Opinion
Nos. 28630, 28631, 28762.
September 15, 1953. Rehearing Denied October 16, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Not to be reported in State Reports.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellants, St. Louis Public Service Co. and Dyer Cochrum.
Lyng, MacLeod Davidson and Donald S. Hilleary, St. Louis, for plaintiff-appellant, Byrne Heninger.
Moser, Marsalek, Carpenter, Cleary Carter, G. W. Marsalek, and C. M. Kirkham, St. Louis, for defendant-respondent, Bernard Roth.
This is an action for damages for personal injuries sustained by plaintiff, Byrne Heninger, when an automobile in which he was riding as a guest was struck by one of St. Louis Public Service Company's Hodiamont street cars which was being operated at the time by Dyer Cochrum. The automobile was owned and driven by Bernard Roth, who was 21 years of age at the time of the accident, and had been a casual acquaintance of plaintiff since their high school days. Plaintiff was 19 years of age at the time of the accident.
Roth, St. Louis Public Service Company, and Cochrum were all joined as defendants to plaintiff's action, in which he prayed damages of $10,000.
At the trial of the case the jury returned a verdict in favor of plaintiff, and against defendants St. Louis Public Service Company and Cochrum, for the sum of $2,500, but in favor of defendant Roth.
Judgment was entered in accordance with the verdict; and in due time defendants St. Louis Public Service Company and Cochrum filed their respective motions for a new trial upon plaintiff's claim against them, while plaintiff filed a motion for a new trial upon his claim against defendant Roth.
The court overruled all the motions, whereupon defendants St. Louis Public Service Company and Cochrum gave notice of appeal to this court from the judgment against them for $2,500, and plaintiff gave notice of appeal to the Supreme Court from the judgment in favor of defendant Roth. The whole question of where appellate jurisdiction lay was to be determined by the amount in dispute, which defendants St. Louis Public Service Company and Cochrum took to be $2,500 as between themselves and plaintiff, and which plaintiff took to be $10,000 as between himself and defendant Roth.
Since both appeals were from one and the same judgment and presented but a single case for appellate review, Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, it was of course necessary that both appeals should be lodged in whichever court had appellate jurisdiction; and the question was ultimately resolved by the action of the Supreme Court in transferring plaintiff's appeal to us.
While the Supreme Court filed no opinion, its theory was, we are sure, that inasmuch as plaintiff, instead of claiming that his judgment for $2,500 was inadequate, attempted and still attempts to hold and sustain such judgment, and inasmuch as defendants St. Louis Public Service Company and Cochrum could have satisfied plaintiff's claim at any time by the payment of the face amount of the judgment, such amount is the amount in dispute on this appeal notwithstanding the prayer for damages of $10,000, so that appellate jurisdiction is vested in this court. Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691.
The accident happened shortly after 5:30 o'clock in the afternoon of January 19, 1951, at the intersection of defendant St. Louis Public Service Company's Hodiamont tracks with Page Boulevard at the extreme western limits of the City of St. Louis.
Page Boulevard runs east and west, and is a much traveled thoroughfare with some 3 lanes for traffic in either direction. Defendant St. Louis Public Service Company's Hodiamont tracks run north and south at the point of the intersection, the track to the east being for northbound cars, and the track to the west for southbound cars. The tracks are on a right of way something less than a block west of Hodiamont Avenue, which also runs north and south: and from Hodiamont Avenue to the tracks.
Plaintiff and Roth were both going home from work and chanced to meet at Kings-highway, where plaintiff was waiting for a bus. Roth was driving westwardly on Page Boulevard, and when he and plaintiff recognized each other, Roth invited plaintiff to ride with him. Plaintiff sat up in the front seat with Roth, who continued on west towards his destination, which was somewhere beyond the point where the accident occurred.
While all the witnesses agreed upon the general pattern of the case, there was a measure of dispute regarding certain of the details of the evidence. For instance, plaintiff testified that there was still ample daylight for visibility and no need for headlights to be turned on. However Roth testified in his deposition, which was introduced as a part of plaintiff's case, that it was necessary to have the headlights burning, and that not only were his own lights turned on, but also the headlight of the street car. Another difference of opinion was over the location of Roth's automobile in the street. Plaintiff testified that Roth was driving in the second lane from the north or right-hand curb, while Roth himself insisted that he was in the innermost lane next to the center lane.
There was no doubt that westbound traffic was heavy at the time of day the accident occurred.
Upon reaching Hodiamont Avenue Roth stopped his automobile in what he described as a string of traffic, and then started across Hodiamont Avenue and up the incline towards the street car tracks.
