Opinion
No. 41827.
January 8, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WM. H. KILLOREN, J.
William C. Connett IV, Edward A. Haid, St. Louis, Bryan, Cave, McPheeters McRoberts, St. Louis, of counsel, for appellant.
Arthur J. J. Bohn, Mark D. Eagleton, St. Louis, for respondent.
Plaintiff-respondent (hereinafter called plaintiff) sued defendant-appellant (hereinafter called defendant) for damages for personal injuries sustained while a passenger upon defendant's bus. Verdict was for plaintiff for $18,750 and, upon remittitur of $3750, judgment was entered for $15,000. Defendant appealed.
Defendant here: denies that plaintiff made a submissible case; claims that the court erred in giving one instruction; asserts that the verdict was the result of passion and prejudice; and contends that the judgment entered after remittitur is excessive.
On April 24, 1948, plaintiff boarded the southbound bus at the "bus stop" on the west side of Gravois north of the intersection of Gravois and Delor. As she was slowly walking toward the rear, and after the bus had started and was moving south, a violent, unusual, extraordinary and sudden jolt, jerk and stop threw her to the floor and caused her injuries. The violence and abruptness of the stop, and that her injuries resulted therefrom, were not controverted.
Gravois is north-and-south and Delor is east-and-west. The travelway at the intersection is 56 feet long on Gravois and 36 feet wide on Delor, the distances between projected curb lines. From the intersection, the grade of Gravois north is "negligibly" (.5%) downward, and that of Delor east is upward "more than average" and "readily noticeable" (3.3%).
There were traffic "stop signs" at all four corners. The one on the west side of Gravois was 10 feet north of the Delor curb. North of this stop sign were two large telephone poles, and, still farther north (65 feet from the stop sign and 75 feet north of the Delor curb), was a "bus stop" sign. North of the latter was the bus stop zone. The traffic stop sign on the north side of Delor east of Gravois was 13 feet from the east curb of Gravois.
The day was clear and "it was broad daylight." The pavement was dry. The bus driver was experienced, had been defendant's driver-chauffeur for 6 1/2 years and had driven that route before. Upon direct examination he stated that: after he closed the bus doors he looked to his left (east), then at the rear vision mirror, then to his right (west) "to see if traffic at Delor was clear, which it was, and I again looked to my left; in the meantime I had started my bus slowly out into the street; at my first glance to my left I had noticed an automobile coming west on Delor Street at about 25 or 30 feet back (east) or the regular major (traffic) stop sign, coming at, oh, about 25 miles an hour and I had paid no more particular attention, it was coming at a rate of speed that it could and I assumed would make the stop at Gravois. * * * As I moved slowly out into Delor I was watching ahead of me and I glanced again to my left and this automobile came on through the stop sign at about, as near as I can tell, the same rate of speed that it had been approaching the stop sign and was, as a matter of speech, right onto me, so I had no alternative but to apply my brakes and stop to keep from hitting the right side of the automobile and he went ahead in front of me, never looking towards me at all, and went on down to Morganford and on through the stop sign at Morganford; the last I saw of him he was still going down Delor at about the same rate of speed he had when I first noticed him; he wasn't over 2 feet away when he passed the bus; I was going slowly, possibly 4 or 5 miles an hour." When he glanced to his right (west), he observed that there was no traffic approaching Gravois on Delor from that direction. It "was clear to my right", and "there was nothing to my right to occupy my attention." The only motor vehicle on Delor to the east was the one automobile and the only motor vehicle on Gravois (south or north) was the bus. (Apparently, there were no pedestrians in any of the intersection's walk lanes.)
Upon cross-examination the bus driver stated that: when he first observed the car it was about 25 or 30 feet east of the Gravois curb; he looked at the car long enough to identify its make and rate of speed; it never slowed down as he watched it; "the bus was about 8 feet out into the intersection" when he applied the brakes; and the car was halfway across the center line of Gravois when he saw it the second time.
The bus driver's testimony at the trial conflicted with that he gave by deposition as to: whether his glances to the left and right, respectively, were before or after he had started the bus; how far north of the Delor (projected) curb line the bus was when it started; and whether he stopped the bus at the traffic stop sign on Gravois before entering the intersection.
