Opinion
NOTE: Opinion filed at the May Term, 1937, August 26, 1937; motion for rehearing filed; motion overruled at September Term, December 17, 1937.
DAMAGES: Trials: Humanitarian Rule: Evidence Contrary to Physical Facts: Imminent Peril. In an action against the trustee of a street car company for damages caused to plaintiff by collision of the service car in which plaintiff was a passenger with a street car at a crossing of the street car tracks over the street, evidence offered by plaintiff attempting to show that the motorman could have stopped the street car after the service car began to skid toward the tracks was contrary to the physical facts and the undisputed testimony as to the speed and distances of the service car and the street car so that a case was not made for the jury under the humanitarian doctrine.
Imminent peril means something more than a probability that injury may result.
Appeal from Circuit Court of City of St. Louis. — Hon. John A. Witthaus, Judge.
REVERSED.
T.E. Francis, B.G. Carpenter and Wm. H. Allen for appellant.
A situation of "imminent peril" is the basic fact with which the humanitarian doctrine deals. No duty arises under that doctrine until a situation of imminent peril has come into existence; and no recovery may be had thereunder unless there is substantial evidence tending to show that after the peril arose the defendant knew of such peril, or was chargeable with knowledge thereof, and could thereafter have averted the threatened injury by the exercise of due care with the means at his command. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951; Ziegelmeier v. E. St. Louis Sub. Ry. Co., 330 Mo. 1018; State ex rel. Fleming v. Bland, 322 Mo. 572; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Ridge v. Jones, 335 Mo. 219; Lamoreux v. Ry. Co., 87 S.W.2d 640; Banks v. Morris Co., 302 Mo. 267; Under the evidence adduced, the service car and its occupants were obviously not in a position of imminent peril until the street car was so far across the highway, in front of the oncoming service car, as to make it impossible for the motorman to do aught to prevent the collision. The term "imminent peril," within the contemplation of the humanitarian rule, does not mean remote, uncertain or contingent peril, but peril "immediately impending." Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951; Ridge v. Jones, 335 Mo. 219; Ziegelmeier v. E. St. Louis Sub. Ry. Co., 330 Mo. 1018; State ex rel. Vulgamott v. Trimble, 300 Mo. 109; Stewart v. Mo. Pac. Ry. Co., 308 Mo. 383; Banks v. Morris Co., 302 Mo. 267. The mere fact that one is in a position such as to make it possible that he may be injured by reason of succeeding events does not by any means mean that he is in a position of "imminent peril" — peril "immediately impending." State ex rel. Vulgamott v. Trimble, 300 Mo. 92; Wallace v. Ry. Co., 336 Mo. 289. Testimony that is contrary to undisputed physical facts, or to physical laws, or inherently impossible, is wholly without probative value and will be rejected in determining whether a prima facie case was made. Alexander v. St. L.-S.F. Ry. Co., 327 Mo. 1020; Ziegelmeier v. E. St. Louis Sub. Ry. Co., 330 Mo. 1019; Sexton v. Met. St. Ry. Co., 245 Mo. 273; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581; Roseman v. United Rys. Co., 251 S.W. 106. The motorman of a street car is not required to anticipate that the driver of an automobile will deliberately drive it into the side of his car while the latter, in plain view, is slowly proceeding across a broad highway and after having proceeded so far across as to bring the rear thereof near the center of the highway. Ziegelmeier v. E. St. Louis Sub. Ry. Co., 330 Mo. 1017. E. McD. Stevens, John J. Nangle, George Gantner and Harry S. Rooks for respondent.
The court properly refused to direct peremptorily a verdict for defendant Kiel since the evidence presented a submissible case for the jury on pleaded specifications of negligence, to-wit: The evidence presented a submissible case for the jury on the pleaded negligence that the motorman of the street car saw or, by exercise of ordinary care, would have seen the service car with plaintiff therein in imminent peril of collision, in time for the motorman thereafter, by ordinary care, to have averted the collision, but negligently failed to do so. Ziegelmeier v. Ry. Co., 330 Mo. 1013; Flynn v. St. L. Pub. Serv. Co., 41 S.W.2d 888; Homan v. Mo. Pac. Ry., 334 Mo. 61, Id., 335 Mo. 30; McCombs v. Fellis, 337 Mo. 491; Womack v. Mo. Pac. Ry., 337 Mo. 1160; Kloeckener v. St. L. Pub. Serv. Co., 331 Mo. 396; Lyons v. Met. St. Ry., 253 Mo. 143; Vandenberg v. Snider, 83 S.W.2d 201; Burow v. St. L. Pub. Serv. Co., 79 S.W.2d 478; Montague v. Mo. Kan. Int. Ry., 305 Mo. 282. The evidence was sufficient for the jury to find that, at a time when the motorman could, by ordinary care and with reasonable safety, have stopped the street car in ample time to prevent it intercepting the service car, the motorman could by ordinary care have seen the service car with plaintiff therein approaching at a speed and distance under conditions such that it could not or would not stop in time to prevent a collision if intercepted, which constituted "imminent peril" as defined by this court, and presented a submissible humanitarian doctrine case. Testimony as to facts seen by direct observation is not destroyed in probative value by testimony of the same witness as to opinion estimates of speed and distance merely because inconsistent. Christner v. Ry. Co., 228 Mo. App. 225; Haddow v. St. L. Pub. Serv. Co., 38 S.W.2d 287; Tunget v. Cook, 94 S.W.2d 925. The evidence was sufficient for the jury to find that the motorman could have seen that a collision and injury was certain so long as he allowed the street car to proceed across the highway, and at a time when he easily could have stopped. However, even if he could not then see that the injury was certain to occur because it appeared to him that there was a mere possibility that the service car might stop, that construction of the evidence is still sufficient because to constitute "imminent peril" under the humanitarian doctrine, it is not necessary that "injury" be certain, it is sufficient if the "peril" be certain and immediately impending. Wallace v. St. J. Ry., L., H.P. Co., 336 Mo. 289; Ridge v. Jones, 335 Mo. 225.
