Opinion
No. 42711.
April 23, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied June 9, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WALDO C. MAYFIELD, J.
Byron Roche, Chelsea O. Inman, Charles E. Gray, St. Louis, for appellant.
Carroll J. Donohue, Salkey Jones, St. Louis, for respondent. King McElroy, St. Louis, of counsel.
Plaintiff-appellant has appealed from a judgment entered on defendant's verdict in her suit for $17,500 damages for personal injuries. The cause was submitted on the res ipsa loquitur theory. Plaintiff's contention, among others, is that the court erred in giving instruction 4.
It is not disputed that defendant's southbound bus stopped at the southwest corner of the intersection of Kingshighway (a north and south street) and Easton (an east and west street) with its right side adjacent to the west curb of Kingshighway and its front at the extreme south end of the bus stop zone. Immediately south of the south end of this stop zone was a concrete driveway about 12' in width which led into a filling station at the southwest corner of Kingshighway and Easton. Some 3' or 4' south of the south side of this filling station driveway was the north side of another concrete driveway, also 12' wide, which led into the parking area of a White Castle restaurant. Kingshighway is sufficiently wide for two lines of traffic each way and an additional lane for parked cars at both the east and west curbs. At the time of the occurrence in question, it was daylight and the streets were wet.
Plaintiff was a seated passenger on defendant's Kingshighway bus. She testified that after the bus had stopped at the place indicated for the purpose of receiving and perhaps discharging passengers, it moved a distance of 10' to 20' when, for a cause unknown to her, its speed was suddenly and violently checked and the bus came to a sudden stop. As a result, she was thrown forward striking the seat in front of her and then thrown backward against the back of the seat in which she was sitting.
Defendant's operator testified that he stopped the bus, a 3100 type in good condition, at the place mentioned for the purpose of receiving and discharging passengers; that it was "drizzling" rain but his vision was in no way obscured; that when he had moved the bus 15' or 20' from its stopped position and had attained a maximum speed of 10 to 12 m.p.h., "some man come up in a car, near the yellow line, and come right out toward me. When he did that I put on the brakes; I made an emergency stop." The automobile mentioned had been proceeding north on Kingshighway and the operator first noticed it when it "broke over" the middle line turning toward him at a time when the automobile was 15' to 18' from the bus and probably at the south side of the White Castle driveway. The automobile driver gave no signal prior to turning. The operator brought the bus to a complete stop within 14' to 20', at which time its right side was 3' or 3 1/2' east of the west curb of Kingshighway. The automobile failed to turn in front of the bus and its right front fender came in contact with the left front corner and part of the side of the bus between the front wheel and the bumper. Very slight damage to both vehicles resulted. The place of the collision was near the center of the White Castle driveway, about 6' south of the north edge of this driveway. The bus could have been safely stopped under the conditions then existing at a speed of 10 m.p.h. in "around 18' to 20'".
Defendant's passenger witnesses testified that the bus had just started up when the automobile began its left turn; that the bus started very slowly. One testified: "Q. Now you observed the Buick from the time the bus first started up, is that right? A. Yes.
"Q. And as the bus first started up you saw the Buick make a left-hand turn, is that right? A. Yes, sir.
"Q. And you can't give us any idea how far the bus travelled prior to the final stop? A. No, sir." Another described the occurrence: "I saw a car coming north * * * and I assumed at the rate of speed he was going he was going due north, but just as we had got under way he decided to cut in front of us and make that driveway to the lunch-room, I believe, and no signal given by him. Of course, naturally when he did cut into the drive, started to cut in, the bus driver threw on his brakes. * * * Just all of a sudden it seemed as though he made up his mind to cut over and get something to eat, I guess, I don't know." This witness thought that the bus traveled a total distance of about one half its length. (Other testimony was that the bus was 33' to 35' in length).
The driver of the automobile was a rebuttal witness for plaintiff. He said that he was traveling north on Kingshighway and before reaching the White Castle driveway he put on his automatic flasher signal to indicate a left turn and put out his left hand. At that time the bus was stopped at the place for taking on passengers. He began his left turn at about 8 or 10 m.p.h. and did not see the bus again until it hit his automobile. He thought both vehicles were moving at the time of the collision, and agreed that there was a very slight collision.
Plaintiff's instruction 1 hypothesized a carrier-passenger relationship between plaintiff and defendant, the checking of the speed of the bus with extraordinary, sudden, unusual, and violent force, and plaintiff's resulting injuries. It then told the jury that such facts were sufficient circumstantial evidence to warrant a finding of some negligence on the part of defendant and that the jury might so find unless they found that the occurrence was not due to defendant's negligence and that, if they found defendant was negligent and plaintiff's injuries were caused thereby, verdict should be for plaintiff.
