Opinion
No. 28587.
May 19, 1953.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellant.
Lyng, MacLeod Davidson, and Russell N. MacLeod, St. Louis, for respondent.
This action was brought to recover damages to person and property arising out of a collision between appellant's street car and respondent's automobile. The plaintiff (respondent) recovered a verdict and judgment for $5,000 and the defendant (appellant) has appealed.
The petition is based on both primary negligence and the humanitarian theory. The case was submitted only on the charge of humanitarian negligence, in defendant's failure to stop its street car and to warn the plaintiff of its approach. No damage as to property was submitted to the jury.
The essential facts which plaintiff's evidence tended to prove were that on June 10, 1949, the plaintiff, a salesman about 58 years of age, was driving his automobile eastward on Midland Boulevard in St. Louis, Missouri. At the area in question Midland Boulevard, which runs east and west, consists of two slabs, and defendant's two tracks and right-of-way lie between them. East and west traffic is permitted on each of the slabs. Plaintiff had turned left onto the north slab of Midland Boulevard from a point nearby to the north, and from a street that did not cross the tracks at that point. He proceeded eastward on Midland Boulevard preparatory to turning to the right and crossing the tracks at about two blocks east at Wolter Avenue, which runs north and south, plaintiff intending then to turn east on the south slab of Midland Boulevard to another point en route to his destination. It was daylight, about 5:30 p. m. The day was clear, the slabs and street car tracks were dry. The tracks were level and straight for a long distance east and west of the crossing. The crossing on Wolter Avenue over the tracks was about 15 feet wide and somewhat on a rise as one approached the north track from the north slab of Midland Boulevard. There were no stop signals at the crossing. Along the north side of the north rail on the north track, and beginning at the east line of the crossing, there was a loading zone for passengers boarding westbound street cars. This zone was 6 feet wide and about the length of a street car. At the north edge of the loading zone and beginning about 15 feet east of the crossing there were located some small shrubs or bushes and immediately to the east of them, bordering the track for some 900 feet was a "solid wall" of trees about the height of a street car, with wide foliage from the ground up, so as to obstruct the view of an approaching street car from a person coming from the west and about to turn south at the Wolter Avenue crossing, until the street car had emerged from the west end of the line of trees. Plaintiff's evidence further tended to show that when he reached a point 75 feet west of the Wolter Avenue crossing he saw no street car approaching the crossing form the east. He said the trees obstructed the view of the tracks to the east until he reached a point where he turned south upon the crossing and then he could see only 50 feet of the tracks to the east because of the trees. When 75 feet west of the crossing, plaintiff, realizing it was a blind turn, began gradually to slow down to two or three and then one mile an hour, intending to stop before crossing the tracks, and, having made the turn, he did come to a dead stop about two and a half feet from the north rail of the street car track, his car resting on the right-hand side of the crossing. He was seated 8 feet back from the bumper of his automobile. Plaintiff testified:
"A. Well, I kept on getting down shower, just about probably a mile an hour coming in to make my dead stop there at the crossing.
"Q. Now, when you stopped what did you do? A. Well, I looked to the left, which would have been the east, and I listened, I heard nothing, and then I looked to the west and again saw nothing or heard nothing; everything was clearer out there that way, there were no automobiles or traffic on that side of the highway, and I started to look forward and I heard something distract my attention and I looked to the left and at the same time I heard the noise, whatever it was, from the wheels, a valve, and of course, saw the car was there, the streetcar I was talking about, and hearing the sound of the bell there, I didn't know whether I was pretty close; I assume probably I was; otherwise, from the motorman's viewpoint, I assume probably I was pretty close, and my impulse was to back up, of course, but gosh, it was less than a second time there from the time I saw him come out behind those trees and I just didn't have time to get in reverse or back up.
"Q. You say when you stopped there first, you listened and you looked. How far could you see up there when you looked up there the first time? A. About fifty foot.
"Q. I believe you said you saw nothing and heard nothing? A. No.
"Q. Then you looked to the west? A. That's right.
"Q. And I believe you said you saw nothing coming from that direction either? A. That's right.
"Q. Could you tell us from the time that you came to a stop, the very first moment you stopped, up until the time that you looked back the second time and saw this streetcar, could you tell us how much time elapsed? A. Oh, five seconds, it might have been six seconds' time; I looked that way and over and forward.
