Opinion
No. 41223.
June 13, 1949. Rehearing Denied, July 11, 1949.
Plaintiff pedestrian was struck by defendant's automobile at a street intersection and recovered a judgment. There was a submissible humanitarian case on each of the issues of failure to warn, swerve or stop. Plaintiff's estimate of defendant's speed was not conclusive. The verdict was not excessive.
1. NEGLIGENCE: Submission in Disjunctive: Evidence Required for Each Charge. Where plaintiff submitted three charges of evidence in the disjunctive, it was necessary that he make a substantial prima facie case on all three charges.
2. NEGLIGENCE: Motor Vehicles: Pedestrian Struck: Submissible Case of Failure to Warn or Swerve. Defendant saw a group of pedestrians standing in the street near the curb at a street intersection, but nevertheless turned in their direction to round the corner, and struck plaintiff. Defendant could have sounded his horn or swerved to the left. There was a submissible humanitarian case of failure to warn or swerve.
3. NEGLIGENCE: Motor Vehicles: Evidence: Pedestrian Struck: Failure to Stop: Plaintiff's Speed Estimate Not Conclusive: Submissible Case. Plaintiff's testimony that defendant's automobile was going about 25 or 30 miles per hour did not commit plaintiff to such speed, and defendant's testimony on cross-examination made a submissible case that his automobile could have been stopped in time to avoid striking plaintiff.
4. DAMAGES: Verdict Not Excessive. A verdict of $10,000 for a fractured leg and other injuries was not excessive.
Appeal from Circuit Court of City of St. Louis; Hon. William H. Killoren, Judge.
AFFIRMED.
Moser, Marsalek, Carpenter, Cleary Carter, F.X. Cleary and William H. Allen for appellant.
(1) Plaintiff was not in a position of imminent peril until he took the last step, and since there is nothing in the evidence to support a finding that thereafter there was time or opportunity for defendant to do anything to avoid the injury, no recovery may be had under the humanitarian rule. Johnson v. Kansas City Pub. Service Co., 214 S.W.2d 5; Blaser v. Coleman, 213 S.W.2d 420; Lotta v. Kansas City Pub. Service Co., 342 Mo. 743, 117 S.W.2d 296; Steuernagel v. St. Louis Pub. Service Co., 211 S.W.2d 696; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Kirkpatrick v. Wabash R. Co. 213 S.W.2d 765; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Shepherd v. Chicago, R.I. P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985. (2) A situation of imminent peril is the basic fact of the humanitarian doctrine. No duty whatever arises under that doctrine unless and until a situation of imminent peril comes into existence; and when such peril rises, the doctrine seizes upon the situation as it then exists and for the first time places a duty on the party operating the instrumentality to thereafter avoid injury to the person in such peril if this may be done by the exercise of due care with the means and appliances at hand. Steuernagel v. St. Louis Pub. Service Co., 211 S.W.2d 696; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; Blaser v. Coleman, 213 S.W.2d 420; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. (3) A situation of "imminent peril," in which the plaintiff must be placed to impose a duty upon the defendant under the humanitarian doctrine, must be a certain, imminent, immediately impending peril. A bare possibilty or even likelihood of injury to the plaintiff is not sufficient. Blaser v. Coleman, 213 S.W.2d 420; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713; Wallace v. St. Joseph Ry., Light, Heat Power Co., 336 Mo. 282, 77 S.W.2d 1011; Ziegelmeier v. East St. Louis Sub. R. Co., 330 Mo. 1013, 51 S.W.2d 1027. (4) As defendant's automobile approached Grand Boulevard from the west plaintiff was in a place of perfect safety, away from the path of the line of eastbound