Opinion
No. 28316.
September 16, 1952. Motion for Rehearing or for Transfer to Supreme Court Denied October 17, 1952.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, DAVID J. MURPHY, J.
Chopin Boisaubin, Alfred L. Boisaubin, St. Louis, for appellant.
Carroll J. Donohue, H. Jackson Daniel, Salkey Jones, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff (appellant) in a collision between his automobile and a streetcar owned and operated by defendant (respondent). We will refer to the parties as plaintiff and defendant. A trial in the Circuit Court resulted in a verdict in favor of the plaintiff for $5400. Defendant filed its motion for a new trial and for judgment in accordance with its motion for directed verdict filed in the course of the trial. The trial court sustained defendant's motion for judgment and overruled its motion for a new trial. From this judgment in favor of defendant, plaintiff has appealed.
Defendant's failure to stop or slacken the speed of the streetcar under the humanitarian rule was the basis of the negligence submitted to the jury under plaintiff's instructions. The jury was also required to find that the plaintiff was oblivious to the approach of defendant's streetcar. Obviously the trial court must have found that the evidence was insufficient to permit the case to be submitted to the jury under the humanitarian rule. It now becomes our duty to study the evidence and state the facts most favorable to plaintiff and to give to plaintiff such favorable inferences as may reasonably be drawn therefrom.
Plaintiff was operating his 1949 Oldsmobile automobile westwardly on Manchester Road in St. Louis County. Manchester Road, an east and west highway, at this point is sixty feet in width and has four lanes, with each lane fifteen feet in width. Defendant's streetcar was being operated southwardly along the Kirkwood right-of-way which intersects Manchester Road where the tracks run parallel to and immediately west of Dorothy Avenue. This avenue runs from Manchester Road to the north only and does not continue past Manchester Road on the south. The accident occurred on December 29, 1949, at approximately 8:20 P.M. The weather was clear, the streets were dry and the visibility was good. The lights of the automobile and of the streetcar were burning. There were no stop signs for westbound traffic on Manchester Road, but there was a stop sign for southbound streetcars, located a few feet north of the north curb line of Manchester Road. Fifteen to twenty feet east of the streetcar tracks and five or six feet north of the pavement of Manchester Road is a two story building.
Plaintiff was driving his automobile thirty-five to forty miles per hour for a distance of two blocks east of the point of collision. When he was approximately one-half block away from the point of collision he looked for but saw no southbound streetcars on defendant's tracks. He could not see more than ten feet of the tracks north of the north curb line of Manchester Road because of the two story building. He saw the streetcar for the first time when he was within twenty feet of it. At that time plaintiff was halfway between the inside and outside lanes for westbound traffic. After he saw the streetcar he applied his brakes and swerved to the left. The right front portion of plaintiff's automobile came in contact with the left side of the streetcar approximately one-third of the way from the front. There was no other traffic on Manchester Road prior to the accident and no cars were parked on either side of Manchester Road east of the streetcar tracks.
The operator of the streetcar, called as a witness for plaintiff, testified that the streetcar was forty-five or fifty feet long and that the tracks were dry and the brakes were in good working condition. He stopped the streetcar two or three feet from the north curb of Manchester Road and discharged a passenger. Thereafter he closed the door and started the streetcar and when about two feet into Manchester Road he looked to the east and saw plaintiff's car coming "two or three hundred feet away." He did not keep his eye on plaintiff after he first saw him and when he looked again plaintiff's car was getting closer and as he testified, "I started to get across as fast as I could, but I couldn't get across." When he was two feet into Manchester Road the streetcar was moving four or five miles per hour.
Several passengers on the streetcar testified for plaintiff. One of these passengers, sitting near the middle of the streetcar, looked to her left, just as the streetcar was entering Manchester Road and saw plaintiff's car one hundred twenty-five feet away in the second lane from the curb. A consulting traffic engineer testified that the streetcar involved in the collision, under the circumstances present at the time of the accident, had a minimum braking distance of five feet at five miles per hour and that an Oldsmobile automobile of the type involved in the accident moving at forty miles per hour could be stopped in one hundred twenty-five to one hundred thirty-five feet.