A passenger on the bus testified that the bus stopped in the regular zone (i.e., with its front end approximately at the "bus stop" sign, or 75 feet north of the Delor (projected) curb line), and that the bus started up, and "before the front end of the bus got halfway across Delor Street I suddenly saw an automobile going west pull in front of the moving bus, * * * and if the driver had not made this stop the front end of the bus would have collided with the right side of the car."
The cause was submitted upon the res ipsa loquitur case stated in the petition. Defendant now urges that plaintiff did not maintain her burden of persuasion by showing "by the greater weight of the evidence" that the bus driver was negligent, citing three res ipsa loquitur cases: McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 561, 92 A.L.R. 641; Evans v. Missouri Pac. Ry. Co., 342 Mo. 420, 116 S.W.2d 8; and Durmeier v. St. Louis County Bus Co., Mo.Sup., 203 S.W.2d 445. In the McCloskey and Evans cases, this court analyzed and clarified the distinction between the "burden of proof" and the "duty of going forward with the evidence". In the Durmeier decision we applied those principles in a case where defendant's evidence was sufficient, in the opinion of the jury, to negative the prima facie case of a bus driver's negligence.
Defendant's position is that: the bus driver looked to the left and then to the right before starting the bus, then drove into the intersection without again looking to the left; "he was not required to anticipate that the driver of the automobile `might run the stop sign' but, on the contrary, he had a right to assume that he would stop"; he was then "confronted with an emergency"; and, therefore, his act in making a sudden and violent stop was not negligence.
It is not material if the bus driver started the bus before or after he glanced first to the left and then to the right. The issue is not whether "he had the right to assume that the car driver would not run through the stop sign." It is whether such an assumption by the bus driver, under the circumstances, negatived plaintiff's prima facie case — whether he was negligent in failing to stop at Gravois or in failing again to look to his left either before starting the bus or before entering, or continuing to proceed across, the intersection. These were issues for the jury. Plaintiff made a submissible case.
Hanks v. Anderson-Parks, Inc., Mo.App., 143 S.W.2d 314, cited by defendant, is readily distinguishable. There plaintiff, the driver of a motor vehicle which collided with defendant's truck in a street intersection, "ran a stop sign". The defendant's view of the intersecting street was obstructed and he first saw plaintiff's car when it was about 10 feet in front of him coming into the intersection. It was held that, under those circumstances, the defendant was justified in assuming that any motor vehicle on the intersecting street would observe the stop sign which gave the defendant the right-of-way over such other vehicle. Compare also Sams v. Adams Transfer Storage Co., Mo.Sup., 234 S.W.2d 593, September, 1950, Session.
It was not controverted that plaintiff lost 4 months' salary, $800. Subparagraph "Fourth" of the measure-of-damages instruction authorized recovery for "such loss of earnings, if any, not to exceed the total sum of $800, as you may find and believe from the evidence plaintiff has suffered from the 24th of April, 1948, down to the 6th day of October, 1948." (Italics ours.) Defendant contends that this "does not require the jury to find that such loss of earnings was suffered by reason of and on account of the injuries resulting from the accident in question."
This subparagraph was one of a series reciting the various elements of damages to be considered (if the jury found for plaintiff) "for the injuries, if any, sustained by her on the occasion in question, on April 24, 1948." (Italics ours.) Loss of earnings was one of 5 elements of damages, all bottomed on the injuries sustained on that occasion. Subparagraph "Fourth" conditioned recovery for loss from that element "upon the evidence." See August Viermann Bricklaying Co. v. St. Louis Contracting Co., 335 Mo. 534, 73 S.W.2d 734. Compare O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, in which the amount was not so conditioned and where the issue was whether the injuries were the cause of the loss of earnings. Compare also Kelly v. Kiel, Mo.App., 117 S.W.2d 1086, where the evidence as to the amount of lost earnings was conflicting. we rule this assignment against defendant.
The conditional order relating to remittitur recited that "otherwise, judgment will be set aside on grounds No. 9 and No. 10 of defendant's motion, as being excessive." (Italics ours.) Ground 8 of defendant's motion for new trial was that the verdict was excessive. Grounds 9 and 10 were, substantially, that the verdict was the result of passion and prejudice. Defendant asserts that the trial court's order was a finding that the verdict was excessive and "was the result of passion and prejudice," and, therefore, a new trial should have been granted.
