Opinion
No. 28483.
December 16, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
Evans Dixon, Wm. W. Evans and John F. Evans, St. Louis, for appellant.
Lloyd E: Boas and Joseph Catanzaro, St. Louis, for respondent.
Action for damages brought by Laura Evelyn Wirth against St. Louis County Transit Company and Elmer Hudson to recover for personal injuries sustained by plaintiff, a passenger on a transit company bus, in a collision between the bus and a Chevrolet automobile driven by the individual defendant. The transit company has appealed from a $5,000 judgment against both defendants. Elmer Hudson did not appeal.
The collision occurred on August 16, 1947 at about 9 o'clock p. m. It was dark. Headlights on the vehicles were burning. A westbound transit company bus collided with an eastbound Chevrolet driven by Elmer Hudson at about the 7000 block on Natural Bridge Road, a 6-lane concrete trafficway in the northwestern section of the St. Louis metropolitan area. Each of the six lanes was 10 feet in width. Three hundred feet to the east of the point of collision a "dream home" was on display and a street dance was in progress on a platform in a vacant lot across the street. There were "a lot of people" around there. The north lane on Natural Bridge was occupied by intermittently parked automobiles. The next lane carried vehicles moving from 15-20 miles per hour. Most of the through westbound traffic was using the third lane, which was next to the center line of Natural Bridge.
All of the details relating to the speed and movement of the vehicles leading up to the collision were related by Elmer Hudson, Clarence Turner, driver of the westbound bus, and Eugene Borgschulte, driver of an eastbound Chrysler which was following the Chevrolet. All three of these witnesses fixed the speed of the bus at between 25-30 miles per hour. The left front portions of the bus and Chevrolet came together in a head-on collision.
Co-defendant Hudson, called as a witness for plaintiff, testified that he was driving his Chevrolet eastbound on Natural Bridge following a large truck; that there was a lane of parked cars to his right and a lane of eastbound traffic to his left; that he waited until the traffic to his left cleared up so that he could pass the truck; that when the traffic to his left cleared up somewhat he drove into the lane next to the center line and started around the truck; that at that time he did not see the bus approaching from the opposite direction because the street turns a little at that point; that just as the front wheels of his automobile reached a point alongside the rear wheels of the truck his wife warned him to look out for the bus; that he looked up and saw the bus when the bus was 25-30 feet from him; that the bus was operating in the center lane and the driver of the bus had his head turned looking to the north, watching a machine to the right of the bus; that the bus driver continued to do that until the collision occurred; that when Hudson attempted to pass the truck it dropped out to its left "to go around something," then turned back in; that the bus was traveling in heavy traffic and was zigzagging; that the bus driver at no time looked toward Hudson's automobile; that Hudson slapped on his brakes at the same time he saw the bus coming toward him; that his car was near a dead stop when the collision occurred; that the Chevrolet he was driving never did get north of the center line of Natural Bridge Road but at all times was on its right of the center line; that the bus zigzagged and its left front corner caught Hudson's fender; that the collision occurred while the Chevrolet was in the center lane going east; that the time the collision actually occurred the wheels of the bus were turned all the way to the left.
The bus operator, Clarence Turner, called as a witness for plaintiff, testified that he was driving west on Natural Bridge at a speed of 25-30 miles per hour and was traveling at the same speed when the collision occurred; that the left side of his bus was 1 1/2 or 2 feet from the center line of the street as he was traveling west prior to the accident; that he had been operating his bus in the lane next to the center line for about three blocks; that other vehicles were traveling 15-20 miles per hour in the center lane for westbound traffic; that he did not know how many vehicles he had passed but that he was getting ready to go back into the center lane as soon as the opportunity presented itself; that at the time of the collision there was an automobile to his right, the front end of which was 2-3 feet from the rear end of the 20-foot bus; that when he saw the Chevrolet he automatically swerved and glanced to his right to see if he had clearance to get the bus over to avoid the collision; that it was then that he saw the automobile 2-3 feet from the back of the bus; that the collision occurred immediately after he turned his head and saw that; that the left side of the truck which was approaching from the opposite direction was about 1 1/2 or 2 feet from the center line of the highway; that he did not see the Chevrolet until it was just a few feet from the rear end of the truck, which was traveling about 25 miles per hour; that he first saw the Chevrolet when the front end of the bus was about 8 feet from the rear end of the truck and the Chevrolet was approximately 11 feet behind the truck; that when his bus was at that point the Chevrolet suddenly came from behind the truck across the center line and directly in front of the bus; that the Chevrolet was traveling about 25 miles per hour; that his first reaction was to swerve the wheel to the right, which he did, applying the brakes at the same time and glancing to the right quickly to see if he had clearance at that side; that he managed to swerve a short distance, some 3-4 feet, to the north (his right); that the left corner of the bus struck the automobile; that the collision occurred within about 1/3 second after he saw the Chevrolet; that at no time did his wheels cross the center line until after the accident; that the front wheels of the bus locked hard to the left at the time of the collision; that following the collision the bus crossed the center line and swerved onto the south half of Natural Bridge; that after the bus came to a stop he made a statement to passengers in the bus that the steering apparatus locked.