In support of the trial court's judgment defendant contends that when the streetcar entered Manchester Road plaintiff was in no position of peril and that its operator had a right to assume that plaintiff would stop or slacken the speed of his automobile for the intersection and that the operator of the streetcar properly proceeded onto Manchester Road. It supports this position with a statement from the decisions that a person who is not oblivious and had the ability to stop, is not in a position of imminent peril when he is merely moving toward the path of a moving vehicle, and that he does not come into a position of imminent peril therefrom until he is directly in the path of such vehicle or so close thereto that he cannot stop short of its path. Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W.2d 540, loc. cit. 547; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47.
In a study of the testimony the jury could have found that when the streetcar was two feet into Manchester Road, moving five miles per hour, the plaintiff's automobile was then two hundred feet from the point of collision moving forty miles per hour. A vehicle moving forty miles per hour will travel approximately sixty feet per second and in one and one-fourth seconds will travel seventy-five feet. A vehicle moving five miles per hour, in one and one-fourth seconds will travel approximately nine and one-half feet. Applying these calculations to the two vehicles in this case we find the streetcar eleven and one-half feet into Manchester Road when the automobile of plaintiff was one hundred twenty-five feet from the point of collision. At this point plaintiff could not have stopped his automobile in time to have avoided the collision. If at this time the operator of the streetcar had applied his brakes he could have stopped in five feet bringing the streetcar into Manchester Road a distance of sixteen and one-half feet. The two westbound lanes of Manchester Road were thirty feet in width and if the operator of the streetcar had stopped, plaintiff would have had plenty of room to pass and the collision would have been avoided. The jury also would have been justified in finding that the motorman saw or could have seen plaintiff's automobile, when it was one hundred twenty-five feet from the point of collision, as the streetcar "was entering" Manchester Road. Support for this finding can be found in the testimony of the passenger on the streetcar. If the motorman had stopped his streetcar he would have been five feet into Manchester Road, giving to plaintiff twenty-five feet of west-bound roadway in which to pass.
Defendant in its brief points out that the automobile ran into the side of the streetcar and that this fact cannot be reconciled with the aforementioned speeds and distances as testified to by plaintiff's witnesses. The explanation for this apparent conflict can be found in the testimony of the motorman when he testified, "I started to get across as fast as I could, but I couldn't get across." This increase in speed took place when plaintiff's car "was getting closer." We are of the opinion that it was the operator's attempt to get across as fast as he could that caused the collision to take place against the side of the streetcar.
In demonstrating above that the operator of the streetcar could have stopped after plaintiff reached a point of imminent peril, we have omitted taking into account the alleged obliviousness of the plaintiff. Where obliviousness is not present, the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it. Frandeka v. St. Louis Public Service Co., supra; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296. However, under the humanitarian rule the zone of imminent peril is widened considerably beyond the immediate path of a moving vehicle by the obliviousness of a person approaching its path. Frandeka v. St. Louis Public Service Co., supra; Crews v. Kansas City Public Service Co., 341 Mo. 1090, 111 S.W.2d 54. This zone commences and the duty of a driver of a moving motor vehicle begins when he saw, or could have seen, by the exercise of the required degree of care, that the person approaching the path of his vehicle was oblivious to the danger and was intent on continuing across his path. Frandeka v. St. Louis Public Service Co., supra; Homan v. Missouri Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617. It is his duty to act on reasonable appearances of obliviousness and at a time when action would be effective. Frandeka v. St. Louis Public Service Co., supra; Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368.