We do not agree. In his conditional order, the trial judge expressly assigned "excessiveness." That he was actually basing his ruling on ground 8 is shown by the recitals of the entry ordering the remittitur, and by the judgment entered after remittitur was made. "It plainly appears that the basis of the trial court's ruling was excessiveness alone and not excessiveness due to passion and prejudice." Osburn v. Kansas City So. Ry. Co., 360 Mo. —, 230 S.W.2d 856, 858.
Plaintiff testified that: her age was 66; for 35 years she had been a bookkeeper for a downtown St. Louis insurance agency; her monthly salary was $200; she lived in Richmond Heights with her sister who worked for the same agency; she had previously been in good health; the day after the accident she was taken to the hospital; a fracture of the neck of the left femur was "nailed" a few days thereafter; she remained in the hospital 5 weeks; for about 6 weeks after going home, she had a nurse; she started using crutches; about 8 months after the operation "the bone broke away from the nail"; she was hospitalized again for a week and the nail was removed.
The medical testimony was that: the nail's failure to hold was the result of absorption and decalcification of the bone; the second operation showed a union of the fibrous tissues of the femur head, neck and shaft, and a 1-inch shortening of the leg; this condition is permanent; she will always have a limited motion of the hip joint; so far as the hip joint is concerned, she is 80% disabled.
The medical testimony corroborated plaintiff in her statements that: she must use raised shoes; it is difficult for her to get about even with the aid of a cane; she experiences considerable pain, especially at night when the leg is swollen; she cannot get on or off streetcars or busses without assistance and she will always have to have this help; the pain and swelling increases during the day; she must take sedatives; she cannot put on or take off her shoes and stockings or bathe her feet and legs; she is very nervous, both day and night; her surgical, hospital and nursing bills were approximately $1200.
Plaintiff further testified that: she used two crutches until May, 1949, one crutch the next month and a cane thereafter; between September, 1948, and August, 1949, her sister brought some of their employer's records to the home and plaintiff did her work there; since resuming work downtown she has to have her lunches brought to her desk; there is a constant pain in her leg, sometimes extending to the ankle; the leg is swollen to the ankle and she has to wear an elastic stocking; the hip pain is constant and is intensified when she tries to get around; her sister massages her hip and leg twice each evening; this brings some relief; she also uses an infra-red ray lamp on her hip and leg; she is nervous and cannot rest well, having to get up several times a night and sit in a chair for relief.
We do not think that the $15,000 judgment is excessive. "Under desirable (yet difficult-to-apply) standards of uniformity, the decision in each case must be based upon the facts of that particular case." Williams v. Illinois Cent. R. Co., 360 Mo. —, 229 S.W.2d 1, 6.
Plaintiff's hospital and medical expenses and her salary loss were approximately $2,000. Her crippled condition, with its attendant pain, is permanent. The trial court, who saw and heard the witnesses, including the injured plaintiff, reduced the $18,750 verdict by $3,750. See Wenzel v. St. Louis Public Serv. Co., 360 Mo. —, 235 S.W.2d 312, and Brady v. St. Louis Public Serv. Co., 360 Mo. —, 233 S.W.2d 841, both Sept. 1950 Session.
Considering the nature and extent of plaintiff's injuries, the resulting permanent physical and nervous condition, her suffering, the expenses she incurred and her lost wages, the $15,000 award is not so shocking as to impel this court to require further remittitur. Compare: Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384; O'Brien v. Vandalia Bus Lines, 351 Mo. 500, 173 S.W.2d 76; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Willis v. Atchison T. S. F. Ry. Co., 352 Mo. 490, 178 S.W.2d 341; Potashnick v. Pearline, Mo.Sup., 43 S.W.2d 790; Liles v. Associated Transports, Inc., 359 Mo. 87, 220 S.W.2d 36; Williams v. Illinois Cent. R. Co., and Osburn v. Kansas City So. Ry. Co., supra; and Lange v. St. L. Pub. Serv. Co., 360 Mo. —, 233 S.W.2d 641, Sept. 1950 Session.
Accordingly, the judgment is affirmed.
VAN OSDOL and ASCHEMEYER, CC., concur.
The foregoing opinion by LOZIER C., is adopted as the opinion of the court.
All concur.