Opinion
No. 42387.
December 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 9, DAVID A. McMULLAN, J.
Edward W. Fredrickson, William L. Mason, Jr., St. Louis, for appellant.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for respondent.
In this action plaintiff (appellant) sought damages in the sum of $30,000 for personal injuries sustained by her when she collided with the side of a streetcar operated by defendant in the City of St. Louis. At the close of her evidence, the trial court directed a verdict in favor of defendant. She appeals from the judgment entered in conformity with the verdict.
The sole question presented is whether a submissible case was made under the humanitarian doctrine by failure of the motorman to warn plaintiff of the approach of the streetcar after he could have seen she was oblivious of its approach and in a position of imminent peril.
The collision occurred at the intersection of Page Boulevard and the Hodiamont streetcar tracks at 8:00 a. m., on April 26, 1946, a clear day, as plaintiff walked eastward on the sidewalk on the south side of streetcar.
Page Boulevard extends east and west and crosses the Hodiamont right-of-way and tracks at an approximate right angle. It is sixty feet wide, exclusive of sidewalks. The sidewalk on the south side of space between the south curbing and building line. A two story brick building, referred to in the evidence as a hardware store, is located at the southwest corner of the intersection of Page and the Hodiamont right-of-way. The Hodiamont tracks, as they cross Page, and for some distance north and south thereof, consist of two lines, the west line being used for southbound cars and the east line for northbound cars. The west rail of the west track is twelve feet, nine inches, from the east wall of the hardware store. The sidewalk extends eastward beyond the hardware store to within a few feet of the west rail of the west track, where it connects with asphalt paving covering the area on both sides of and between the tracks.
The unquestioned facts are: Plaintiff was about fifty-two years of age at the time she was injured, in good health, and her eyesight and hearing were good.
The streetcar with which plaintiff collided had stopped on the north side of Page to receive passengers and thereafter proceeded southward across the street to the point of collision, and stopped within its length after the collision. It was an "old type" car, with a "rounded nose". Entrance doors were at the right front end, immediately back of the rounded front.
When plaintiff came to the northeast corner of the hardware store, she had a clear view of the tracks in both directions and a clear view of the approaching streetcar. She was familiar with the tracks and intended to cross over them for the purpose of boarding a northbound streetcar to Wellston. Walking directly forward, she collided with the rear portion of the entrance doors of the car as it passed the sidewalk along which she walked.
Plaintiff testified that as she passed the hardware store she was "right close" to it, and as she came to its northeast corner she looked to her left (north), but did not see any streetcar, and then: "Q. And after you looked to the north, then what did you do? A. Where did I go? I kept straight on down, because I would have to cross the street to get the City Limit bus. I would have to go across the street to get it. And, as I walked on, across, which I was going east, you understand, on Page, and when I went on, and turned this way and was walking, when I turned around this way, a good way, my head that way, I would know nothing else, because I was knocked down. I was killed."
Upon further questioning, she testified that north was the "first direction I looked, to try to see, was it anything coming from that direction so I could cross the street to get the county streetcar to go to Wellston"; but she did not immediately look south, as she had to go "further down"; then when she "stepped on down and started to cross the street", she turned her "head this-a-way, that's all I know." The record shows she then turned her head in demonstration of her testimony.
Thereafter, counsel for both parties and the court persistently and painstakingly undertook to develop the meaning of the foregoing statements. The substance of the testimony so developed was that when plaintiff was at the hardware store she looked north, walked toward the tracks, at some point turned her head to the south, and the collision occurred.
Plaintiff was permitted to leave the witness stand several times and undertake to demonstrate the meaning of her testimony, but the record does not reveal how she did so. As she was so demonstrating, her testimony many times repeated was substantially as given by these questions and answers: "A. I looked to the north, before I looked to the south; you understand?
"Q. Yes; but, where were you — had you gotten to the corner of the building? A. I don't know whether I was to the corner of the building when I looked to the north, but I looked that way first.
"Q. Yes. A. You understand. And then I says, now, I got to look to the south, so I walked on down this way (meaning toward the tracks) and I looked this way (meaning south).
"Q. And you kept walking with your head turned; is that right? A. That is all I know, people. That is all I know."
Her further testimony was that she never saw the streetcar at any time and heard no gong or other warning; that after once turning her head to the right (south) she never thereafter looked in any other direction, and never stopped until the collision.
Helen Taber testified, on direct examination, that she saw a colored woman (plaintiff) as she walked slowly eastward on Page toward the streetcar; that plaintiff was looking over her right shoulder as she passed the hardware store and did not look ahead or to her left, did not change her speed, and walked into the back of the front doors of the streetcar after its front end had crossed her path, the front part of her body striking the streetcar.
On cross examination, this witness, after her memory was refreshed by a written statement given by her to defendant on April 19, 1946, changed her testimony to this extent: that she did not see plaintiff until plaintiff was "about six feet or a couple of steps" from the streetcar, and that she had not seen plaintiff before that time; that she only saw plaintiff "a second or two"; and that the streetcar "was already in her (plaintiff's) path, had crossed her path" when the witness first saw her six feet from the tracks.
