Opinion
No. 28302.
May 20, 1952. Rehearing Denied June 27, 1952.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WILLIAM S. CONNOR, J.
Carroll J. Donohue, and Salkey Jones, all of St. Louis, L. F. Stephens, St. Louis, of counsel, for appellant.
Hullverson Richardson, St. Louis, for respondent.
This is an action for damages arising out of personal injuries suffered by the plaintiff when an automobile in which she was a passenger was struck by one of defendant's streetcars. In addition to other assignments of negligence in the plaintiff's petition, there was alleged a violation of an ordinance of the City of St. Louis which requires the operator of a streetcar to keep a vigilant watch for all vehicles and persons approaching the track and to stop the car on the first appearance of danger. The case was, however, submitted solely on the alleged failure of the operator to take appropriate action to avoid a collision as required under the humanitarian doctrine.
The trial resulted in a verdict and judgment in the sum of three thousand dollars in favor of the plaintiff, and the defendant has appealed.
The plaintiff was thirty-nine years old and was married to Robert Banks. She worked as a dishwasher in a restaurant earning $29 a week. Her husband's cousin, Daniel Sanders, worked in the same restaurant as a bus boy. At about 9:00 p. m., on March 17, 1950, after their day's work, Mrs. Banks and Sanders were waiting for a bus on Sarah Street with the intention of riding home. Robert Banks drove his 1939 Plymouth coupe by the restaurant where his wife and cousin were employed and picked them both up at the nearby bus stop. Mrs. Banks sat next to her husband and Sanders next to her on her right. Banks then drove east to Beaumont Avenue and there turned north in the direction of Olive Street. Olive Street runs east and west and is 75 feet wide where it is intersected by Beaumont Avenue, which runs north and south and is 25 feet wide.
Plaintiff testified that she was not paying much attention to traffic but that her husband stopped his automobile about 3 feet south of a stop sign that faces northbound traffic on Beaumont Avenue at the intersection. She said that she looked west and saw some lights quite a distance away, but she saw nothing toward the east. She did not see the westbound streetcar coming from the east at any time except for the glare of its light just as it hit the automobile in which she was riding.
Sanders' testimony was about the same except that he said the automobile was veering toward the left and traveling at about 15 or 20 miles an hour as it crossed Olive Street. The streetcar was about a foot from the automobile when he saw it. Neither the plaintiff nor Sanders heard a gong sounded.
Banks testified that he made a stop at the stop sign and looked both east and west. He saw a streetcar three-fourths of a block away and automobiles approaching at some distance from the west. He then started across the intersection and was going at the rate of about 12 miles an hour when he reached the eastbound streetcar tracks. Then he saw the streetcar 40 or 50 feet away, traveling toward him on the westbound tracks at the rate of about 15 to 18 miles an hour. He said that he then tried to speed up his automobile but "it seemed not to pick up". He turned to the left and would have required about 4 more feet of travel to have cleared the westbound track when the automobile was struck. The impact knocked the car to the north curb of Olive Street and it was facing east as it came to rest. He said that he could have stopped the automobile in 15 feet. Shortly prior to the accident he had taken his car from a repair shop where a new motor had been installed in it and the brakes were in good condition.
An expert witness testified on behalf of the plaintiff that the type of streetcar involved in the accident could be stopped in a distance of 30 or 35 feet from a speed of 18 to 20 miles an hour.
Plaintiff was unconscious immediately after the collision but regained consciousness when the police arrived and were putting her in their automobile to take her to the hospital. Four of her ribs were fractured and she had a swelling on her forehead. She complained of injury to her left shoulder and stated that she suffered a miscarriage.
Plaintiff's attending physician testified but his testimony will be discussed with a point raised in relation to it. Her evidence was concluded by her counsel reading the vigilant watch ordinance.