Eugene Borgschulte, a witness for the transit company, testified that he was driving a Chrysler eastwardly on Natural Bridge Road following the Chevrolet, which was directly in front of him; that he was driving 4-5 feet from the center line of Natural Bridge; that he saw a truck operating eastwardly in the center lane; that the Chevrolet was 15-20 feet in back of the truck and that Borgschulte was operating his Chrysler about 30 feet to the rear of the Chevrolet: that prior to the collision the Chevrolet turned to the left over the center line; that at about that time he saw the bus, which was 5-6 feet from the back end of the truck; that the bus was from 4-7 feet north of the center line of Natural Bridge; that the collision occurred when the front of the Chevrolet was two-thirds of the way across the center line; that the bus went 8-10 feet from the point of impact and then cut across the road. On cross-examination the following questions were asked and answers given by the witness:
"Q. Now, as a matter of fact, Mr. Borgschulte, what you actually saw was this: You were driving along; you saw the Hudson car swerve to the left and at the same instant you saw the bus swerve to its left so they came together like that, with the bus going to its left and the Hudson car going to its left? A. That's right."
The witness admitted that he testified in a previous trial arising out of the same accident as follows:
"Q. Now when was it the bus made its first swerve that you described? A. Just as the cattle truck had passed it. The cattle truck had passed when he made a left turn trying to avoid this car because his front end was over too far from the right, right upon it and tried to clear it.
"Q. How far did he swerve to the left? A. Well, after the impact and everything half way across the line, facing left.
"Q. During that swerve how far did he swerve left trying to avoid the Hudson automobile? A. The impact happened right north of the line and wind up about 10 feet —
"Q. I am not making myself clear to you. At the time you first saw the bus traveling in the southernmost west bound lane — A. That is right.
"Q. And just a split instant after you saw it, it had begun to swerve to the left? A. That is right.
"Q. In an attempt to avoid Hudson's automobile? A. That is right.
* * * * * *
"Q. Then I understand your testimony the bus was traveling with its left side two or three feet north of the center line and it swerved four or five feet to the left which brings it across the center line? A. The front end was across, possibly the front end of the bus.
"Q. And then swerved back and that is when the accident happened? A. He didn't swerve back.
"Q. He never swerved to the right after he made this swerve to the left? A. The bus went on up with its two wheels making that abrupt left turn.
"Q. After the bus was making this swerve to the left to avoid Hudson's automobile, then the bus never swerved to the right again before the impact? A. No, sir."
Plaintiff's main verdict-directing Instruction No. 1, submitting the issues against the transit company, follows:
"The Court instructs the jury that the law imposes upon a public carrier the duty and obligation to exercise the highest degree of care to safely transport its passengers. You are, therefore, instructed that if you find and believe that on the occasion in question the plaintiff was a passenger on a bus owned by defendant, St. Louis County Transit Company, a corporation, operated westwardly on Natural Bridge Avenue, and if you find that at the time and place mentioned in the evidence said bus was operated at a speed of 25 to 30 miles per hour and it was caused and permitted to swerve violently to the left and into collision with an east bound automobile operated by the defendant Elmer Hudson, and if you further find and believe from the evidence that in so operating said bus, the operator thereof operated said bus at a speed which was high, dangerous and excessive under the traffic conditions and circumstances then and there existing, and that he failed to drive and operate said bus as near to the right hand side of the road as was practicable under the circumstances then and there existing, and if you further find in so operating said bus the operator thereof failed to exercise the highest degree of care and was negligent and that such negligence, if any, directly caused the collision mentioned in evidence, and if you further find that as a direct result of said collision the plaintiff sustained injuries, then your verdict should be in favor of the plaintiff and against the defendant St. Louis County Transit Company, a corporation."
On this appeal the transit company assigns the giving of the foregoing instruction as error for these reasons: (1) the instruction submits facts not supported by the evidence, namely, (a) that the bus swerved violently to the left and into collision with the eastbound automobile; (b) that the bus was operated at a high, dangerous and excessive rate of speed; (c) that the bus failed to keep as close to the right-hand side of the highway as practicable; and (2) the instruction fails to hypothesize sufficient facts to limit and guide the jury in determining the issues submitted and gives the jury a roving commission to speculate and make their own determination as to what conduct constituted negligence.
