Opinion
No. 42255.
July 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, F. E. WILLIAMS, J.
Coburn, Storckman Croft, Clem F. Storckman, St. Louis, for appellant.
Albright McKeown, St. Louis, for respondent.
Action for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in the operation of a bus. Verdict and judgment for defendant. The court sustained plaintiff's motion for a new trial on ground seven thereof which complained of the improper reception of evidence offered by defendant, from which order defendant prosecutes this appeal. The case is within the monetary jurisdiction of this court under Art. V, § 3, Const. of Mo. 1945, V.A.M.S., the "amount in dispute" being the sum demanded in the petition, $25,000.
Plaintiff, a pedestrian (colored man, 56 years of age), was injured between 7:30 and 8 A.M., April 1, 1949, in the City of St. Louis as the result of colliding with a westbound bus of the defendant as he was crossing Finney Avenue (from north to south) at a point some distance east of its intersection with Newstead. Whether the front end of the bus ran into him (as plaintiff contends), or whether, in leaving the curb on the north side of the street, he stepped into and against the side of the bus (as defendant contends) was the real point of contest at the trial.
The evidence for the admission of which the verdict was set aside was in relation to the arrest of plaintiff after the accident (a fact ushered into the case at an early stage of the trial through an unbidden disclosure thereof by plaintiff himself), together with like evidence respecting the bus operator — the first reference to the latter having come in by way of this retort of plaintiff's counsel to the above-mentioned voluntary statement of his client: "The operator in this case was arrested, too. Let's don't confuse the issues." References to the matter are sprinkled through the record, both sides apparently having indulged in free exchanges touching these subjects for whatever advantages might accrue to them. On the latter basis this court would be reluctant (if not foreclosed) to interfere with the order, unless, as defendant insists, it is not a matter of which plaintiff could complain because estopped by his own conduct in importing it into the case. See Thompson v. St. Joseph Ry., Light, Heat Power Co., 345 Mo. 31, 131 S.W.2d 574, and cases there cited.
Apart from the assignment directed at the sustention of the motion on the ground specified, defendant renews the position taken in its motion for a directed verdict (offered and overruled at the close of all the evidence) that no case was made for the jury, and hence submits that plaintiff could not have been prejudiced by the admission of the evidence in question, and that the granting of the motion, therefore, constituted reversible error. If defendant be correct in this contention, there will be no occasion to rule the other point. The case was submitted solely upon humanitarian negligence in failing to slacken the speed of the bus. We proceed, then, to an examination of the question of the sufficiency of the evidence to make a case on that theory. In such a situation the facts are, of course, to be viewed in the light most favorable to plaintiff. So envisaged, they tended to show the following:
Plaintiff was enroute from his home near the scene of the casualty to his place of employment at Granite City Steel Company, where he was supervisor of the cafeteria of the directors of the company, and had been there employed 34 years. The weather was "mild, kind of chilly," but not raining. Finney Avenue is 42 feet 2 inches wide, in the middle of which there was a white line marking the east and west traffic lanes. Plaintiff intended to catch an eastbound bus at the bus stop on the south side of Finney just east of Newstead. Such buses travel south on Newstead, and turn left (east) into Finney. Plaintiff was walking west on the north side of Finney, and when still east of the Newstead intersection he saw an eastbound bus turning, or about to turn, into Finney. His testimony on direct examination in this connection was: "I discovered a bus were going east. I stepped out about two steps from the curb, which was blocked by a truck that passed me, and after that truck passed I looked both ways, and the westbound bus was coming, then, about 150 feet down. I walked to the middle of the line out in the street. By getting there, this eastbound bus seemingly had speeded up, was going to fast. I didn't think it was going to stop. I whirls and as I whirled I discovered the westbound bus was crowding me. I headed for the [north] curbing as fast as I could. I couldn't quite make it, and it struck me on this [left] shoulder and knocked me down on the street."
Inasmuch as plaintiff's brief relies on his own testimony (and that of the bus driver) to make a case, we set forth all other material portions thereof bearing on the issue of submissibility as the same appears in the statement of facts prepared by defendant, and adopted by plaintiff, viz.:
"When he first saw the westbound bus it was about 150 feet east of him and was going about twenty-five miles an hour. At that time he was standing about a foot from the curb. When he next saw the westbound bus it was about twenty-five feet east of him, going about thirty miles an hour. The plaintiff started to run backwards and backed up as far as he could, but does not know how far he got. The `right, the north side, the north end of the bus,' made contact with him. On the other hand, plaintiff testified that he was in the `middle of the street' when the bus struck him and knocked him to the north.
"He was backing away from the front, he threw up his hand and ran backwards. The right front corner of the bus struck him. He did not know what part of his body the bus struck. In his judgment the bus was going about thirty miles an hour when it struck him and knocked him down. The left side of the bus was about in the middle of the street as it was proceeding westwardly. The accident occurred about seventy-five or one hundred feet east of the northeast corner of Newstead and Finney. He did not know if the bus driver slackened the speed of the bus at any time before it struck him.