Defendant called its operator who testified that as the streetcar approached the intersection of Beaumont Avenue it was traveling at a rate of about 25 miles an hour, and when it was about 60 feet east of the intersection an automobile came into the intersection going in a northerly direction. According to this witness he then slowed the streetcar to a speed of about 15 miles an hour and the automobile that he saw enter the intersection came to a stop. At that time he accelerated the speed of the streetcar and was about at the intersection when the Plymouth in which the plaintiff was riding pulled around the automobile which had stopped. He said the Plymouth was traveling at the rate of about 35 miles an hour and did not swerve or slow down before the collision. He also said that he applied the emergency brake as soon as he saw the automobile in which the plaintiff was a passenger.
Several streetcar passengers were witnesses on behalf of the defendant, but their point of vision and recollection of the collision gave a variance to their testimony and added but little to the evidence otherwise adduced.
In appealing from the verdict and judgment on the above evidence the defendant first asserts that the jury was erroneously instructed. The plaintiff's main verdict-directing instruction is said to improperly broaden the zone of peril, and the part of the instruction against which the complaint is leveled is as follows:
"The Court instructs the jury that if you find and believe from the evidence that on the occasion in question the defendant St. Louis Public Service Company was in control of and operating by and through its motorman a street car westwardly along Olive Street, and if you further find from the evidence that the automobile in which plaintiff was riding was being operated northwardly across Olive Street and on the defendant's tracks there, if you so find, and if you further find that the defendant's aforesaid street car was then and there approaching said place, and that the automobile in which plaintiff was riding and the plaintiff therein then and there became and were in a position of imminent peril of being collided with by said street car, and if you further find that the motorman in charge of and operating the street car, if you so find, saw, or by the exercise of ordinary care by keeping a vigilant watch would have seen, said automobile with plaintiff therein in said situation of imminent peril, if you so find that they were, in time for the motorman thereafter, by the exercise of ordinary care, with the means and appliances then at hand, and with reasonable safety to said street car and its occupants, to have stopped the said street car, slackened the speed thereof, and sounded a warning of its approach, proximity, and movement, and thus and thereby have avoided the collision with said automobile, * * *".
The phrase which requires the jury to find that the automobile in which the plaintiff was riding "was being operated northwardly across Olive Street and on the defendant's tracks there" is said by the appellant to erroneously extend the zone of peril.
We stated in Larkin v. Wells, Mo.App., 278 S.W. 1087, 1088:
"plaintiff entered the danger zone at the moment he approached so near the point of collision and under such conditions that it was, or should have been, apparent to the motorman that he would not or could not stop his automobile before going upon the track."
Certainly, if Banks could have stopped his automobile in fifteen feet at the rate of speed he was traveling, as he said he could, he was not in a position of imminent peril upon entering the intersection and starting northwardly across Olive Street. He was not obvious to the approach of the streetcar which he had seen and his automobile did not reach the zone of imminent peril until he could not stop or turn it in time to avert a collision.
The respondent contends that the instruction is sufficient under the cases of Harrington v. Thompson, Mo.Sup., 243 S.W.2d 519; Hillhouse v. Thompson, Mo. Sup., 243 S.W.2d 531; Newman v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 45; Perkins v. Terminal R. Ass'n, 340 Mo. 868, 102 S.W.2d 915. All of these however, deal with an obvious approach to the track of an on-coming railroad train except the Newman case, which has to do with an obviously oblivious pedestrian approaching a streetcar track. In Perkins v. Terminal R. Ass'n the Supreme Court pointed out the distinction between railway crossing cases and those cases involving a motor vehicle entering a street intersection. The zone of peril in such cases is a narrow one, for where the driver of an automobile is not oblivious and has the means at hand to avert a collision the defendant is under no duty to act under the humanitarian doctrine until it becomes, or should upon proper watch become, apparent that the automobile is not going to stop before going upon the tracks. Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Smithers v. Braker, 341 Mo. 1017, 111 S.W.2d 47; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33; Cable v. Chicago, B. Q. R. Co., 361 Mo. 766, 236 S.W.2d 328. Since the words "northwardly across Olive Street" unduly extended the zone of peril they are erroneous and they are not aided by the added words "and on the defendant's tracks there", for there is no evidence that the defendant's operator could have acted in time to have averted the collision after the automobile was upon the track.