"Q. What was that, five seconds, or maybe what? A. Five to six seconds, might have been six seconds, nothing less than five seconds.
"Q. And I believe then you said when something attracted your attention you looked and at that time you saw the streetcar? A. That's right.
"Q. Coming out from behind the trees, is that the expression you used? A. That's right.
"Q. Could you tell us how far it was at that time, how far it was from you when you saw it? A. About fifty foot, that's just when it was coming out and the extent of my view of the track.
Plaintiff testified that the street car approached at about 30 miles an hour and never reduced its speed until after the collision. Plaintiff's automobile was pushed off the crossing slab to the west and into a ditch, the street car continuing for about 90 feet before coming to a stop.
A witness for plaintiff, a lady passenger on the street car who did not see the collision, saw the operator working at his controls and heard the gong sounding before the accident, but she did not know how far the street car was at that time from the point of collision. In a deposition of a witness who was a former operator of defendant's street cars, he testified that a street car of the type in question, traveling 30 miles an hour under similar conditions, could be stopped at 100 to 125 feet, and traveling 25 miles an hour, could be stopped within 105 to 110 feet.
According to plaintiff's evidence he had struck his head against several places in his automobile at the time of the impact; he was knocked unconscious; regained his consciousness before being taken to the hospital and again lapsed into unconscious; at the hospital he was confined for 15 days; he suffered severe headaches and dizziness; the diagnosis at the hospital was: "Contusion of arms and shoulders; cerebral concussion; right inguinal hernia". After three days an operation was performed for the hernia, which existed before the accident but was then small and controlled by a truss, but was enlarged and aggravated by the accident. Returning home from the hospital he was confined to bed for two weeks and required to stay in the home thereafter for two more weeks. He returned to work on part time and by August 8 was on full time. He continued to suffer headaches, dizziness and nervousness, and a stiffness in the head and shoulders, which still existed at the time of trial. His physician said that in his opinion the headaches and dizziness would be permanent, and that he believed the conditions were the result of the accident. On a commission basis the plaintiff's income in 1947 was about $8,500; in 1948, $9,400; in 1949, the year of the accident, his income dropped to less than $6,000, and in 1950, his income was about $9,200. He had not lost time in 1949 for any other reason than the accident. His hospital bill was $200 and his doctors' fees $250.
Defendant's physician testified that he examined plaintiff in December, 1949, about six months after the accident. There were no objective signs of injury at that time other than a scar where the hernia had been operated on. He said plaintiff did not then complain of any headaches or dizziness, and could use his hands, arms and back without restriction.
In behalf of the defendant the operator testified that the track east of the Wolter Avenue crossing was practically straight to the next crossing; that he had 50 passengers on his street car; that it was his habit to sound his gong as he approached intersections, and that when his emergency is applied, the gong is automatically sounded. He did not recall definitely whether or not he did sound the gong prior to the collision; that he was familiar with the area in question; that he made many trips over it; that he approached the intersection at 25 miles an hour; that he was 30 feet from the crossing when he saw plaintiff's automobile turn right onto the Wolter Avenue crossing; that he immediately applied "everything I had", slowing down to five miles an hour, trying to stop; the emergency brake kept the bell ringing; the automobile stopped at practically the same time of the collision. He testified that as he approached Wolter Avenue he had seen no automobiles coming east on Midland Boulevard and he could see 400 to 500 feet down that thoroughfare; that an automobile standing at the crossing north of the tracks and even with the loading zone could be seen at a point 200 or 300 feet east from a street car approaching from that direction, except, he said, there was one tree along the right-of-way that at one point obstructed his view. It was 20 feet east of the crossing, about six or seven feet north of the north track. It had several tops spread out from one stump and its foliage was eight or ten feet wide. He said that when he first saw the nose of the plaintiff's automobile it was ten to twelve feet from the north rail of the north track and moving very slowly and coming out from the obstruction of the tree. The street car was then about twenty feet east of the crossing intersection.
A lady passenger testifying for defendant, stated that she did not see the automobile before the accident. She was sitting facing south on a side seat. She said the operator had rung the bell at the first crossing east of Wolter Avenue, but did not ring it continuously until reaching the Wolter intersection. Another lady passenger, witness for defendant, said she did not see the automobile make the turn, but saw it standing at the point of collision, and she could not judge the distance between it and the street car. She also had seen through the front window of the street car plaintiff's automobile approaching on Midland Boulevard 200 feet west of the crossing turn.