Margaret Bailey, a passenger on the streetcar, testified: She first saw plaintiff near the corner of the hardware store. The streetcar, after stopping on the north side of Page, sounded a going and moved southward, and plaintiff kept on walking. She walked eastward in a straight line at a medium walk. When witness first saw plaintiff, the car was more than halfway across Page but had not reached the south curb. The collision occurred at the front doors of the streetcar. She never saw plaintiff's face at any time and did not know whether plaintiff looked to the right or to the left. There was a man in the front of the car between the motorman and the door; witness "hollered" to the motorman that he had hit a lady, and concluded that the motorman had not seen plaintiff. The motorman then stopped the car with its rear end beyond the south side of the sidewalk.
On cross examination, the witness was shown a written statement she had made and signed on May 7, 1946, and counsel for defendant read certain portions thereof to witness, including this portion: "The front end of this streetcar was at or past the south edge of the south sidewalk of Page when this woman was within three feet of the westhand side of the streetcar, and a fraction of a moment later she walked against the streetcar." The testimony of the witness from that time on was very much confused, but she finally said that she meant by the above portion of her written statement that: "She (plaintiff) didn't walk over to the north curb. She kept walking — the streetcar was to the north, when she was three feet. By the time she got there, they both collided. That is what I am trying to tell you, the streetcar was at the north end of the curb; by the time it got to where in the curb she was into, they both collided."
Plaintiff then rested her case. Defendant filed a motion for directed verdict. While the motion was under consideration by the court, plaintiff's counsel was permitted to reopen the case and to recall plaintiff. Several efforts were again made by the court and counsel to get an answer from plaintiff, either by statement or by pointing to objects in the courtroom, showing her position on the sidewalk — how far she had walked beyond the store building — when she turned her head to the right (south), but, insofar as the record shows, nothing came of it.
At the close of plaintiff's evidence, the trial court made this statement: "It appeared to the court that during the illustration, when she (plaintiff) was walking out there, that she walked almost half the distance (one half of twelve feet, nine inches), if not more, before she started to turn (her head) to the right, and I don't think that from all the evidence and all the circumstances that this point should be belabored further."
Plaintiff's obliviousness of the approach of the streetcar and her consequent peril, standing alone, did not make a submissible case under the humanitarian doctrine. Section 480 of the Restatement of the Law of Torts has been quoted with approval by this court in several instances. The portion of that section particularly applicable in this case reads: "It is not enough that the defendant should see the plaintiff in a position which would be dangerous were the plaintiff not aware of what is going on. The defendant must also realize or have reason to realize that the plaintiff is inattentive and, therefore, is in peril. The defendant is entitled to assume that the plaintiff is paying or will pay reasonable attention to his surroundings; until he has reason to suspect the contrary, he has no reason to believe that the plaintiff is in any danger. Therefore, the defendant is liable only if he realizes or has reason to realize that the plaintiff is inattentive and consequently in peril." Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368, 371; Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, 768. See also State ex rel. Alsup v. Tatlow, 346 Mo. 1025, 144 S.W.2d 140, 141.
From the testimony above set forth, it may be seen that the part most favorable to plaintiff was:
First, her testimony that when she was at the hardware store, twelve feet, nine inches, west of the tracks, she looked to the north, did not see the car, walked on toward the tracks and at some point turned her head to the right. But the most persistent efforts could not induce her to state how far she was from the tracks when she turned her head to the right. Possibly, she could not understand what answer the questions demanded; she testified she could not think like she used to, and that "this side of my head is ruined."
Second, the testimony of Helen Taber that when she first saw plaintiff her head was turned over her right shoulder (southward), and plaintiff was then "about six feet or a couple of steps" from the tracks.
Plaintiff accepts the trial court's statement, above quoted, as the correct version of her testimony.
Defendant contends the evidence shows that plaintiff continued to look northward after she passed the hardware store until she looked to the right. There is no evidence that plaintiff looked in any direction other than, first, to the north and then to the south. Therefore, defendant's conclusion is a fair one. In any event, however, there is no evidence or circumstance in the record to indicate that the motorman could have seen or become aware of plaintiff's peril until she turned her head to the right. Plaintiff concedes as much.
Assuming plaintiff was about six feet from the tracks when she turned her head to the right, and allowing nothing for the overhang of the streetcar, we are of the opinion no submissible case was made. Surely, as she was turning her head she would take one step. Only two steps, at most, would then remain before she would reach the point of collision. Under the circumstances here shown, it would take the motorman an appreciable space of time to realize that the turning of her head to the right was an indication of obliviousness rather than a fleeting or precautionary glance to the right. And, after realizing her peril, he would yet have to sound a warning, and plaintiff would have yet to appreciate its portent.
The evidence furnishes no factual basis upon which to found a reasoned conclusion that after the motorman could have seen that plaintiff was oblivious of the approach of the streetcar and, therefore, in a position of peril, he could have sounded a warning in time to have enabled her to avoid the collision. No other contention is made.
The only case cited by plaintiff is Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000. After careful consideration of the facts in that case, we do not think it controlling under the facts in this case.
The judgment is affirmed.
All concur.