automobiles at the rear of which defendant was traveling. Defendant had the right to assume that plaintiff would remain in such place of safety, and was under no duty under the humanitarian rule to take any steps to avoid injuring plaintiff prior to the time when the latter stepped to the north as the automobile was passing him and turning to the right, and thus came in contract with the right side thereof. Johnson v. Kansas City Pub. Serv. Co., 214 S.W.2d 5; Blaser v. Coleman, 213 S.W.2d 420; Shepherd v. Chicago, R.I. P. Ry. Co., 335 Mo. 606, 72 S.W.2d 985; State ex rel. St. Louis-S.F. Ry. Co. v. Reynolds, 289 Mo. 479, 223 S.W. 219; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (5) Since plaintiff alleged that defendant's automobile was operated at a high, excessive and dangerous rate of speed, and testified that from the time he first saw it until the impact it was proceeding at the rate of 25 or 30 miles an hour, he is bound thereby and cannot avail himself of conflicting testimony by defendant as to the speed of the vehicle. Johnson v. Kansas City Pub. Serv. Co., 214 S.W.2d 5; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Steuernagel v. St. Louis Pub. Serv. Co., 211 S.W.2d 696; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847. (6) No recovery may be had on the theory that defendant was negligent in failing to stop his automobile after the peril arose, not only for the reason that there was no testimony as to the distance in which the automobile could have been stopped going 25 or 30 miles an hour, but because plaintiff's own testimony shows that his injury followed forthwith upon his stepping into a position of peril. (7) Nor may a recovery be had on the theory that defendant was negligent in failing to swerve his automobile away from plaintiff after the peril arose. According to plaintiff's testimony the automobile was in the very act of passing him, and turning to the right, when he stepped forward and came in contact therewith. It is inconceivable that after the peril thus arose defendant could have avoided the injury by swerving his automobile to the left. Such a finding could rest only on speculation and conjecture. Steuernagel v. St. Louis Pub. Serv. Co., 211 S.W.2d 696; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638. (8) And since it is conceded that plaintiff saw the automobile when it was 40 or 50 feet away and watched it until the impact causing his injury, and hence needed no warning of its approach, no recovery may be had on the theory that defendant was negligent in failing to sound a warning of the approach of the automobile. Obliviousness is a necessary element in making a humanitarian case of failure to warn. Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 572, 66 S.W.2d 533; Latta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Clark v. Atchison, T. S.F.R. Co., 319 Mo. 865, 6 S.W.2d 954. (9) The settled rule is that where an instruction covering the case and directing a verdict submits two or more charges of negligence in the alternative, authorizing a verdict on any thereof, then all such charges must be supported by the evidence or the instruction will be held erroneous. Carlisle v. Tilghmon, 159 S.W.2d 663; Setser v. St. Louis Pub. Serv. Co., 209 S.W.2d 746; Miller v. Kansas City Pub. Serv. Co., 238 Mo. App. 247, 148 S.W.2d 219; Monsour v. Excelsior Tobacco Co., 15 S.W.2d 219. (10) The verdict in the sum of $10,000 is excessive. Arno v. St. Louis Pub. Serv. Co., 356 Mo. 584, 202 S.W.2d 987; Clark v. Mississippi River Bonne Terre Ry. Co., 324 Mo. 406, 23 S.W.2d 174; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Asby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Ruppel v. Clayes, 230 Mo. App. 699, 72 S.W.2d 883; Johnston v. St. Louis, 138 S.W.2d 666.
J.C. Guise, Jr., and Everett Hullverson for respondent: Douglas MacLeod of counsel.
