence that when he last saw the streetcar it was approaching a safety zone in which six or eight people were waiting to board the streetcar, coupled with the fact that he heard no bell or warning signal, gave the jury a proper basis to conclude that plaintiff had a right to assume that the defendant's motorman would stop the streetcar to take on passengers; that although he had original notice of the approach of the streetcar, plaintiff was justified in turning his attention to the southbound automobile, and that plaintiff was thereafter oblivious to the danger of a collision with the streetcar. See McNulty v. St. Louis Public Service Co., Mo.App., 60 S.W.2d 701. The right to assume that the streetcar would stop to receive persons standing at a regular streetcar stop and to rely on the sounding of a warning going, if the motorman intended to continue his journey without interruption, so as to afford the plaintiff an opportunity to get out of the way of the approaching streetcar was accorded the plaintiff in Bosley v. Wells, Mo. App., 260 S.W. 125, to which reference is made for a statement of the principle.
The case of Pentecost v. St. Louis Merchants' Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533, cited by defendant, is not persuasive in this situation. In that case after the locomotive appeared, plaintiff was at all times looking directly at it; he was not oblivious. There was nothing to divert his attention; he was as aware of his danger as he would have been had the engineer blasted the whistle continuously.
The case of Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, cited by defendant, is distinguishable on the facts. In that case the driver of the vehicle approaching the railroad tracks was not shown ever to have been aware of the approach of the locomotive. The record indicated that he was in fact oblivious to the approach of the train.
In the case at bar, although plaintiff had a general awareness of the approach of the streetcar, there was evidence upon which the jury properly could find that he was not aware of the danger from the approach of the oncoming streetcar. This vital difference has been recognized in the decided cases. Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 336; Diel v. St. Louis Public Service Co., 238 Mo.App. 1046, 192 S.W.2d 608, 611. In this case the jury properly could find that plaintiff was oblivious to the danger of collision at all times after the streetcar arrived at a point 150 to 175 feet north of the place where plaintiff's automobile stopped on defendant's tracks. From that moment plaintiff was in a position of imminent and discoverable peril of which he was oblivious. At that moment it became the duty of defendant to employ any and all means at hand to avoid injuring him. This duty included that of warning plaintiff of his danger.
Defendant further contends that there was no evidence that plaintiff could have escaped injury if a warning had been given, and that the jury would have to indulge in speculation and conjecture to so find. This argument is based on defendant's understanding that "the duty to warn began when the streetcar could not stop and thereby avoid the accident," but as we have pointed out, the duty to warn in this particular case commenced when plaintiff's automobile stopped on defendant's southbound tracks 150 to 175 feet in front of the oncoming streetcar. If at that moment the motorman had observed plaintiff's automobile, realized the danger of collision and acted promptly to signal his approach, it would have taken, according to plaintiff's evidence, one-fourth second for him to react and sound the bell. Taking the distance most favorable to plaintiff (175 feet) and the most favorable speed (20 miles per hour) the streetcar would have traveled 7.3 feet during that one-fourth second, and it would have taken 5.7 seconds for the streetcar to travel the remaining 167.7 feet. If the jury concluded that the collision occurred approximately 5.9 seconds after the time the plaintiff's automobile stopped on the tracks, and approximately 5.7 seconds after the warning could have been given which under plaintiff's evidence it could do, the question remains whether plaintiff within the 5.7 seconds after the sounding of the warning bell could have extricated himself from his perilous position. To do so he would have had the alternative of backing his automobile 3 or 4 feet off the track and out of the reach of the overhand of the streetcar, or opening his door, abandoning the automobile, and running or jumping to a place of safety out of the path of the colliding vehicles. He could not have moved forward because the southbound automobile would have been directly in his path. There was no direct evidence of the time within which plaintiff could have accomplished either of these means of escape. Where the evidence offered by the plaintiff on the issue of extricability amounts to nothing more than speculation, guess and uncertainty, a submissible case upon the issue of failure to warn under the humanitarian doctrine is not made. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Smith v. Siedhoff, Mo. Sup., 209 S.W.2d 233, 237.
Was it a case for the jury without "expert evidence" of the time it would require to back or abandon the automobile?