This is an action to recover damages for personal injuries alleged to have been sustained as the result of a collision between a service car and a street car, at the intersection of Manchester Road and the street car tracks immediately west of Dorthy Street, in St. Louis County, Missouri. Plaintiff obtained a judgment in the sum of $25,000 against all of the defendants. They were: J.F. Terrell, W.L. Terrell, and Henry W. Kiel, trustee for the St. Louis Public Service Company. Kiel, as trustee for the Public Service Company, owner of the street railway system, appealed.
The case was submitted to the jury under the humanitarian doctrine. The undisputed facts, as we gather them from the evidence, are: The collision occurred on July 11, 1934, at about six-thirty P.M. Manchester Road, at the point in question, is a four lane concrete highway, forty feet wide, running in an easterly and westerly direction. A double street car track crosses the highway in a north and south direction, somewhat northeasterly and southwesterly. About two hundred feet east of the intersection, on Manchester Road, is a sign "Railroad Crossing." To the south of the intersection and to the east of the tracks is a "stop" sign for street cars, and also a platform for passengers intending to board or leave the street cars. The service car that figured in the collision was a large Packard sedan, carrying seven passengers at the time of the collision. The service car was traveling west in the lane immediately north of the center line of Manchester Road and the street car was traveling north on the east track. The service car struck the street car near the rear end, derailing it. The service car swerved to the left just before the collision and the rear end of the car skidded into and struck the street car. The glass in a number of the windows of the street car was shattered. Two of the passengers in the service car were killed and a number of the others were seriously injured.
Plaintiff's witnesses testified that the street car stopped south of the highway, then moved slowly across it, beginning at a speed of about two miles per hour and gradually increasing to about six or seven miles per hour at the time of the collision. Plaintiff's witnesses testified that the service car was traveling at about twenty-five or thirty miles per hour; that a light rain had fallen just before the collision; that there was a slight incline toward the tracks on Manchester Road. Plaintiff testified that when the service car reached a point about thirty feet from the car tracks she felt the application of the brakes, then a swerve to the left. She testified the road was clear ahead of her at the time the brakes were applied; that she fainted before the collision and remained unconscious for some time after the collision. She was seriously injured. A police officer testified that there were marks on the concrete to the north of the center of the road, where the rear wheels of the street car had left the tracks. Another witness, who was a passenger in the service car, testified that the service car was traveling about thirty miles per hour; that when it reached a point about sixty or seventy feet from the tracks he felt the application of the brakes; that the street car was standing still, at that time, south of the highway; that when the service car was about thirty feet from the tracks it began to swerve to the left and the rear end skidded around and struck the street car. Another witness, also a passenger on the service car, testified that the street car was standing still south of the highway when the service car was about eighty-five feet from the crossing; that the street car started across the highway at a speed of two or three miles per hour and had increased its speed to about seven or eight miles per hour at the time of the collision; that when the service car was about sixty feet from the track it was going twenty or twenty-five miles per hour; that prior to the application of the brakes it was traveling about thirty-five miles per hour. On cross-examination this witness testified that the brakes were applied just before the car was even with a building on the north side of the roadway. It was shown that this building was located more than 100 feet from the tracks. We have related substantially all of plaintiff's evidence, which plaintiff claims was sufficient to make a case for the jury, under the humanitarian doctrine, against the street car company. The driver of the service car, a defendant in the case, testified that he did not see the street car until he was 100 feet from the tracks; that the street car, at that time, was about five feet south of the concrete roadway; that he slowed the car down and was going about twelve miles per hour at the time of the collision.
