Edwards v. St. Louis Public Service Co.

365 S.W.2d 483, 1963 Mo. LEXIS 812
CourtSupreme Court of Missouri
DecidedMarch 11, 1963
DocketNo. 49275
StatusPublished
Cited by4 cases

This text of 365 S.W.2d 483 (Edwards v. St. Louis Public Service Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. St. Louis Public Service Co., 365 S.W.2d 483, 1963 Mo. LEXIS 812 (Mo. 1963).

Opinion

HYDE, Judge.

Action for $21,500.00 damages for personal injuries sustained in a collision between the automobile plaintiff was driving and defendants’ bus. Verdict and judgment were for defendants and plaintiff has appealed.

Plaintiff claims error in giving instructions 6 and 7 at request of defendants. Defendants have filed a motion to dismiss appeal and while plaintiff’s brief does not fully comply with the rules it is sufficient for the points presented and the motion to dismiss is overruled.

Plaintiff submitted solely on humanitarian negligence. He said he drove west to about the middle of the 4100 block of St. Louis Avenue (50 feet wide) stopping near the north curb; then desiring to go to his house on the south side of the street he made a U-turn and his car was struck by defendants’ bus after he had crossed the center line of the street and reached a point seven or eight feet south of it. Plaintiff said when he stopped on the north side of the street he saw an eastbound bus discharging passengers about 250 feet west (at the Whittier Street intersection) and that the bus and his car started in motion about the same time. Plaintiff’s speed in making the turn was estimated at between five and ten miles per hour. The speed of the bus prior to the collision was twenty miles per hour. The driver estimated it had been reduced to 15 miles per hour at the point of impact. The bus driver said he first saw plaintiff’s car when it was 10 or 12 feet north of the center line of the street when the bus was 40 to 50 feet west of the point of impact, and that he then “started to apply the brakes and swerve to the right and blew the horn.” Plaintiff had evidence that the bus could be stopped in 44 feet at a speed of 20 miles per hour, and that his own car could be stopped in 16)4 feet at 10 miles per hour. (Reaction times included.) As the bus traveled eastwardly on St. Louis Avenue its left side was from one to four feet south of the center line. The collision [485]*485occurred just before noon of a clear day on dry pavement.

Instructions 6 and 7 were as follows:

No. 6. “The Court instructs the jury that if you find and believe from the credible evidence that on the occasion mentioned in the evidence the eastbound motor bus mentioned in the evidence was traveling at a speed of approximately 20 miles an hour in the eastbound traffic lane (with the right end of said motor bus 3 to 4 feet south of the center line of St. Louis Avenue,) and if you find that (when said motor bus was approaching the middle of the block east of Whittier Street the automobile driven by plaintiff started up from the north curb of St. Louis Avenue) and that when said automobile was approximately 12 feet north of the center line of St. Louis Avenue it was headed in a south, southwest direction (into a rU’ turn) and that at that time the motor bus was 40 to 50 feet west of said automobile, and if you find that then Mr. Adams blew the horn on said motor bus, applied the brakes and swerved 3 or 4 feet to the south in an attempt to avoid colliding with plaintiff’s automobile, and if you find that plaintiff (continued to drive toward the south into a ‘U’ turn) and crossed the center line of St. Louis Avenue and drove directly into the path of and in close and dangerous proximity to said motor bus, and if you find that Mr. Adams, in the exercise of the highest degree of care, (could not avoid colliding with said automobile,) and if you find that Mr. Adams was at all times exercising the highest degree of care in the operation of said motor bus and was not negligent in any manner submitted to you in Instruction No. 1, then, in that event, the plaintiff, Otis Edwards, is not entitled to recover herein, and your verdict must be for the defendants.” (Parts of instruction criticised by plaintiff emphasized.)

No. 7. “The Court instructs the jury that if you find and believe from the evidence that at the time plaintiff entered a position of imminent peril, if you so find, it was then too late for the operator of the motorbus mentioned in the evidence in the exercise of the highest degree of care and with the means and appliances at hand, consistent with his own safety and the safety of the passengers in said motorbus and the equipment which he was operating to have stopped said motorbus before striking the plaintiff and thus and thereby to have avoided the collision mentioned in the evidence, then, in such event, plaintiff is not entitled to recover from the defendants, and you will find your verdict in favor of the defendants.”

Plaintiff’s objections to Instruction 6 are: (A) that it was misleading and confusing because it hypothesized the bus was “in the eastbound traffic lane with the right end of said bus 3 to 4 feet south of the center line of St. Louis Avenue,” when all the evidence showed the left end of the bus was nearest to the center line; (B) that there was no evidence to support the hypothesized finding “that when said motor bus was approaching the middle of the block east of Whittier Street the automobile driven by the plaintiff started up from the north curb”; (C) it was confusing and misleading since there was no evidence in the case that the motor bus could not be stopped after the time when plaintiff was in a position of imminent peril and especially after the time when the bus driver should have seen plaintiff in a position of imminent peril; (D) it injected contributory negligence of plaintiff by the hypothesized findings about plaintiff making a “U turn”.

As to (A) this was a clerical or typographical error inadvertently using “right” for “left”. It could not have been misleading or prejudicial because as plaintiff says the evidence was uncontroverted as to the true fact, both parties’ evidence showing the entire bus was south of the center line of the street. This is within our ruling in Wegener v. St. Louis County Transit Co., Mo.Sup., 357 S.W.2d 943, 949, as to insubstantial errors, and is of even less importance than the errors in the in[486]*486struction in that case which we held not prejudicial.

As to (B) plaintiff relies on the evidence favorable to him, when in deciding whether or not this criticised finding was supported by evidence we must consider the evidence most favorable to defendants. In the first place, if the bus had been as far away when plaintiff started to cross the street, as plaintiff and his witness, who followed it, testified (250 feet or more), there could not have been a collision at all. All the evidence showed the maximum speed of the bus as 20 miles per hour and of plaintiff’s car as 10 miles per hour. Therefore, if plaintiff’s car traveled about 32 feet from the north curb (how close it got to the curb was not shown) to the point of impact at ten miles per hour, this would take little more than two seconds; and traveling 20 miles per hour the bus could not have been much more than 60 feet away when the car started across the street. Furthermore, if plaintiff’s car was going only five miles per hour, it would have required little more than four seconds to have reached the point of impact, while for the bus to have traveled 250 feet at 20 miles per hour would have required more than eight seconds. Therefore, our conclusion is that the evidence most favorable to defendants does support a finding that plaintiff started his car from the north curb when the bus was approaching the middle of the block.

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Bluebook (online)
365 S.W.2d 483, 1963 Mo. LEXIS 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-st-louis-public-service-co-mo-1963.