When the automobile was about halfway up the incline, Roth's attention was first directed to a bus proceeding westwardly in the lane to his right. Whose bus it was is not disclosed, nor is its ownership material. Roth testified that when he first saw the bus it was from 75 to 100 feet east of the east rail of the northbound track. Plaintiff testified that it was not until he was opposite the center of the bus that he became conscious of its presence, and that the front of the bus was then some 7 to 10 feet east of the east rail of the northbound track. There was a space of 4 or 5 feet between the right side of Roth's automobile and the left side of the bus. So long as the bus was between the automobile and the curb, neither plaintiff nor Roth could see to the north.
Plaintiff testified that the speed of Roth's automobile was 15 or 20 miles an hour as it approached the street car tracks, and that it continued on at about the same speed as it actually entered upon the tracks. Roth estimated his speed as having been 20 miles an hour at the time of the collision. He stated that after starting up at Hodiamont Avenue he had never attained a speed of more than 22 miles an hour. The speed of the bus was slightly less than that of the automobile as evidenced by the fact that the automobile had been able to overtake the bus as both vehicles proceeded up the incline.
Unknown to plaintiff and Roth, it was or became the intention of the driver of the bus to bring it to a stop before undertaking to cross the tracks. Plaintiff testified that the bus was in the process of stopping when he first saw it, and that the front ends of the two vehicles were approximately even when the bus did stop abruptly some 6 to 8 feet from the southbound track.
It thus appears that the automobile emerged ahead of the bus just as the bus stopped, and that prior to that time neither plaintiff nor Roth could have seen the street car which was approaching from the north on the southbound track. As plaintiff himself put it, "The moment we started across the tracks after we had passed the bus, there was the street car." At one point in his testimony he said the street car was 10 feet away when he first saw it; at another time from 8 to 12 feet away; and at still another time 10 to 15 feet away. When Roth first saw the street car, it was only 8 feet away, and the front of his automobile was then upon or at least very close to the east rail of the southbound track. Plaintiff estimated the speed of the street car at from 15 to 17 miles an hour, while Roth placed its speed at 6 or 7 miles an hour. Roth admittedly did not blow his horn, and neither plaintiff nor Roth heard the bell or gong of the street car. The collision occurred almost instantly, with the front end of the automobile no more than 2 or 3 feet beyond the west rail of the southbound track. The automobile was struck squarely in the middle, and when it came to rest it was sitting at an angle some 10 or 20 feet beyond the track.
The negligence pleaded and submitted against defendant Roth was that he had failed and omitted to sound a warning of the approach of his automobile so as to have avoided a collision with the street car.
The negligence pleaded and submitted against defendants St. Louis Public Service Company and Cochrum, the operator of the street car, was that they had failed and omitted to discover Roth's automobile, and had failed and omitted to sound a signal or warning of the approach of the street car, so as to have avoided a collision with the automobile.
On plaintiff's appeal from the judgment in favor of defendant Roth, the first point made is that the court erred in not peremptorily directing a verdict in favor of plaintiff, and against defendant Roth, upon the theory that the latter's own testimony had established his negligence as a matter of law. It is enough to point out that plaintiff asked no such directed verdict at the trial of the case, but instead proceeded throughout upon the basis that the issue of Roth's negligence was one for the jury to determine. In this situation plaintiff is now in no position to insist that the court committed error in failing to order a directed verdict. Lehnerts v. Otis Elevator Co., Mo.Sup., 256 S.W. 819; Mayger v. Carlander, Mo.App., 261 S.W. 692; McGraw v. Farmers Fire Lightning Mutual Ins. Co., 236 Mo.App. 1019, 160 S.W.2d 845.
Defendants St. Louis Public Service Company and Cochrum did move for a directed verdict at the close of all the evidence, and now charge error in the refusal of their request.
It is fundamental that a defendant's negligence is not actionable unless it involves a breach of duty owing to the plaintiff which proximately resulted in the plaintiff's injury. So in this case it could avail plaintiff nothing that defendants St. Louis Public Service Company and Cochrum may have been guilty of negligence in the respects charged against them unless it should further appear that by discovering Roth's automobile sooner, and by sounding a signal or warning of the street car's approach, it would have been possible to prevent the accident. Short of this the negligence submitted could not have been the efficient cause of the accident, as was in fact recognized by plaintiff in conditioning his recovery upon the hypothesis that the negligence had consisted of the particular defendants' failure to do the things in question "so as to avoid said collision with the aforesaid automobile of defendant Roth".
There was clearly no issue to submit to the jury upon the question of these defendants' actionable negligence in failing to discover Roth's automobile. Under plaintiff's own evidence, Cochrum could not have seen the automobile until after it emerged from behind the bus, only 6 or 8 feet from the southbound track; and from that moment on there was nothing to be done which could have served to avoid the collision. Plaintiff in effect admits as much in his brief, and for that reason predicates his hope of recovery upon the failure to give warning of the street car's approach.