Viewing the evidence in the light most favorable to the prevailing party, and drawing all reasonable inferences therefrom in favor of plaintiff, we have concluded that sufficient facts were proved to support the giving of the instruction, in so far as (a) and (c), supra, are concerned.
That the bus swerved violently to the left was sufficiently established by the following testimony: that the bus was zigzagging; that the bus maintained a uniform speed of 25-35 miles per hour until the time of the collision; that the Chevrolet at no time was north of the center line but at all times was south thereof and that the Chevrolet was struck by the bus while the Chevrolet was in the center lane going east; that when the two vehicles were 25-30 feet short of collision the bus was on the north side of the center line and the impact occurred 1/3 second thereafter; that at the time the collision occurred the wheels of the bus were turned all of the way to the left; that the steering apparatus locked; that it "locked hard" to the left; that after the accident the bus wheels were turned toward the left; that the bus swerved or went to its left. The witness Borgschulte, at a previous trial, testified that the front end of the bus swerved 4-5 feet to the left, which brought it across the center line; that the front end of the bus was across the center line when the accident occurred, and that in making the abrupt turn the bus went up on its two wheels. While the witness Borgschulte sought to explain away and reconcile this testimony with other testimony given at the instant trial, he concluded by stating that his previous testimony was "right." It was for the jury to resolve the contradiction. Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, loc. cit. 778.
This same evidence made a submissible case on failure to drive as near to the right-hand side of the road as practicable.
As to speed, appellant contends that the speed of the bus could not have been the proximate cause of the collision, but there is no occasion for us to determine this question. Even if this were true it would not compel a reversal. Where two or more acts of negligence are submitted in the conjunctive the proof of any of such grounds is sufficient to authorize a verdict even though the evidence is insufficient to warrant the submission of the others. The jury having purported to find for plaintiff upon all grounds hypothesized, it necessarily found for her upon the ground supported in the evidence, and its purported finding upon an unsupported ground is harmless to defendant. Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; Lanasa v. Downey, Mo.App., 201 S.W.2d 179; Nixon v. Hill, 227 Mo. App. 312, 52 S.W.2d 208.
Attending now to the form of Instruction No. 1, appellant cites a number of cases in support of the proposition that insufficient evidentiary facts are hypothesized to justify an inference of negligent conduct or to provide the jury with a sufficient guide either as to excessive speed or as to failure to operate the bus as near the right-hand side of the road as practicable.
Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366; Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298; Ferdente v. St. Louis Public Service Co., Mo.Sup., 247 S.W.2d 773; Moss v. Stevens, Mo. Sup., 247 S.W.2d 782; Crites v. Bollinger, Mo.App., 238 S.W.2d 26.
We have concluded that the instruction is not subject to the objections raised. In submitting speed as a predicate of recovery plaintiff, as we have seen, was assuming an unnecessary burden, Webster v. International Shoe Co., Mo.App., 18 S.W.2d 131, but aside from this consideration, we find no error in the instant case in the form of the submission of speed as an act of negligence. The cases cited by appellant must be read in the light of the opinion in Knight v. Richey, Mo.Sup., 250 S.W.2d 972, 977, which holds that where there is no real conflict of the factual theories relating to the physical setting and circumstances of the collision relevant to the issue of speed, there is no real necessity of more particular hypothesis of the facts than a requirement that the jury find that at the time and place mentioned in evidence defendant negligently operated the vehicle driven a certain direction upon a certain street "at a rate of speed which was dangerous and excessive under the circumstances then and there existing". In the case at bar there were no real differences in the factual theories of plaintiff and appellant relating to traffic conditions, physical surroundings and circumstances then and there existing in so far as speed was concerned, so that there was no necessity of a more precise hypothesis as to speed than that employed in Instruction No. 1.
On the issue of negligence in failing to keep as near the right-hand side of the road as practicable, the findings required of the jury constituted a sufficient hypothesis of the ultimate issuable facts, and did not amount to the granting of a roving commission to the jury. Roberts v. Atlas Life Ins. Co., 236 Mo.App. 1162, 163 S.W.2d 369, loc.cit. 373. The words "as near to the right hand side of the road as was practicable" do not require definition or factual delineation. They are terms that no layman would misunderstand. See Wines v. Goodyear Tire Rubber Co., Mo.App., 246 S.W.2d 525,loc. cit. 531. The instruction contained a sufficient standard for the guidance of the jury in determining negligence vel non. Woods v. Moore, Mo.App., 48 S.W.2d 202, loc. cit. 205 [2].
No error appearing, the Commissioner recommends that the judgment be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.