Suchara v. St. Louis Public Service Co.

410 S.W.2d 93, 1966 Mo. App. LEXIS 529
CourtMissouri Court of Appeals
DecidedNovember 15, 1966
DocketNo. 32314
StatusPublished
Cited by5 cases

This text of 410 S.W.2d 93 (Suchara v. St. Louis Public Service Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suchara v. St. Louis Public Service Co., 410 S.W.2d 93, 1966 Mo. App. LEXIS 529 (Mo. Ct. App. 1966).

Opinion

DOERNER, Commissioner.

This appeal arises out of a suit for damages for personal injuries alleged to have resulted from a rear end collision. The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff for $3,000. Defendant’s timely post-trial motions were overruled and it brought this appeal.

The nature of the points raised by defendant obviates an extended statement of the facts. On November 20, 1962, at about 3:40 P.M., plaintiff, a 47 year old St. Louis police officer, accompanied by fellow-officer Arthur Boles, in line of duty was operating a police patrol cruising vehicle westwardly on Easton Avenue in that city. In compliance with an electric traffic light which showed red, plaintiff brought the cruiser to a stop east of the east curb line of Grand Avenue, an intersecting street. According to plaintiff, “ * * * approximately one minute” after coming to a stop and while waiting for the light to change his vehicle was struck from the rear by one of defendant’s streetcars, operated by its employee Luke Jones, Jr. Plaintiff’s evidence was that the impact was of such force that the cruiser was knocked forward a distance of about 4 feet despite the fact that its power brakes were on; and that it caused him to be first thrown backward and his head to hit a metal screen located between the cab and the prisoner’s compartment, and to then be pitched forward. Plaintiff’s principal complaint concerned an injury to his neck. Defendant’s evidence, as testified to by Jones, was that when he applied the brakes as the streetcar approached plaintiff’s vehicle the track brake did not engage in its usual manner and the streetcar suddenly and unexpectedly traveled about 5 feet more than he had intended. Defendant also produced evidence that a subsequent examination of the streetcar revealed that the ground wire for the magnetic track brake on the number one trunk was broken, which adversely affected the operation of the brakes on the front wheels.

At the request of the plaintiff the court gave Instruction No. 2, MAI 17.16, the verdict directing instruction under the [95]*95rear end collision doctrine. Defendant requested and the court gave Instruction No. 3, MAI 29.02(2), conversing the negligence submitted in Instruction No. 2. Defendant also offered, but the court refused to give, Instruction No. A, and this refusal forms the basis for defendant’s first complaint. Instruction No. A read, in substance, that the jury’s verdict must be for the defendant if it believed that when the operator applied the brakes the streetcar went into a sudden and unexpected slide, that thereafter there was a sudden and unexpected failure of the brakes, and that the defendant was at all times exercising ordinary care in operating and maintaining the streetcar and was not negligent under Instruction No.-. Defendant’s refused instruction is not to be found in MAI, is somewhat of a hybrid, and in part is in the nature of an unavoidable accident instruction, Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 129, the giving of which is expressly prohibited by MAI 1.01. In part it was also a converse instruction of Instruction No. 2, plaintiff’s only verdict directing instruction. Defendant was therefore entitled to only one converse instruction, MAI 29.03, Notes on Use, and one was given on its behalf. While defendant mentions no such point in its points on appeal, in the argument portion of its brief it states that the court refused to allow it to argue its defense of unexpected sliding and brake failure to the jury. The record, on the contrary, shows that in its argument it dwelt on that defense at length. The court’s action in refusing to give Instruction No. A was proper.

During its portion of the argument to the jury the defendant, in addition to emphasizing its evidence regarding the unexpected sliding and brake failure of its streetcar, stressed that plaintiff had failed to offer, “ * * * any specific evidence as to any specific negligence” on the part of defendant. In the course of his rebuttal plaintiff’s counsel started to assert that plaintiff’s situation was that he was not doing anything wrong; that all he had to prove was that there was a collision; and that he didn’t know what caused it. At that point defendant’s counsel interrupted with the objection that, “The instructions are directly to the contrary. They have to prove negligence.” The court overruled the objection but admonitioned the jury that it should be guided by the instructions. Plaintiff’s counsel then concluded with the statement that the jury should read the instructions, “the verdict directing instruction that if there was a collision.” Defendant now complains that the court erred in overruling its objection. Technically, the plaintiff’s assertion was not directly contrary to Instruction No. 2 for that instruction did not require the plaintiff to “prove negligence” but left that issue for the determination of the jury. What the plaintiff was required to do in order to make a submissible case for the jury was to introduce sufficient evidence from which the jury might find that the defendant was guilty of the negligence charged. The plaintiff submitted his case under the rear end collision doctrine. His evidence was that his vehicle was and for an appreciable period had been at rest at the stop sign, that it was in a portion of the street where it was entitled to be, that the streetcar was under the control of defendant, and that under such circumstances it collided with the rear end of plaintiff’s vehicle. Plaintiff’s evidence was, in fact, corroborated by defendant’s motorman. Contrary to defendant’s argument, such evidence was not only sufficient to make a prima facie case under the rear end collision doctrine, but to make one of specific, not general, negligence. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Crawford v. McNece, Mo., 388 S.W.2d 809. It is true that under the rear end collision doctrine a plaintiff is required to offer evidence not only of the collision, but of the other surrounding circumstances which make that doctrine applicable. Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360. It is apparent that in his argument plaintiff was attempting to answer defendant’s claim of his failure to produce [96]*96any evidence as to any specific negligence, and that in the passage under consideration he was alluding to the surrounding circumstances, and not merely the collision alone. Considered against the background of defendant’s argument, and in the light of the objection made, the court did not err in its ruling.

In its next point the defendant claims that the court prejudicially erred in the admission of evidence in four unrelated instances. We have carefully reviewed each in turn, and cannot agree. During his direct examination, while relating the course of medical attention he had received, plaintiff testified that the day after the collision he was examined by Dr. Reh, one of the Police Department’s physicians, and over the objection that it was hearsay, was permitted to relate that Dr. Reh recommended that he have X-rays of his neck made at St. John’s Hospital and that he receive therapy treatment.

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Bluebook (online)
410 S.W.2d 93, 1966 Mo. App. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suchara-v-st-louis-public-service-co-moctapp-1966.