We have pointed out at the beginning of this opinion that the jury was required to find that plaintiff was oblivious to the approach of the streetcar. It isn't sufficient proof of obliviousness for plaintiff to testify that he was unaware of the presence of the streetcar until he was within twenty feet of it. He must show by his evidence that such obliviousness was reasonably apparent to the operator of the streetcar and by the exercise of the required degree of care could have been discovered by the defendant's operator. Plaintiff contends that his evidence showing that his automobile traveled at an undiminished speed of thirty-five to forty miles an hour for a distance of two blocks and that the operator of the streetcar saw plaintiff's car when it was three hundred feet away (a distance of one block), is sufficient to support a finding by the jury that plaintiff was oblivious and that his obliviousness was reasonably apparent to and discoverable by the operator of defendant's streetcar. Both parties have cited many cases in their briefs in support of their respective positions on the element of obliviousness. We have examined all of the cases cited by both parties and find only one applicable to the evidence in this case. We feel that the case of Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254, lends considerable support to plaintiff's contention. In that case plaintiff's husband was killed in a collision of an automobile driven by deceased's daughter and a truck owned and operated by the defendant. The accident occurred at night and both vehicles displayed lights. The automobile, in which deceased was a passenger, was going west on Route U, an open country highway in Pemiscot County, at a speed of fifty miles per hour. Defendant's truck was being operated north on U.S. Route No. 61 at thirty-five miles per hour. The driver of the car was oblivious to her danger, when defendant's driver had an unobstructed view for three hundred sixty feet east on Route U. The evidence showed that the car in which deceased was riding could have been stopped in one hundred seventy-five feet going fifty miles per hour. The court in holding that there was sufficient evidence for the jury to find that obliviousness was reasonably apparent said, 190 S.W.2d loc. cit. 256:
"When the Teague automobile was 360 feet from the crossing, defendant Collier had 4.9 seconds in which to have observed the movement of the Teague car. As we have said, defendant Collier could have seen the Teague automobile as it traveled over a distance of more than 360 feet. For such a distance it progressed steadily toward the intersection at a speed of fifty miles per hour. We believe it should not be held as a matter of law that the movement of the automobile at the unretarded speed of fifty miles per hour was not reasonably indicatory, under the circumstances and surrounding conditions, that the driver was oblivious of the approach of defendants' truck. It would seem that it could have been reasonably found that defendant Collier, in the exercise of the highest degree of care, should have realized that the occupants of the Teague automobile were in peril before the automobile had moved to a point 175 * * * feet from the intersection, the distance, according to the evidence, within which the automobile moving at fifty miles per hour could have been stopped. If so, the question of the time at which defendant Collier, in the exercise of the highest degree of care, should have realized the occupants of the automobile were in peril, and the question whether his conduct thereafter was negligent as measured by the humanitarian rule were for the jury."
We believe this case controls the facts in the case before us and that we cannot hold as a matter of law that an unretarded speed of thirty-five to forty miles per hour for a distance of three hundred (less twenty) feet was not sufficient to make it reasonably apparent to defendant's operator that plaintiff was oblivious to the approach of the streetcar. We believe that plaintiff's obliviousness and at what time plaintiff's peril arose were for the jury.
We have shown that a submissible jury case was made independent of the element of obliviousness. With the element of obliviousness properly submissible, it has the effect of widening the zone of imminent peril and would permit the jury to find that the operator of the streetcar had the duty to stop the streetcar before plaintiff reached a point where he could no longer stop.
The defendant in its brief attaches some importance to the case of Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160. The only similarity observable is that the accident occurred at the same intersection. Any other similarity in the facts of the case is absent. In this case the court clearly found that the physical facts in the case tell the story in no uncertain terms and that these physical facts were clearly at war with the testimony given by plaintiff's witnesses. It should be pointed out that the element of obliviousness was not a factor in the case and the court held there was no evidence in the case demonstrating that the motorman of the streetcar could have discovered plaintiff's position of peril in time to have avoided the collision. We have demonstrated above through the testimony of witnesses as to distances and speeds that the jury could have found that defendant's operator could have stopped its streetcar under the humanitarian rule in time to have avoided the collision. It follows, therefore, that the trial court erred in sustaining defendant's motion for judgment in accordance with its motion for directed verdict.
It is ordered that the judgment rendered by the trial court be reversed and the cause remanded with directions to reinstate the verdict of the jury and the judgment rendered thereon.
BENNICK, P. J., and ANDERSON, J., concur.