(1) Respondent is entitled to the benefit of all evidence adduced by the appellant which is not directly at war with his own theory, and is not absolutely bound by his own testimony as to time, speed, or distance, when such testimony was based on estimates or approximations. Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Dennis v. Wood, 211 S.W.2d 470; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406; Pearson v. K.C. Pub. Serv. Co., 217 S.W.2d 276. (2) Respondent is entitled, in a case such as this, to the benefit of calculations of a very minute character respecting speed and distance. Zickefoose v. Thompson, 347 Mo. 479, 148 S.W.2d 784; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633; Gerran v. Minor, 192 S.W.2d 57. (3) The evidence viewed in the light most favorable to the respondent was sufficient to sustain the verdict (cases cited below are a few pertinent pedestrian-automobile cases, where the reviewing court found a submissible humanitarian case). Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Brown v. Callicotte, 73 S.W.2d 190; Allen v. Kessler, 64 S.W.2d 630; Steger v. Meehan, 63 S.W.2d 109; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Silliman v. Munger, 329 Mo. 235, 44 S.W.2d 159; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Breitschaft v. Wyatt, 167 S.W.2d 931; Hodgins v. Jones, 64 S.W.2d 309; Riechers v. Meyer, 28 S.W.2d 405; Erxleben v. Kaster, 21 S.W.2d 195; Nabe v. Schnellman, 254 S.W. 731; Leahy v. Winkel, 251 S.W. 483; Schinogle v. Baughman, 228 S.W. 897. (4) The question of the existence of imminent peril is ordinarily a question of fact for the jury. Johnson v. Hurck Delivery Service, 353 Mo. 1207, 187 S.W.2d 200; Pennington v. Weis, 184 S.W.2d 416. (5) It is, of course, not necessary to the existence of a "position of peril" that the pedestrian be oblivious to the peril. Obliviousness is a subsidiary, evidentiary matter. Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. (6) Obliviousness of the peril, or its absence, on the part of the pedestrian may determine the zone of peril in a proper case. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Breitschaft v. Wyatt, 167 S.W.2d 931. (7) "Obliviousness of peril" does not require obliviousness of the existence or approach of the oncoming automobile. A pedestrian may be aware of the approach and yet oblivious to peril. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Allen v. Kessler, 64 S.W.2d 630; Wulsch v. Inland Valley Coal Co., 63 S.W.2d 423; Nabe v. Schnellman, 254 S.W. 731; Schinogle v. Baughman, 228 S.W. 897. (8) Where the driver knows (and the pedestrian does not know) of his intention to change the course of his automobile from its apparent path, the zone of peril is extended, and the humanitarian duty exists before the change in course is made, as well as after. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Allen v. Kessler, 64 S.W.2d 630; Breitschaft v. Wyatt, 167 S.W.2d 931; Nabe v. Schnellman, 254 S.W. 731; Schinogle v. Baughman, 228 S.W. 897. (9) There was sufficient evidence to sustain the submission of failure to stop. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Allen v. Kessler, 64 S.W.2d 630; Steger v. Meehan, 63 S.W.2d 109; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Silliman v. Munger, 329 Mo. 235, 44 S.W.2d 159; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; Hornbuckle v. McCarthy, 295 Mo. 162, 243 S.W. 327; Riechers v. Meyer, 28 S.W.2d 405; Erxleben v. Kaster, 21 S.W.2d 195; Nabe v. Schnellman, 254 S.W. 731; Leahy v. Winkel, 251 S.W. 483; Schinogle v. Baughman, 228 S.W. 897. (10) There was sufficient evidence to sustain the submission of failure to swerve. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Brown v. Callicotte, 73 S.W.2d 190; Steger v. Meehan, 63 S.W.2d 109; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 440; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Silliman v. Munger, 329 Mo. 235, 44 S.W.2d 159; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Riechers v. Meyer, 28 S.W.2d 405; Nabe v. Schnellman, 254 S.W. 731; Leahy v. Winkel, 251 S.W. 483; Schinogle v. Baughman, 228 S.W. 897. (11) There was sufficient evidence to sustain the submission of failure to warn. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Allen v. Kessler, 64 S.W.2d 630; Steger v. Meehan, 63 S.W.2d 109; Gray v. Columbia Terminals, 331 Mo. 73, 52 S.W.2d 809; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327; Breitschaft v. Wyatt, 167 S.W.2d 931; Schinogle v. Baughman, 228 S.W. 897. (12) The verdict was not excessive. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935 ($8695 — death of eight year old boy); Webb v. M.-K.-T.R. Co., 342 Mo. 394, 116 S.W.2d 27 ($10,000 — permanent sacroiliac sprain, 53 year old man); Byars v. St. L. Pub. Service Co., 334 Mo. 278, 66 S.W.2d 894 ($10,000 — 72 year old man, broken tibia and fibula resulting in permanent injuries, with $3000 lost earnings): Bowman v. Standard Oil Co. of Indiana, 350 Mo. 958, 169 S.W.2d 384 ($10,000 — 61 year old woman, fracture of femur, slight injury to hip and shoulder).