It is also contended that the instruction is erroneous because it uses the words "vigilant watch". It is true that these words may not impose any greater duty than the lookout required by common law at a busy city street intersection. Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000; Heigold v. United Railways Co., 308 Mo. 142, 271 S.W. 773; Kinlen v. Metropolitan Street Ry. Co., 216 Mo. 145, 115 S.W. 523. But the "vigilant watch" ordinance requires the operator of a streetcar to act upon the first appearance of danger and that imposes upon him a higher duty than that required under the humanitarian doctrine. State exrel. Vogt v. Reynolds, 295 Mo. 375, 244 S.W. 929; Campbell v. St. Louis Public Service Co., Mo.App., 35 S.W.2d 49. Where, as here, the vigilant watch ordinance is read to the jury and the words "vigilant watch" are used in the humanitarian instruction they may well have conveyed to the jury the idea that the duty of the defendant was as great as that imposed by the ordinance. This is particularly true since no withdrawal instruction was given as to the negligence charged under the vigilant watch ordinance. These words were erroneously used and upon retrial they should be omitted.
It is also maintained that the trial court erred in permitting plaintiff's attorney to read to the jury a letter from the plaintiff to her doctor, requesting that her hospital file be made available to the Transit Casualty Company. No objection was made to the letter until after it was read. It was incumbent upon the attorney for the defendant to have objected when plaintiff's counsel announced his intention to read it. To do otherwise invites error, and since the objection was not made in time it was waived. Cheffer v. Eagle Discount Stamp Co., 348 Mo. 1023, 156 S.W.2d 591. However, the letter is entirely irrelevant as it goes to no issue in the case and it should have been excluded upon proper objection.
Defendant also charges that error was committed during the argument of plaintiff's counsel. The record as to the part deemed by the defendant to be objectionable is as follows:
"And another thing I think you ought to consider is that today we are dealing in the twenty cent dollar. They are not the kind of a dollar we used to think about.
"Mr. O'Brien: I will object to that, Your Honor, there is no evidence to support that.
"Mr. Hullverson: Well we have some latitude. People know what the value of money is today. You know what to do when you go to a grocery store, or to buy a suit of clothes, the kind you used to get a few years ago for twenty-two or twenty-five dollars is now sixty-five dollars. A person knows when they go to a grocery store to get a piece of steak, they think is worth thirty-five cents, they pay a dollar and a quarter a pound, we don't have to be told those things, but after all that is the sort of dollars we are dealing with."
It will be seen that there was no ruling upon the objection and neither did the defendant preserve any point in relation to the argument in its motion for a new trial. But since the same argument may be made upon a retrial of the case, it should be said that the statement was not beyond the latitude allowed counsel. The courts take judicial notice of the declining purchasing power of the dollar and counsel may in argument direct the jury's attention to the fact that the dollar buys less than it formerly did. The point was neither properly raised nor well taken, and this is particularly true since such a statement could only bear upon the size of the verdict, and there is no contention that it was excessive.
The plaintiff's attending physician testified that the plaintiff suffered a cerebral concussion and the defendant apparently contends that the medical testimony was too extended on the general effects of brain concussions, but we are not directed to the particular testimony which is considered objectionable. It certainly cannot be contended that it was error to allow the physician to explain what a concussion is and what the result of it may be in the particular case; so there need be no further discussion of the point, as the medical testimony may be held within these bounds upon retrial.
Another portion of the medical testimony to which objection is taken was the statement of the doctor in relation to a miscarriage plaintiff claimed to have had as a result of the accident. Since the plaintiff had been permitted, without objection, to testify that she had a miscarriage we fail to see how the doctor's testimony, which merely stated he found certain signs indicating a miscarriage, could have been erroneously admitted, as it was in corroboration of that which had already been admitted in the testimony without objection.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be reversed and the cause remanded for a new trial.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the Court.
The judgment of the circuit court is accordingly reversed and the cause remanded for a new trial.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.