Plaintiff is at least correct in his insistence that Cochrum's duty to sound his bell was not limited to the time ensuing after he was actually able to discover the automobile emerging from behind the bus to its right. Entirely apart from any duty imposed by statute or ordinance, it is still the duty of the operator of a street car to give timely warning by bell or gong upon his car's approach to a street intersection where there is danger of collision with persons or vehicles. Turney v. United Rys. Co. of St. Louis, 155 Mo. App. 513, 525, 135 S.W. 93; Zalotuchin v. Metropolitan St. Ry. Co., 127 Mo.App. 577, 583, 106 S.W. 548. While such a duty is one which is owed to the public generally, it will none the less be the foundation for an action by any individual member of the general public who has been placed in a position to insist upon its performance.
In view of the heavy flow of traffic passing over Page Boulevard at the time of day when plaintiff's injury was received, it could hardly be denied that it was Cochrum's duty to sound his bell as he started into the intersection from the north side of take on and discharge passengers. Furthermore, under the testimony of both plaintiff and Roth that they heard no bell or gong, and considering the fact that they were both in a position where they would have been expected to hear a warning if one had been given, there was evidence, though contradicted, to support a finding that Cochrum did not sound his bell. This consequently brings us squarely to the question of the sufficiency of the evidence to have justified a finding that if a warning had been given as the street car was started forward into the intersection, there would have been time to have put Roth on notice of its approach so that he might thereafter have avoided the collision.
It would appear that there was a distance of approximately 30 feet from the middle line of Page Boulevard to the curb line on either side.
Plaintiff testified that he first saw the street car as he emerged from behind the bus, and that it was then from 8 to 15 feet from the point of collision. Under his testimony the automobile was being operated in the center lane, so that the street car must have but barely started up when he first saw it. He estimated the street car's speed as 15 to 17 miles an hour, and the speed of the automobile as 15 to 20 miles an hour.
Roth testified that when he first saw the street car the front of his automobile was upon the first or east rail of the southbound track, and that the street car was then only 8 feet away. It was his recollection that the automobile was being operated in the innermost lane, which, if true, would mean that the street car was something like 12 feet inside the intersection. He gave his own speed as 20 miles an hour, and that of the street car as 6 or 7 miles an hour. He also testified that at his speed, and under the existing conditions, he would have required a space of 35 feet in which to stop.
In his brief plaintiff endeavors to make a case of actionable negligence by computing all his relative distances upon the assumption that "when Roth's automobile started in front of the street car, the right-hand side was approximately at the center line of Page". This is directly contrary to his own testimony as well as that of Roth. Any finding that the sounding of the bell as the street car started into Page Boulevard would have enabled Roth to avoid the collision could rest on nothing more than speculation, surmise, and conjecture. We cannot escape the conclusion that the court should have sustained the motion of defendants St. Louis Public Service Company and Cochrum for a directed verdict at the close of the entire case.
Since there was no case for submission against defendants St. Louis Public Service Company and Cochrum, any question of error in plaintiff's verdict-directing instruction becomes immaterial and need not be considered.
The only remaining point, which is raised by plaintiff, is that the court committed error in giving instruction No. 5 at the instance of defendant Roth.
This instruction told the jury that if they should find that Cochrum failed to exercise ordinary care to discover Roth's automobile and to sound a warning of the street car's approach, and if they should further find that such failure was the sole cause of the collision and that Roth had not been negligent in the respect submitted in the instruction directing a verdict against him, their verdict in that event should be in favor of defendant Roth.
Plaintiff criticizes the instruction upon the grounds that Roth's own testimony had shown that a sole-cause situation did not exist, and that the instruction had failed to hypothesize sufficient facts to show that Roth was free from any concurring negligence.
Plaintiff's contention of the nonexistence of a sole-cause situation is based upon the premise that Roth, by his own testimony, had convicted himself of negligence as a matter of law. Of course no such assumption follows. The jury was entitled to find that in his course alongside the bus Roth was not required to anticipate that the bus would make an abrupt stop, and that he had no occasion to sound a warning until it was too late for a warning to have been availing. By requiring a specific finding that Roth had not been guilty of the negligence submitted against him, the instruction negatived any idea of his concurring negligence. It is true that the instruction was at fault in assuming the sufficiency of the evidence to make an issue for the jury upon the question of the negligence of defendants St. Louis Public Service Company and Cochrum, but inasmuch as plaintiff had himself been guilty of the same error, he is in no position to claim that he was harmed in that regard.
The facts have been fully developed, and there is nothing to indicate that plaintiff could make a submissible case upon any of his abandoned assignments of negligence.
The judgment should be affirmed as to defendant Roth, and reversed as to defendants St. Louis Public Service Company and Cochrum. It is so ordered.
ANDERSON, J., and ADAMS, Special Judge, concur.