Defendant's first point is that the court erred in failing to sustain its motion for verdict at the close of plaintiff's evidence, and again at the close of all the evidence for the reason that there is no substantial evidence that defendant could have avoided the collision by warning and stopping after peril was discoverable. Defendant, having proceeded to introduce evidence on the merits of the case, after its motion for a directed verdict at the close of plaintiff's evidence has waived that point. Porter v. Equitable Life Assurance Society, Mo.App., 71 S.W.2d 766.
The plaintiff had the burden of proof to establish that after defendant's operator saw, or by the exercise of ordinary care could have seen, the plaintiff in a position of imminent peril, the operator negligently failed to stop the street car and sound a warning of its approach in time to avoid the collision. The first question to determine is the time when and place where the plaintiff entered a zone of imminent peril. On the question of defendant's motion for directed verdict, plaintiff is entitled to the most favorable evidence and the most favorable inferences therefrom. According to his testimony he began gradually to slow up his automobile from 75 feet before he turned off of Midland Boulevard at the Wolter Avenue crossing, because he realized that his view was obstructed. He reduced his speed to about one mile an hour as he neared the track, intending to come to a complete stop before crossing it, which, in fact, he did. Such operation of his automobile clearly indicated his actual intention to make a safety stop before crossing defendant's tracks, and defendant could not thereby be charged with knowledge, actual or implied, that plaintiff was entering a position of imminent peril. His position of imminent peril arose when, in making his gradual safety stop, he lacked eight inches of allowing for the overhang of the street car. Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 1254, 212 S.W.2d 764. Of this fact he was not aware until he heard the bell and other noises of the approaching street car and saw it within 50 feet of him. Seated eight feet back from the front of his automobile he could not see more than 50 feet of the tracks. He testified that no more than five and possibly six seconds elapsed from the time he stopped his automobile until the street car hit his automobile. Therefore, restricting plaintiff to his only positive estimate of that period, defendant's operator had five seconds, less reaction time, to see the plaintiff's position of imminent peril and to stop his street car before a collision. The operator testified that if an automobile were at the crossing and in line with the loading zone, it could be seen by him two or three hundred feet from the east The tracks east of the loading zone were straight for five or six hundred feet. The street car was traveling at an unabated rate of 25 or 30 miles an hour. Plaintiff's proof was that such a street car, under the existing conditions, traveling 30 miles an hour, could be stopped in 100 to 125 feet and if traveling 25 miles an hour, could be stopped within 105 to 110 feet. The street car, if traveling 30 miles an hour, traveled 44 feet per second. At the rate of 25 miles an hour, it would travel 36.7 feet per second.
Under the evidence most favorable to the plaintiff, where was the street car when plaintiff stopped his automobile in line with the loading zone and eight inches too close to the north rail? If the whole period between the stop and the collision was five seconds, then the street car, if traveling 30 miles an hour, must have been 220 feet to the east, or if traveling 25 miles an hour, it must have been 183.5 feet to the east. We must, however, judicially notice some reaction time in the operator's favor. Yeaman v. Storms, 358 Mo. 774, 779, 217 S.W.2d 495. If one second be allowed the defendant for the operator's reaction time, then travelling at 30 miles an hour, there was a distance of 176 feet within which to stop the street car short of plaintiff's automobile. If traveling at 25 miles an hour, then there were 146.8 feet within which to stop the street car before reaching the point of collision. If two seconds be allowed the defendant for reaction time, then traveling at 30 or 25 miles an hour, there would be 132 feet or 101.1 feet, respectively, in which to stop the street car and avoid the collision. Thus, under the evidence most favorable to the plaintiff and allowing defendant's operator for reaction 40 percent of the total distance and time available for stopping the street car before the collision, there was substantial proof to submit to the jury that the street car could have been stopped after defendant's operator saw or could have seen plaintiff's position of imminent peril, and prior to the collision.
As to the failure to give warning, there was substantial evidence that the duty of the operator of the street car to warn the plaintiff arose five seconds before the collision, less only reaction time; that the ringing of the bell 50 feet from the point of collision, or about a second's time before the collision, was insufficient. It was reasonable for the jury to conclude that had the warning come one, two or three seconds earlier, plaintiff might have been able thereafter to proceed or to back out of his position of danger before the impact. From the foregoing it is our conclusion that the trial court did not err in overruling the defendant's motion for a directed verdict at the close of all the evidence.