This is a suit for damages for personal injuries sustained by the plaintiff-respondent, a pedestrian, when struck by the automobile of the defendant-appellant at the southwest corner of the intersection of Grand Avenue and Lindell Boulevard in St. Louis on March 7, 1947, about 11 o'clock a.m. The plaintiff recovered a jury verdict for $10,000. The defendant appeals contending the evidence showed the plaintiff walked against and collided with the automobile instead of it striking him; and that he made no case for the jury in any view, or at least not on all the three theories submitted by his principal instruction in the disjunctive; and that the damages awarded were excessive.
The plaintiff's petition contained six allegations of primary negligence, and one of negligence under the humanitarian doctrine. But he abandoned the allegations of primary negligence, and submitted his case to the jury solely on the humanitarian theory of defendant's failure to exercise the highest degree of care in three alternative particulars, namely: by stopping, or swerving; or sounding a warning, after seeing or being dutybound to see the plaintiff in a position of peril. A great number of decisions have been cited by counsel on both sides, but it seems to us the main underlying issue must turn on questions of fact.
The plaintiff was the only witness in his own behalf except three medical witnesses who testified on the nature, extent and duration of his injuries. Grand Avenue runs north and south and Lindell Boulevard east and west, intersecting at right angles. Plaintiff testified he was on the sidewalk at the southwest corner of the intersection waiting to cross Lindell to the Melbourne Hotel at the northwest corner. Five or six other pedestrians also were there. At the outset the signal lights favored traffic moving east and west on Lindell. The group were waiting for the lights to change and release north and south traffic on Grand Avenue. From his position plaintiff could have looked 90 degrees east over his right shoulder and seen the Lindell traffic light at the southeast corner of the intersection change to red. Or he could have looked to the northeast corner of the intersection and seen the Grand traffic light change to green. From the testimony of a witness for defendant, it appears that in the process of changing from green to red or vice versa, the lights would show an intermediate amber color.
Plaintiff testified he did not see the signal lights change. But he did see the Grand Avenue traffic start to move south, and the others in his group of pedestrians advanced north onto the Lindell Boulevard pavement some three to six feet out from the south [721] sidewalk. He went along with them and was furthest east, about where the white lines for the north and south cross-walk were marked on the pavement. One of the photographs in evidence, Plaintiff's Exhibit 23, is set out at the end of this opinion. It looks west on Lindell Boulevard from east of Grand Avenue. It shows automobiles parked westerly along both the north and south curb lines of Lindell Boulevard for a considerable distance, beginning a car length or two (estimated) west of the line of Grand Avenue and a fire hydrant at that corner. A witness for defendant testified there were two traffic lanes on each side of the center line on Lindell in addition to the parking space on the two sides.
Apparently the group of pedestrians had stepped out into the open space on the south side of Lindell east of the parked automobiles. This group of pedestrians may have "jumped the gun" a little in moving out into the street, or have started as soon as the traffic light on Grand Avenue changed from red to amber. At any rate the eastbound line of motor traffic on Lindell was still traveling east when the pedestrian group moved out abreast from the south side of the street to a position three to six feet north of the south curb. The motor traffic was still further out moving parallel to and south of the center line of the street. Defendant's automobile was the last in the line or nearly so. Plaintiff testified that he could see it advancing 40 to 50 feet away at a speed which he estimated to be 25 or 30 miles per hour. The automobile continued at undiminished speed without sounding a warning, and when up near the west line of Grand Avenue suddenly made a turn to the right into Grand Avenue, cutting the corner and sideswiping and striking plaintiff with the right front fender and breaking his leg.