In Fair v. Thompson, Mo.App., 212 S.W.2d 923, a period of 14 seconds elapsed from the time the automobile stopped on the crossing until the collision occurred and the court held that a submissible case under the humanitarian doctrine on failure to warn was made.
In Hunter v. Fleming, Mo.App., 7 S.W.2d 749, where 10 seconds' time expired between the time the streetcar was first observed by the plaintiff, who was a guest in an automobile stalled on the streetcar track, and the time of the collision, the court held, in a case submitted on the humanitarian theory for failure to stop, that there was no merit in the contention that as a matter of law plaintiff should have alighted from the automobile.
In Rentfrow v. Thompson, 348 Mo. 970, 156 S.W.2d 700, a truck was stalled on a railroad crossing. It first emerged into view when the locomotive was 500 feet from the crossing. The evidence showed that the whistle could have been sounded in less than one second's time. The court said, 156 S.W.2d loc. cit. 704: "The engineer, therefore, had he looked at the first opportunity could have and would have seen the truck stalled on the track * * *. Thereafter he had a period of something over eight seconds within which to warn the deceased of the approach and proximity of the train. According to his own admission his hand was then resting upon the whistle cord, and he could have sounded the whistle in less than one second's time. But plaintiff's evidence tends to show that no warning was given until the engine was within fifty feet of the stalled truck. It is apparent, then, that taking the plaintiffs' evidence as true, as we must upon a request for a directed verdict, the cause was properly submitted on the humanitarian doctrine."
In Ramel v. Kansas City Public Service Co., Mo.App., 187 S.W.2d 492, an automobile stopped on a streetcar track where it stood for three or four seconds before a collision, and the case was submitted on the humanitarian doctrine for failure to stop or slow down. The court rejected the contention that in three or four seconds' time and with an open way before him plaintiff could have "instantly moved off" the track, and held that it was a question for the jury whether plaintiff was at that time in a position of inescapable peril.
In Smith v. Siedhoff, supra, plaintiff had "only a moment or two of time" and in Kirkpatrick v. Wabash R. Co., supra, plaintiff had only "a second or two" between the time the duty to warn arose and the casualty occurred.
In the case at bar while the time to extricate himself approaches the practical minimum, we cannot rule as a matter of law that the plaintiff could not have extricated himself from his position of imminent peril if a timely notice had been given by the defendant's motorman. We rule that it was a question for the jury to determine whether within the limitations of time and distance revealed in the evidence such warning would have effectively avoided a collision. Adams v. St. Louis Public Service Co., Mo.App., 32 S.W.2d 100.
Defendant also contends that there was insufficient evidence to support the failure-to-slacken-speed assignment of humanitarian negligence. Plaintiff testified that at the time the southbound car cleared his path he was "ready to go", from which the jury properly could infer that his car was in low gear and that upon engaging his clutch he could move forward promptly. There was evidence in the record that the streetcar, moving at 20 miles per hour, could have been stopped upon the appearance of danger, within 70.5 feet distance, taking into consideration the grade and reaction time, and within two and one-fourth seconds' time. It is a logical deduction that if the streetcar could have been stopped within that time its speed could have been slackened to that of barely perceptible forward motion within the same period of time. If the operator had reduced the speed within that distance and time to let us say 5 miles per hour, the time period between the time the peril arose and the time the collision occurred would have been extended to approximately 14 seconds, from which the jury could have found that plaintiff could extricate himself by either moving forward a distance of 13 feet (the southbound automobile having passed by) or by backing off the track a distance of approximately 3 or 4 feet, and thereby have avoided the collision. In a very similar situation, in State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864, loc. cit. 867, the Supreme Court said: "If the motorman had slackened the speed of his car to 10 miles an hour or less, as the evidence amply shows he could have done, plaintiff would have had twelve or more seconds to perform the simple and almost instantaneous act of backing the truck the short distance necessary to clear the approaching car. The circumstances embrace matters of such common knowledge that they speak for themselves without the aid of opinion evidence, and we think it cannot be said that there was no evidence from which the jury might not properly have found that the motorman's failure to slacken the speed of the car was a proximate cause of the collision."
The jury, therefore, properly could have found for the plaintiff on the theory of failure to slacken speed.
It follows that the judgment rendered by the circuit court should be affirmed, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.