Opinion
No. 28030.
May 15, 1951. Rehearing Denied June 13, 1951.
APPEAL FROM THE CIRCUIT COURT OF CITY OF ST. LOUIS, WILLIAM S. CONNOR, J.
"Not to be reported in State Reports."
Salkey Jones, and Carroll J. Donohue, all of St. Louis, for (defendant) appellant, St. Louis Public Service Co.
Keegan Rickhoff, and Gregg W. Keegan, all of St. Louis, for (plaintiff) respondent, Mary Dashman.
This is an action for damages for personal injuries sustained by plaintiff, Mary Dashman, while in the act of alighting from a motorbus owned and operated by defendant, St. Louis Public Service Company.
Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,000. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
Plaintiff was a passenger on one of defendant's Carondelet buses, and was injured when she was caused to fall by reason of the forward movement of the bus as she was attempting to step down from the middle exit door.
Liability was predicated upon the theory that while plaintiff was undertaking to alight from the bus, defendant's agent and servant in charge of and operating the bus carelessly and negligently and without warning to plaintiff caused or permitted the bus to move or roll forward, when, by the exercise of due care, he could have prevented such movement of the bus, and could thereby have avoided the injury to plaintiff.
The sole question on this appeal is whether there was substantial evidence to warrant plaintiff's recovery upon such theory of negligence. Contending that the evidence was insufficient, defendant argues that the court erred in overruling its motion for a directed verdict and in submitting the case by plaintiff's instruction No. 1.
In brief, it is defendant's position that the charge upon which the case was pleaded and submitted was one of specific negligence; that the evidence failed to sustain such specific charge; and that having relied upon specific negligence, plaintiff was precluded from invoking the doctrine of res ipsa loquitur, even if the evidence was otherwise sufficient for such purpose, which defendant denies.
Plaintiff concedes that the charge was one of specific negligence. Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547; Duggan v. St. Louis Public Service Co., Mo.App., 56 S.W.2d 626. Likewise she concedes that having pleaded specific negligence, she was limited to such theory for her recovery from defendant, and would not have been entitled to prevail upon mere proof of general negligence, even though the case involved a factual situation to which the doctrine of res ipsa loquitur might properly have applied. Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, 189 S.W. 805, L.R.A. 1917B, 1091; Duggan v. St. Louis Public Service Co., supra. She insists, however, that the evidence sustained the specific charge by which she sought to impose liability upon defendant, and that the court acted properly in overruling defendant's motion for a directed verdict and in then submitting the case by her instruction No. 1.
There is no question but that plaintiff's evidence, though sharply disputed by that for defendant, was to the positive effect that the bus did move slightly forward while plaintiff was undertaking to alight. Consequently the only matter left for our determination is whether there was evidence to show that such movement of the bus was attributable to the negligence of the driver in accordance with the theory upon which the case was pleaded and submitted.
So far as plaintiff herself was concerned, her testimony went no farther than to show that the bus had moved forward while she was in the act of alighting, causing her to be thrown out upon the pavement. Nothing she said would have served to fix the blame upon the driver except for the mere circumstance that he was in charge of the bus.
However, the situation was materially different with respect to the testimony of plaintiff's witness, Thomas Mendica, a high school student who was a passenger on the bus on his way home from school. After having stated that the bus had moved forward while plaintiff was alighting, Mendica was asked whether the driver got off the bus after plaintiff had fallen out of the door. He answered, "Yes, sir, he did. He went forward a little ways and then he stopped." Later Mendica testified on cross-examination, "It moved when she was getting off the bus and after she got off the bus the driver started up again and then he stopped the bus."
The point at which the bus had been stopped was on a slight downgrade, and a supervisor for defendant testified that all the driver had to do to hold his bus stationary at such a place was merely to keep his foot on the brake pedal. The driver testified, incidentally, that the bus did not move, and that he had had his foot on the brake during the whole occurrence.
To whatever extent it was necessary that there should have been evidence directly and specifically connecting the driver with control over the movement of the bus at the time in question, Mendica's testimony accomplished that purpose. No doubt the testimony as a whole would have been more explicit in such respect except for the fact that every one concerned with the case apparently assumed that if the bus did move, the driver was responsible for it. The issue before the jury was not whether the driver was to blame for the movement of the bus, but whether the bus had moved at all. There was no defense predicated on the idea that the bus might have moved from some cause other than an act or omission on the part of the driver. Under all the facts and circumstances of the case there was a question for the jury as to whether the driver had carelessly and negligently caused or permitted the bus to move; and the court ruled properly in denying the motion for a directed verdict and in submitting the case by plaintiff's instruction No. 1.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.