Was the evidence sufficient to submit the case to the jury under the humanitarian doctrine? We think not. The physical facts in the case tell the story in no uncertain terms. The force of the impact, which derailed the rear trucks of the street car and shattered the windows of the car, leads us to conclude that plaintiff's witnesses did not overestimate the speed of the service car. It was conceded that the street car stopped south of the highway, then moved slowly across. It was struck near the rear vestibule, when north of the center line of the road. This street car was forty feet long. When the front end of the street car reached the center of the highway the service car must have been at least 120 feet or more east of the tracks. The testimony of plaintiff's witnesses, that the street car was at a standstill when the service car was from fifty to eighty feet from the tracks, and in front of the car when it reached the tracks, is so contrary to the physical facts that it must be rejected. [Dunn v. Alton Railroad Co., 340 Mo. 1037, 104 S.W.2d 311; Carner v. St. Louis-San Francisco Railroad Co., 338 Mo. 257, 89 S.W.2d 947, l.c. 950 (5); Tate v. Missouri-Kansas-Texas Railroad Co., Mo. 93 S.W.2d 873, l.c. 876 (2, 3); Alexander v. St. Louis-San Francisco Railroad Co., 289 Mo. 599, 233 S.W. 44, l.c. 50 (5).] If the service car, traveling at thirty miles per hour, had been only sixty or ninety feet from the tracks, at the time the street car reached the south side of the concrete roadway, it would easily have passed ahead of the street car without a collision. That the witnesses were in error as to their estimates of the distance was shown when one witness was asked on cross-examination where the service car was with reference to a certain building at the time of the application of the brakes. The answer indicated that it must have been about 120 feet east of the crossing. Another witness testified that the street car was standing still, south of the highway, when the brakes of the service car were first applied. That is also so contrary to the physical facts that it must be rejected. We may also inquire, why did the operator of the service car apply the brakes while the street car was standing still south of the highway? Under the physical facts, as testified to by plaintiff's own witnesses, the service car must have been more than 220 feet from the tracks when the street car reached the concrete roadway. From that time to the time of the collision the street car moved at least forty-five feet, in the matter of time, about five seconds. The service car, approaching the tracks at thirty miles per hour, was in no apparent danger when 200 feet away at the time the street car began to cross the highway in the pathway of the service car. Neither was it in any apparent danger, traveling at that speed, when the front end of the street car reached the center of the highway, because at that time the service car must have been at least 120 feet east of the tracks. These estimates of distances and time are as favorable to the plaintiff as the evidence justifies. A car, at thirty miles per hour, travels forty-four feet per second; at two miles per hour, about three feet per second; at six miles per hour, about nine feet per second. Plaintiff's evidence, therefore, wholly failed to establish a case under the humanitarian doctrine. We have carefully read the evidence introduced by the defendants and it does not aid the plaintiff. Plaintiff's evidence failed to establish any fact, which could have been reasonably discovered by the motorman, that indicated any peril, or that the driver of the service car would be unable to stop his car, or that he did not intend to do so. Respondent in her brief baldly asserts that the motorman could have, by the exercise of ordinary care, discovered the service car and its occupants in peril in time to have avoided the collision. This is followed by the assertion that the motorman could have stopped the street car after the service car began to skid toward the tracks. The physical facts, as testified to by plaintiff's witnesses, conclusively showed that when the service car began to skid toward the tracks the motorman had passed the center of the intersection, in fact, he had passed the point of collision. The car, as the witnesses testified, swerved and skidded when the driver attempted to turn to the left and pass to the rear of the street car. Had the motorman stopped the car at the time the service car began to skid the collision would have occurred nevertheless. The only difference would have been that the street car would have been struck nearer the center. It must be remembered that the street car was forty feet long.
A case cited by respondent, Jordan v. St. Joseph Ry., Light, Heat Power Co., 38 S.W.2d 1042, l.c. 1044, Id., 335 Mo. 319, 73 S.W.2d 205, presented an entirely different state of facts. The motorman in this case, under the circumstances, had the right to assume that the service car would stop unless there was some fact, the motorman could have discovered by the exercise of ordinary care, which indicated that the driver of the service car did not intend to, or could not stop. No such evidence was produced. [Elkin v. St. Louis Public Service Co., 74 S.W.2d 600, l.c. 604 (9, 10), 335 Mo. 951, l.c. 957.] We have repeatedly ruled that "imminent peril" means something more than a probability that injury may result. [Ridge v. Jones, 71 S.W.2d 713, 335 Mo. 219, l.c. 225, 226, 227, and cases there discussed; Ziegelmeier v. East St. Louis Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027; Wallace v. St. Joseph Ry., Light, Heat Power Co., 336 Mo. 282, l.c. 289, 77 S.W.2d 1011; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, l.c. 109, 253 S.W. 1014, l.c. 1019. Certainly the motorman in this case was not required to anticipate that a car two hundred feet or more from the tracks, traveling at thirty miles per hour, was not going to stop. If so, street car operators could not move their cars across the highway for hours during the busy periods.
There being no evidence in this case that the motorman of the street car could have, by the exercise of ordinary care, discovered that plaintiff was in a position of peril, the judgment against the appellant street car company must be reversed. It is so ordered. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.