On cross-examination plaintiff stated he stood in the street (Lindell) three to six feet north of the south sidewalk. Being asked about a deposition he had given, where he said he had started to take "one or two steps", he answered "I made one step when he made a turn and hit me unexpectedly." Continuing, he said the automobile was pretty close when he took his first step — it must have been because it hit him when it made a quick turn. Later he said the automobile was traveling out in the middle of the street, and for that reason the pedestrians had room to take a step or two out from the curb. And after that he estimated the distance between the moving automobile line and the standing pedestrians at five or six feet.
The defendant testified he reached the rear of the standing line of motor cars on Lindell just about the time the traffic light turned green and permitted them to go forward across Grand. He saw the group of pedestrians standing in the cross-walk at the southwest corner of the intersection. When he reached that point he was hardly moving and the same was true of the cars ahead of him. He said he was not traveling over 2-4 miles per hour, and when he began to make a right turn into Grand Avenue he heard a brushing sound on the right side of his automobile and saw the plaintiff's face through the right rear window. The defendant declared he stopped within a foot. On cross-examination he said his automobile was about half way in its southeast turn when he stopped, and was headed southeast 10 or 12 feet east of the cross-walk, but still within the south boundary line of the intersection. After the collision the plaintiff was lying on the pavement 2 or 3 feet east of the north and south cross-walk line and about 12 feet north of the south line of the intersection.
Defendant's witness Jennings testified that plaintiff stepped off the curb at the intersection and walked out two or three steps into the right rear fender of defendant's automobile, as the latter was swerving to the right onto Grand Avenue. He didn't remember that five or six other pedestrians also were out in the street, and thought defendant's automobile was travelling at the usual speed for a motorist with the traffic light in his favor. Another witness for defendant (Miss Hayden) said she and a group of pedestrians at the intersection had stepped off the curb onto the pavement one or two steps ahead of the traffic light change on Grand Avenue. She didn't see defendant's automobile until just before the casualty when "the man walked into the side of the car or was hit by the car." But she said it was travelling at ordinary speed, [722] and apparently conceded it swerved to the right, though she was equivocal as to that.
On these facts the defendant-appellant makes the following legal contentions and cites authority therefor. First, he maintains that since plaintiff submitted his three charges of humanitarian negligence (failure to stop or to swerve or to warn) in the disjunctive it was incumbent on him to make a substantial prima facie showing on all three charges. The authorities he cites so hold. Setser v. St. L. Pub. Serv. Co. (St. L. Ct. Apps.) 209 S.W.2d 746, 752(10); Carlisle v. Tilghmon (Mo. Div. 2) 159 S.W.2d 663, 665(4); Martin v. Springfield Water Co. (Mo. App.) 128 S.W.2d 674, 682(9); Monsour v. Excelsior Tobacco Co. (Mo. App.) 115 S.W.2d 219, 224(14); Whitehead v. Fogelman (Mo. Div. 2) 44 S.W.2d 261, 263(5).
Secondly defendant contends plaintiff failed to make a substantial showing on any of those three charges. Passing for a moment the question whether plaintiff made a submissible case on failure to stop, we think he did make a case for the jury on failure to swerve and warn, even assuming the defendant's automobile was moving at a speed of about 25 to 30 miles per hour as plaintiff estimates (and defendant denies). He saw the group of pedestrians there and nevertheless turned in their direction. The physical facts he narrates show that. He could have sounded his horn and attracted attention to his approach, and he could have swerved to the left if a collision seemed imminent.
