Opinion
No. 28049.
March 20, 1951. Rehearing Denied April 20, 1951.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, FRANCIS E. WILLIAMS, J.
Edward W. Fredrickson, William L. Mason, Jr., St. Louis, for appellant.
Coburn, Storckman Croft, Thomas L. Croft, and Rexford H. Caruthers, all of St. Louis, for respondent.
This suit was brought by Marion Nickelson, against the St. Louis Public Service Company, for damages arising out of injuries, which he sustained when he was struck by one of defendant's streetcars. The jury returned a verdict for the plaintiff in the sum of five thousand dollars but the trial court ordered a new trial upon the defendant's motion. It is from the order sustaining the motion for a new trial that the plaintiff duly appealed to this court. After the appeal the plaintiff died, and upon proper suggestion of his death to this court his administratrix, Pearl Newman, was substituted as the party appellant.
The occurrence out of which the action arose took place on Broadway, in the City of St. Louis, at a point slightly north of the intersection of Salena Street. The plaintiff was a man sixty-five years old and lived at 3700 South Main Street, which is to the east of Broadway. He stated that on the morning of March 17, 1949, the day of the accident, he had been cutting wood. He returned home for lunch and, after he had eaten, he went to Broadway to buy some tobacco for himself and a bottle of wine for a neighbor. He reached Broadway and started to cross it, but he did not remember exactly where. When asked about the accident, he stated: "I don't know; I don't know so very much. I started to go across and I got tangled up out there with the cars. I stopped for one. Any way I looked there was either a streetcar there or an automobile and I don't know whether the automobile hit me or a streetcar, because the next thing after I knowed, why, it was two or three day later when I come to myself at the hospital."
He said that after he got out into the street he saw a car coming from the north and waited for it to pass, and when he saw the one from the south it was "right at" him. He heard no bell sounded. He also testified that he had not been drinking before the accident, except for two bottles of beer that he had before breakfast.
A truck traveling in the same direction as the streetcar, but east of it, was being driven by a man named McCarthy, and with him was a passenger named Obrecht. Both of them were called as witnesses for the plaintiff.
Obrecht stated that the truck was going northwardly, as was the streetcar, and that the truck was about even with the center door of the car. He first saw the plaintiff when the truck driver said that a "streetcar was nearing to hit a fellow". At that time Nickelson was out on the track past the east rail and moving backwards toward the curb. He weaved as if he was going forward again. Obrecht said that the streetcar, when he first saw it, was about 40 or 45 feet away from the plaintiff and it was traveling at a speed of about 10 miles per hour and going up a slight grade to the north. He said that Nickelson looked like he could have been sick or drinking and that he was weaving in a stooped position back and forth on the east rail, getting about a foot to the west of it and then backing up two feet. At no time was he more than 2 feet east of the east rail, and he didn't appear to be a normal pedestrian. Obrecht did not hear any bell sounded, although there was nothing to obstruct the view of the operator of the streetcar, but he did see sparks fly from the rails as the brakes were applied 5 feet from the plaintiff. Nickelson was struck by the right front of the streetcar and after the accident he was lying in the street with one foot on the rail of the car track.
McCarthy, the driver of the truck, said that he first saw Nickelson come from between two parked automobiles and start westwardly across Broadway, but moving diagonally slightly to the north. At the time McCarthy was about to pass the streetcar, which was a hundred yards to the south of the point where Nickelson appeared. After seeing Nickelson he did not pass the car but kept the truck slightly to the rear. Nickelson seemed to be sick or drunk and walked like an old man. He stopped when he got within 5 feet of the rails, then moved forward, but he never got out on the rails or moved backwards. McCarthy said that the streetcar never changed its speed or sounded a warning. He testified that he was an old quail hunter and when he saw that the streetcar had a "beautiful bead" on the plaintiff he said to Obrecht "Watch the streetcar hit this man." He said that he could see that the streetcar would hit the plaintiff unless it reduced its speed.
The operator of the streetcar stated that he first saw Nickelson when he came out from between two parked automobiles on the east side of Broadway and he walked almost to the east rail without stopping "the first time". He observed that he was unsteady on his feet but could not tell whether it was from drinking or whether he was a cripple. The operator also stated that after stopping near the rail, Nickelson moved back about 5 feet, and the speed of the car was reduced to 7 miles an hour, but that when it was only 5 feet from Nickelson he stepped forward toward the rail and into the side of the car. The operator also stated that he applied the brakes and stopped in 9 feet. He said that a normal stop at the speed he was traveling would take from 14 to 30 feet.
The evidence related seems to be sufficient to pass upon the points raised by this appeal, for the trial court sustained the motion for a new trial on "ground eleven thereof". Ground eleven states: "The court erred in giving and reading to the jury erroneous, prejudicial, illegal, contradictory, misleading and confusing instructions on the part of and at the request of the plaintiff. The court erred in not modifying said instructions and erred in giving and reading to the jury each and every one of said instructions asked by plaintiff and erred in failing to modify each and every one of said instructions."
The only instruction that is before us is the one that the defendant considers erroneous. Mo.R.S. 1949, § 510.330, provides in part: "Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."
Rule 1.10, Supreme Court of Missouri, provides: "When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. * * *"
When a trial court grants a new trial on the grounds of erroneous instructions, under the statute and rule, it should declare what instruction it considers erroneous and state with some detail wherein the error lies. When, as here, it simply sustains the motion on broadly stated grounds, the movant is charged on appeal with the burden of pointing to the erroneous instruction and to the error which it is purported to contain. Davis v. Kansas City Public Service Co., Mo.Sup., 233 S.W.2d 669; Johnson v. Kansas City Public Service Co., Mo.Sup., 228 S.W.2d 796.
