MARTINI v. ST. LOUIS PUBLIC SERVICE CO

WOLFE, Commissioner.

This is an appeal in an action for damages arising out of personal injuries suffered by the plaintiff when she was struck by the defendant's streetcar. The trial resulted in a verdict and judgment for $10,000, which was reduced by a remittitur of $2500. From the judgment of $7500 the defendant prosecutes this appeal.

The occurrence out of which the action arose took place on December 6, 1948, at about 6:30 p.m. on a right of way over which the defendant operates a streetcar line. This right of way runs in a general east and west direction and is paralleled on the south by Millbrook Drive and on the north by University Drive, both of which are public thoroughfares. No streets cross the right of way for the campus of Washington University extends along the south side of Millbrook Drive, but several north and south streets run into University Drive from the north and there are streetcar stops along the right of way at points opposite such intersections. One of these streets, for which a stop is provided, is Kingsland Avenue. Here, on both sides of the right of way, there is a waiting zone which is about equal in length to a streetcar and is about seven feet wide. This waiting place is paved with crushed rock or small gravel and the paving is continued between the tracks to provide a crosswalk to either side. On the south side of this waiting zone there is a row of concrete posts to prevent automobiles from crossing the right of way, but these posts are set at sufficient distance apart to allow pedestrians to walk between them.

The plaintiff, a woman seventy years of age, was the operator of a small dry goods store. She resided on Pershing Avenue, which is a block north of University Drive and may be reached by going north on Kingsland Avenue. On the evening that she was injured she had ridden in the automobile of a wholesale dry goods salesman out Millbrook Drive to the Kingsland Avenue stop of the University car line. Here she alighted from the automobile with the intention of crossing both the east and westbound tracks and University Drive so that she might proceed northwardly along Kingsland Avenue to her home. She was carrying in her left arm a box two feet long by a foot wide and a smaller package. As she reached the concrete posts she looked to the west and there was no car in sight so she started to cross the right of way, but when she reached a point about two feet south of the south rail she dropped her packages. She again looked to the west but saw no car and stooped to pick up her packages, one of which had fallen within a foot of the track. Upon retrieving the packages she dropped them again and after she had again picked them up she was struck by the streetcar. The time consumed by the plaintiff in getting her parcels back into her arms after first dropping them was estimated by her to have been four or five seconds. She stated that she could see the tracks for a distance of 300 to 350 feet at the times that she looked westwardly and that at both times the "tracks were clear". She also said she could have heard the car bell from a distance of 350 to 400 feet but that she heard no bell.

The operator of the streetcar, testifying for the defendant, stated that he had concluded his day's work and was returning his car to the car sheds at the time the plaintiff was struck. He was going eastwardly at the rate of about fifteen miles per hour and looking straight down the right of way. As his car approached the Kingsland Avenue stop he saw a lady with a box "up around her head". At the time he saw her he was only fifteen feet away and she was walking "hurriedly right in up to the tracks, right almost on the tracks." He said that she was not looking where she was going and seemed to have her head down. When asked what he did at that time he stated that he at once applied the brakes and "gave it what they call the last chance, humanitarian, everything." This effort on his part brought the car to a stop in thirty or forty feet but he heard the thud caused by the car striking the plaintiff. When handed a photograph of the locale of the accident, he indicated that the plaintiff was just south of the concrete posts when he first saw her walking toward the tracks, and on cross-examination he stated that he stopped the car in fifteen feet.

The witness testified that the car he was operating was making very little noise but that the bell automatically rang when he threw the car in reverse. He said the bell was "one of the best in the world", and that he first rang it when he was twenty feet away from the plaintiff. This witness also stated that the track was straight between the Kingsland Avenue stop and the Trinity Avenue stop, which was the first to the west, a distance estimated by him to be 300 to 400 feet. Beyond the Trinity Avenue stop the tracks turn southwardly.

Another witness for the defendant stated that he paced off the distance between the stops and that it was approximately 550 feet.

The case was submitted on the humanitarian theory of negligence predicating a verdict upon a finding that there was a negligent failure to sound a warning. The only contention raised by this appeal is that the evidence was insufficient to make a case properly submissible to the jury, and that the court erred in refusing to direct a verdict for the defendant.