The plaintiff could have been, and on his testimony was, in a position of peril without knowing it. He testified the defendant was driving his automobile eastwardly on the right side of and close to the mid-line of Lindell Boulevard at a speed of about 25 miles per hour, and appeared to be intending to continue on east across Grand Avenue. Hence plaintiff had no apprehension of being struck. But the defendant had the fixed intention of turning to the right and suddenly did so, thereby exposing plaintiff to imminent peril from which he could not escape.
Returning to the question whether the plaintiff made a submissible showing that the defendant could have stopped his automobile before the collision. Defendant invokes Elkin v. St. L. Pub. Service Co., 335 Mo. 951, 958(4), 74 S.W.2d 600, 603-4(8), where the plaintiff tried his case on the theory that the speed of a streetcar was 25 or 30 miles per hour. But he failed to offer any evidence as to the distance in which the streetcar could have been stopped, going at that speed. The decision held he failed to make a prima facie case that the casualty could have been averted by stopping the streetcar. On the other hand, plaintiff relies on State ex rel. Thompson v. Shain, 351 Mo. 530, 546-8(1). 173 S.W.2d 406, 407(2). That decision held that where a plaintiff had testified the speed of a train was about 25 to 30 miles per hour, it was a mere guess or estimate and he was not conclusively bound by it as bearing on the issue whether the train could have been stopped in time to prevent the collision.
We think the instant case comes within the latter decision. The plaintiff here on direct examination testified the defendant's automobile "was going about 25 miles per hour." Later he said it "was going about 25 or 30 miles an hour" when he first saw it. On cross-examination he testified the automobile "was at all times going 25 or 30 miles per hour," and that he "would judge" it was going at that speed. Defendant-appellant's theory is that the foregoing testimony absolutely committed the plaintiff to the theory that defendant's automobile was travelling at 25 to 30 miles per hour, and that at that speed it could not be brought to a stop within 40 to 50 feet, or at least that plaintiff offered no testimony to that effect. But defendant is in error on that point.
On cross-examination defendant was asked whether he could stop his automobile going 25 or 30 miles per hour in 10 or 15 feet with good brakes, and he answered "I don't know; I never checked on that." Then he was asked whether his automobile had good four-wheel brakes, and he said it did. He was then asked if the automobile was about 15 feet long and he said he thought it was. Then he was asked "Couldn't you stop in a machine length going 20 or 30 miles an hour, under the circumstances present there?" And he answered [723] "I think you can." He further stated that in making that kind of a stop the wheels would put a skid mark on the pavement.
Defendant-appellant also contends that the $10,000 verdict of the jury was excessive. The plaintiff suffered fracture of the neck of the right femur and developed pneumonia. Surgery was necessary to repair the fracture but it had to be postponed for two weeks until after the plaintiff had recovered from the pneumonia. The fracture was repaired by cutting into the region of the hip joint and fastening together the two parts of the femur with pins and a Peterson nail. Plaintiff was confined to the City Hospital for five weeks and was away from his employment for about 2-½ months during which time he earned no money. His salary as a clerk in the city assessor's office had been $225 per month. He was required to use crutches for 1-½ months. His hospital bill was $300. He testified in June, 1948, fifteen months after his injury, that the fractured leg and his back hurt him all the time, and kept him awake almost all night. He already had high blood pressure and the injury raised it. X-ray pictures showed periostitis and arthritis which usually produce pain. At the time of trial he still needed medical advice and took heat treatments by electric pads and hot baths. Plaintiff was 64 years old and married. Under this evidence we think no remittitur is called for, in the light of such cases as Webb v. M.-K.-T. Rd. Co., 342 Mo. 394, 399(3), 116 S.W.2d 27, 30(8); Byars v. St. L. Public Service Co., 334 Mo. 278, 296(5), 66 S.W.2d 894, 903(12); Bowman v. Standard Oil Co. of Indiana, 350 Mo. 958, 967(5), 169 S.W.2d 384, 388(11).
The judgment is affirmed. All concur.