Defendant next contends that plaintiff's Instruction 2 was erroneous because it submitted permanent injuries, whereas, it is claimed, there was no evidence that plaintiff sustained any permanent injuries. Evidence that injuries will be permanent must show a reasonable certainty to that effect. State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428. Plaintiff's physician testified that two years after the accident plaintiff was still complaining of dizziness and headaches. The witness was asked:
"Q. What you were saying by that, doctor, that, based on reasonable medical certainty, you would expect those complaints would continue the rest of his life? A. That's correct".
He was asked if he could say "actually" that they would be permanent. He answered: "No more than I can tell you when I am going to die". The witness explained his opinion by saying that when a concussion of the brain is followed by certain complaints which a doctor knows would or could follow, the doctor assumes a connection between the two. Referring to plaintiff's dizziness and headaches from which he was still suffering, the doctor was asked:
"Q. Doctor, what would you say the reasonable certainty of those conditions existing on into the future is? A. I would assume that they are what are in the medical profession called permanent complaints.
"Q. They are permanent? A. Yes, sir".
At the trial plaintiff testified that about every three weeks he was having severe headaches for periods of about two days, preceded by loss of equilibrium. He also said he still had a stiffness in the neck and shoulder. For relief he still applies heat lamp and takes hot baths. We conclude that there was sufficient evidence to submit to the jury the permanency of plaintiff's injuries.
Defendant's next point is that plaintiff's Instruction 2 was erroneous in submitting future loss of wages without evidence to justify that element of damage. The instruction in question submitted to the jury the measure of damages, and among other things included these words: "and for such loss of wages you find from the evidence plaintiff has suffered and will in the future suffer by reason and on account of his injuries sustained on the occasion in question, not, however, to exceed $3400 for lost wages * * *". Plaintiff had testified that as a salesman he worked on a straight commission basis "no remuneration if there is nothing sold". He said his earnings in 1948, the year before the accident, were $9,400, an increase over $8,500 for 1947; that in 1949, the year of the accident, his commissions dropped to $6,000, a reduction of $3,400 under the previous year, and that he had lost no time in 1949 except as a result of the accident. He testified that in 1950 his earnings were about $9,200. The date of the trial was April 21, 1952. There was no evidence that plaintiff had lost any time because of the accident since returning to his work on full time in August, 1949, nor any evidence of any loss of earnings since 1949. On the contrary, his evidence showed a substantial increase in 1950.
The argument of the plaintiff on the submission of future loss of wages is that the instruction clearly limits recovery of wages to the $3,400 already lost in 1949, the year of the accident; that the evidence clearly showed his earnings that year were $3,400 less than the year before and that said loss was due solely to the accident. This testimony, plaintiff points out, was not objected to nor was any evidence to the contrary introduced. It is asserted that the jury could not have misunderstood the instruction and considered future loss of earnings in its verdict. The plaintiff testified that in 1950 his earnings were $9,200, but the trial court sustained objection to plaintiff's statement that: "I would have probably shown a slight increase again then or that's what I have been doing". It cannot be determined from the verdict what amount the jury allowed for loss of wages, whether the whole of the claimed $3,400 already lost in 1949, or only some portion thereof, or whether some amount allowed for wages was allowed by the jury which it found the plaintiff might lose in the future by reason of his injuries. The words of the instruction "not,however, to exceed $3400 for lost wages", which plaintiff contends had reference to wages in 1949 only and already lost, plainly does not withdraw from the jury the previous submission in the same instruction of the element of " loss of wages which the plaintiff will in the future suffer". In the absence of any evidence of loss of time from his employment or loss of income since 1949, thereafter to the date of trial, it clearly appears that the submission of future loss of wages was not supported by proof nor is it evident from the verdict that the jury understood that the recovery on this item was intended to be confined to the wages lost in 1949. For that reason we deem the plaintiff's Instruction 2 erroneous in the submission of the element of future loss of wages.
Since this case must be remanded it will not be necessary for us to consider the defendant's last assignment, namely, that the verdict was excessive.
Inasmuch as the only error found relates to the amount of the damages, the judgment should be reversed and the cause remanded with directions to retry only the issue of the amount of damages, and then enter judgment for whatever sum may be so found. Wilson v. Kansas City Public Service Co., 354 Mo. 1032, 1041, 193 S.W.2d 5. It is so ordered.
ANDERSON and RUDDY, JJ., concur.