It is conceded by both parties that the elements required to bring a case under the Missouri humanitarian rule are those set forth in Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482, loc.cit. 484: "(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured."

The defendant maintains that the evidence is insufficient to show that the operator of the car saw, or by the exercise of ordinary care could have seen, the plaintiff in a position of peril in time thereafter to have sounded an effective warning. If this essential element is not proven then the case does not come within the doctrine under which it was submitted to the jury, for it is incumbent upon the plaintiff to bear the burden of showing by competent evidence that the defendant was negligent after she came into a position of peril. Hendrick v. Kurn, 352 Mo. 848, 179 S.W.2d 717; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Bean v. St. Louis Public Service Co., Mo.App., 232 S.W.2d 782; Kelly v. Lahey, Mo.App., 232 S.W.2d 177. In testing the sufficiency of her evidence, as has often been stated, we must view it and the legitimate inference to be drawn from it in a light most favorable to the plaintiff. We must also consider the defendant's evidence in so far as it is consistent with plaintiff's theory of the case and not contradictory of plaintiff's own testimony. Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Bean v. St. Louis Public Service Co., supra.

There can be no doubt that plaintiff was in a position of peril and oblivious to the fact. From her own testimony she was picking up her packages at a place where she could be struck by the overhang of an oncoming streetcar and she did not know the streetcar was coming. According to the operator of the car he first saw her with the box up around her head, without looking where she was going, and walking toward the tracks with her head down. By either of these versions it is obvious that the plaintiff was in a position of peril. She stated that she looked before she stooped to pick up the packages and saw that the tracks were clear for a distance of 300 to 350 feet and that she could have heard a bell if it had been sounded, but she heard none. It is true that such testimony is what we classify as negative evidence, but the fact that no bell was heard where, as in this case, plaintiff could have heard and did not hear, constitutes evidence that no bell was sounded by the operator of the streetcar. Paisley v. Kansas City Public Service Co., 351 Mo. 468, 173 S.W.2d 33; Sing v. St. Louis-San Francisco Ry. Co., Mo.Sup., 30 S.W.2d 37.

The operator said that he had a clear view down the track ahead of him and photographs in evidence leave no doubt about this. He was under a duty to keep a watch ahead as he approached the crossing and to ring the bell or stop the car to avoid striking any one crossing the track if he observed them in time to do so.

As stated in Todd v. St. Louis-San Francisco Ry. Co., Mo.Sup., 37 S.W.2d 557, loc. cit. 561: "The humanitarian doctrine calls into action every means at hand to prevent the threatened injury, and this may be accomplished by giving an alarm or slackening the speed of the train as well as by stopping. The jury might have found that defendant's engineer could, at a distance of say three or four hundred feet from the crossing, have discovered plaintiff in his position of peril and by giving an alarm caused plaintiff to stop short of the track."

The testimony of the plaintiff that she was in a position of peril for four or probably five seconds was evidence from which the jury could infer that she could have been warned by the bell in time for her to have stepped back from the track.

In the case of Hutchison v. Thompson, Mo.Sup., 175 S.W.2d 903, loc. cit. 911, the Supreme Court stated: "We should bear in mind that the jury would be justified in finding, under the evidence, that the fireman should, in the exercise of ordinary care, have discovered that the occupants of the truck were oblivious and consequently in peril after the truck `continued on' (from a point 2 1/2 to 3 1/2 seconds from the point of impact, although but 1 3/4 to 2 1/2 seconds from the line of the overhang of the engine). * * * We believe the questions whether a timely emergency warning could have been given and, if so given, whether such warning would have made the occupants of the truck attentive and, if so made attentive, whether the driver of the truck could have swerved the truck in time to have avoided the impending collision were for the jury."

A jury might well have found that four or five seconds of time was a sufficient period in which to ring the bell and that such a warning would have made the plaintiff aware of her danger in time for her to have stepped back sufficiently to avoid being struck. The court therefore did not err in refusing to direct a verdict for the defendant.

For the reasons stated, it is the recommendation of the Commissioner that the judgment be affirmed.