Plaintiff had alleged general negligence of defendant in causing the bus "to suddenly check its speed with an extraordinary, sudden, unusual and violent force". Plaintiff's own testimony, heretofore summarized, showed that she was a passenger injured by a violent and unusual checking of the speed and stopping of the bus for a reason unknown to her. The testimony of plaintiff's rebuttal witness, heretofore summarized, was not such that it proved specific negligence. Thus, neither plaintiff's pleading nor proof limited the permissible inferences of negligence.
Instruction 4 given for defendant was: "The Court instructs the jury it was the duty of the defendant to use the highest degree of care for the safety of plaintiff, a passenger on the bus, and likewise to use the highest degree of care for the safety of automobiles and the passengers therein.
"In this connection you are further instructed that if you find and believe from the evidence that at the time and place in question the automobile of Thomas Roach mentioned in the evidence was operated Northwardly on Kingshighway and turned suddenly westwardly towards the driveway of the White Castle Restaurant located on the West side of Kingshighway at a rate of speed of about 20 to 25 miles per hour, if you so find, and if you further find that said automobile was then driven into the path of defendant's southbound moving motorbus, and if you further find that the operator of said bus was then and there confronted with an emergency as a result thereof, if you so find, and that the operator of the bus made an effort to avoid a collision with the automobile in question, by bringing the bus to a stop, and if you further find and believe from the evidence that the operator of the bus could not anticipate that plaintiff, a seated passenger on the bus, might be injured by the sudden stopping of the bus, and if you further find that the operator of the bus under all the circumstances then and there existing was exercising the highest degree of care in the operation thereof, and if you further find and believe from all the evidence that the defendant was not negligent as charged in other instructions submitted to you herein, then plaintiff is not entitled to recover and your verdict should be for the defendant."
Defendant's evidence, heretofore summarized, was such that the jury could reasonably find that some negligence of defendant caused or contributed to cause the emergency situation hypothesized in instruction 4. This, for the reason that from defendant's evidence the jury might reasonably find that the bus could have been safely stopped (without injury to plaintiff) under the conditions then existing at a speed of 10 m.p.h. in 18'; that the bus moved at least 22' from its first stopped position to its second stopped position; that the automobile began its left turn at a time when the bus was just starting slowly from its stopped position (just getting under way or "as the bus first started up"); that at such time the bus was moving at a speed of less than 10 m. p. h. and could have been safely stopped in less than 18' (and by reasonably inference its speed could have been safely checked in a much shorter distance) and therefore could have been brought to a safe stop short of the path of the turning automobile. Thus the jury could reasonably find from the facts in evidence that had the bus driver exercised the highest degree of care in operating the bus at the time he left the stop zone, he would not have been faced with the emergency situation hypothesized in the instruction. This is not to say that any such finding was compelled by the evidence or that the jury could not have reasonably found to the contrary. We indicate only that such a finding, if made, would be supported by defendant's evidence.
Instruction 4 is identical with instruction 6 in Rohde v. St. Louis Public Service Company, Mo.Sup., 249 S.W.2d 417, except for a necessarily different factual hypothesis and except that instant instruction 4 included the following phrase: "and if you further find and believe from the evidence that the operator of the bus could not anticipate that plaintiff, a seated passenger on the bus, might be injured by the sudden stopping of the bus." We held the instruction in the Rohde case prejudicially erroneous because it failed to require a finding that no negligence of defendant caused or contributed to cause the emergency hypothesized; that such an essential finding, prerequisite to the application of the emergency doctrine, was not supplied by the requirement of a finding "that the defendant was not negligent as charged in other instructions submitted to you herein".
For the reasons stated in our opinion in the Rohde case, and without repeating what was there said, instant instruction 4 is prejudicially erroneous unless the additional phrase contained in instruction 4, omitted from the instruction in the Rohde case, cures the defect for which the Rohde instruction was held erroneous. It is obvious that the phrase in the instant instruction, "and if you further find and believe from the evidence that the operator of the bus could not anticipate that plaintiff, a seated passenger on the bus, might be injured by the sudden stopping of the bus," does not, and has no tendency to, in any way cure the error inherent in the instruction pointed out in the Rohde case. On the contrary, the phrase "injected an issue foreign to the essentials of an emergency situation" and thereby served to make the instruction here even more misleading and confusing than the Rohde instruction.
The view we have taken of instruction 4 makes it unnecessary to consider other assignments of error pertaining to the exclusion of evidence and an alleged oral instruction to the jury. As to plaintiff's contention that the giving of instruction 7 was error, we point out that instant instruction 7 is substantially the same as instruction 5 in the recent case of West v. St. Louis Public Service Company, 361 Mo. 740, 236 S.W.2d 308. We reaffirm what was said in that case at pages 312 and 313 of 236 S.W.2d, concerning that instruction.
For error in giving instruction 4, the judgment is reversed and the cause remanded.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, CC., is adopted as the opinion of the court.
All concur.