* * * * * *
"On cross-examination, defendant had a drawing or plat of the intersection and the scene of the accident, marked as `Defendant's Exhibit A'. The scale was one inch to ten feet. To the best of plaintiff's knowledge, the accident happened about opposite the stop sign in the bus zone on the south side of the street which would be about ninety feet from the curb line of Newstead. Plaintiff was walking west on the north side of Finney with a Miss Miner who lived in his neighborhood. He saw the eastbound bus when it was coming south on Newstead at the corner. It was just approaching Finney. The bus turns east on Finney at that point, and he planned to take that bus going down Finney to Twelfth Street. He was planning on crossing the street to catch this eastbound bus. The plaintiff was just about standing on the white line in the middle of the street. At this time the eastbound bus was about twenty-five feet from him, going about thirty miles an hour. He looked to the east and the other bus was about twenty-five feet to his left out near the middle of the street. He whirled and ran back into the path of the westbound bus. The bus was crowding him so fast he backed up and tried to get out of the way of the westbound bus. He backed up from where he was. He does not know whether he whirled or ran backwards. He did back up.
"When he looked up and saw the westbound bus after he had stopped and tried to get back from the eastbound, it was right on him about twenty-five feet away. It is the plaintiff's left side that is injured. There is nothing wrong with his right side. He was standing right in the center of the street and does not know what happened to the eastbound bus after he started to back up. The bus did not run over him.
* * * * * *
"The plaintiff testified he had never driven an automobile and could not swear the bus was going twenty-five miles an hour or thirty miles an hour, but knew it was going fast. He then further testified: `All I know sir, I tried to get out of its way and the bus hit me; that's all I can say. The distance and how fast, I can't tell you.'"
The testimony of the operator of the westbound bus (relied on by plaintiff, particularly that in italics) was to this effect: That "at approximately one hundred feet east of Newstead he heard a woman scream on the north side of Finney Avenue, and he started to stop his bus. He looked in the direction of the scream and he caught a glimpse of a person through the right side of his front door. The man was three or four feet away running south towards the bus. The bus was traveling about twenty miles per hour at the time. The bus traveled approximately fifty feet after he started to stop." (The witness further testified that directly thereafter he "heard a thud * * * on the side of the bus * * * behind the front door," and the bus was then brought to a stop.)
Plaintiff's theory is, and his brief expressly concedes that he "was not in peril until he was in the center of Finney Avenue." At that time the bus was 25 feet away, and, under his own testimony, moving at the rate of 30 miles an hour, or 44 feet per second. If he is entitled to the bus driver's testimony as to speed, then "about 20" m.p.h., or 29.33 per second, is the rate involved. In other respects the bus driver's testimony was certainly at war with plaintiff's own testimony and his theory of the case.
The essence of the claim of fatal infirmity inhering in plaintiff's case is that there was no evidence going to the defendant's "present ability, with the means at hand, to have averted the impending injury." There was concededly no proof whatever of reaction time. The record is barren of direct evidence as to the time and space that would be required for the bus to have slackened its speed. Neither the kind of motive power, type of braking equipment, nor size of the bus in question was developed. The only direct evidence with regard to slackening speed was that on cross-examination of the driver of the other or eastbound bus to the effect that "you might cut down" the speed of the particular Diesel bus he was driving on that occasion from 25 to 10 m.p.h., in 25 feet.
Plaintiff relies on the landmark case of Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. There is striking similarity between that case and the one at bar in reference to the manner in which the injuries were sustained, but there the similarity ends. The proof in the Banks case was not deficient in the respect here charged. On the contrary, it affirmatively appears that the very element here lacking was present in that case.
It is plaintiff's contention that the testimony of the westbound bus driver to the effect that he traveled 50 feet after he started to stop constituted "substantial evidence that he could have either stopped or checked his speed before he struck plaintiff." As stated, the case was submitted on failure to slacken speed (not failure to stop), and this was the element involved in Taylor v. Missouri, K. T. R. Co., 357 Mo. 1086, 212 S.W.2d 412, a case decisive of this one. Paraphrasing this court's language in that case, it may be said that how much the speed of the bus could have been slackened in going 25 feet, or a less distance if any allowance is made for reaction time, and how far plaintiff had to travel to a place of safety would have been matters of pure conjecture for the jury and are such for us. There was no evidence from which the jury could reasonably find that after the operator saw, or should have seen plaintiff in a position of peril, he "`had the present ability, with the means at hand, to have averted the impending injury'". Banks v. Morris Co., supra. [302 Mo. 254, 257 S.W. 484] See, also, Hunt v. Chicago, M., St. P. P. R. Co., 359 Mo. 1089, 225 S.W.2d 738, and cases therein cited.
There is no estoppel on the part of defendant "to complain of the humanitarian theory," (as plaintiff urges) in having procured the giving of a sole cause instruction as well as one which told the jury, in effect, that if the plaintiff entered a position of imminent peril when it was too late for the operator of the bus, in the exercise of the highest degree of care, etc., to have slackened the speed and thus avoided the collision, then their verdict should be for defendant. This is not a situation where an appellant is undertaking to complain of error in an instruction which is the converse of one requested by himself. The point here relied on is that of the insufficiency of the evidence to make a case for the jury.
Having held that plaintiff failed to make a case for the reason above pointed out, it follows that the order granting the new trial for the error specified should be and it is reversed, and the cause remanded with directions to reinstate the judgment for defendant.
TIPTON, J., concurs.
ELLISON, J., not sitting.