There were only two instructions submitted by the plaintiff and given by the court, and the defendant only seeks to have us hold erroneous the instruction designated as instruction No. 3. So we need not consider the other instruction given. Davis v. Kansas City Public Service Co., supra; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458.
Instruction No. 3 was the plaintiff's main instruction and submitted the case on the humanitarian theory of failure to stop or failure to sound a warning. The first complaint leveled against it is that it unduly extended the legal limits of the zone of peril. The hypothesized facts relating to this are as follows: "If you find and believe from the evidence that plaintiff was upon Broadway at the time and place shown to you in the evidence; and if you further find and believe from the evidence that at said time and place he was in a position of imminent peril of being struck by the streetcar described in the evidence;". It is contended that the instruction permitted the jury to find that the plaintiff was in a position of imminent peril at any place on Broadway, but it can be seen that the instruction restricts the finding to the time and place on Broadway where the plaintiff was in danger of being struck by the streetcar. This does not necessarily mean that he should be directly upon the tracks. If he was oblivious to his peril and his actions indicated that he was going to proceed upon the tracks, then the operator of the streetcar had no right to assume that he would stop short of them. As stated in Neill v. Alton R. Co., Mo.App., 113 S.W.2d 1073, loc.cit. 1075: "* * * if there is something about the plaintiff's own actions or conduct, or the movement of his vehicle, which is indicative of the fact that he is oblivious to his peril or for any reason cannot or will not stop before coming upon the track, then the engineer no longer has the right to assume that the plaintiff will act for his own protection, and in that event the humanitarian doctrine imposes upon the engineer the duty of doing what he may to save the plaintiff, so long as in so doing he does not endanger himself or other persons."
Under such circumstances, the zone of peril becomes a jury question. Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S.W.2d 1043.
It may be added that the instruction must be read with other instructions given. As stated in Piehler v. Kansas City Public Service Co., Mo.Sup., 226 S.W.2d 681, loc. cit. 684: "Instructions are to be read as a whole and in some instances an indefinite or ambiguous requirement to find some affirmative fact or some negative defensive element essential to a plaintiff's verdict may be cured by a definite requirement with respect thereto in other instructions."
Instruction No. 2 preceded the one complained of, and it read as follows: "By `position of imminent peril', as used in the instructions of the Court, is not meant a place where there is just a mere bare possibility of an injury occurring; it means a place and position wherein there is certain danger."
From this it appears that if instruction No. 3 left any doubt about the extent of the zone of peril, it was sufficiently restricted by the preceding instruction, and instruction No. 3 is therefore without error in this particular.
It is next contended that the instruction was erroneous in stating that, even though the plaintiff himself was guilty of negligence, which directly contributed to his injury, the jury should find for him if it found the defendant negligent under the humanitarian negligence hypothesized. It is asserted that this clause was erroneous because it was in conflict with the sole cause instruction given at the request of the defendant. We are cited to Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, wherein the court held that while it was proper to inform the jury that the contributory negligence of the plaintiff is not a defense, the instruction given was too broad. That instruction did not limit to mere contributory negligence the negligence for which the plaintiff might have been guilty, and the court stated that there might have been a finding for the plaintiff under the instruction given, even though his negligence had been the sole cause of the injury.
The Smithers case has been discussed and so distinguished in Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384. The "even though" clause of the instruction complained of here does not warrant a verdict for the plaintiff if his negligence was the sole cause of the injury, but only if it contributed to the injury. It is not, therefore, in conflict with the sole cause instruction given. State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233.
The respondent contends that the evidence as to plaintiff's obliviousness is contrary to his own testimony and cannot be considered. This proposition need not be dealt with at any length, for we fail to find that his testimony is contrary to the other evidence offered. All that can be gathered from the plaintiff's testimony is that he was in a state of utmost confusion and that while he was conscious of a streetcar coming from the north he was oblivious to the car approaching from the south until it was upon him.
One further point urged is that the plaintiff introduced no evidence as to the stopping distance, and it is asserted that the defendant's testimony that he could make a normal stop in from 14 to 30 feet and actually made the emergency stop in 9 feet, is not available to the plaintiff. It is contended that since the speed of the car was said to have been about 10 miles per hour by one of plaintiff's witnesses, and since the stopping distance testified to by the operator was for a speed of 7 miles per hour, there is a conflicting theory of fact that makes the operator's testimony unavailable to the plaintiff. The witnesses were dealing in estimates as to speed, distance, and stopping space. From both the testimony of the operator, who said he saw the plaintiff when he was 50 feet from the point of collision, and the other witnesses, there appeared no conflict of theory, such as was present in the case of Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, to which we are cited. In that case there was no evidence as to where the car was or the rate of speed at which it was traveling, and the court held there was no proof that the car could have been stopped in time to have avoided the collision. In the case under consideration the operator said he stopped the car in 9 feet, and the plaintiff may have the advantage of that testimony for it is not in conflict with any factual theory of his case. Obrecht testified that the plaintiff was weaving about the east rail when the car was 40 to 45 feet away from him, and this, coupled with the fact that the car stopped in 9 feet, was sufficient evidence of the operator's ability to stop the car in time to avoid striking the plaintiff.
For the foregoing reasons, it is the recommendation of the Commissioner that the order of the trial court granting respondent a new trial be reversed and that the cause be remanded with directions to reinstate the verdict and judgment.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The order of the trial court granting respondent a new trial is, accordingly, reversed and the cause remanded with directions to reinstate the verdict and judgment.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.