Opinion
No. 28244.
January 15, 1952. Motion for Modification of Opinion Denied February 15, 1952.
Mattingly, Boas Richards, and Lloyd E. Boas, all of St. Louis, for appellant.
Paul H. Koening, William L. Mason, Jr., St. Louis, for respondent.
This is an action for damages arising out of personal injuries that the plaintiff sustained when she fell while a passenger on one of the defendant's streetcars. There was a plaintiff's verdict and judgment for $4500, from which the defendant prosecutes this appeal.
The plaintiff, a woman forty-two years of age, was employed as a dishwasher in a restaurant in St. Louis. She left her place of employment around 4:00 p. m. on February 3, 1948, and boarded one of defendant's streetcars to go to her home. Near Eighteenth Street and Franklin Avenue she rang the bell to signal her intention to get off of the car and walked to the exit doors. There were a few people ahead of the plaintiff and when the car stopped they left by the exit doors, but when the plaintiff started to leave the doors were closed upon her. Describing what happened at this point, she said: "I hollered and the people hollered, then he released the door and closed it back so quick it jerked it and that caused me to fall backwards." At another point in her testimony the plaintiff stated: "Before I could get straight he closed the door back and that caused me to fall forward and I fell down." Still another version she gave of the incident was that as soon as the doors closed the car started with a jerk and it was the starting jerk that caused her to fall. The car did not move until the plaintiff was extricated from the doors and the doors were closed. After her fall the motorman stopped the car and came back to her. He took her name and called for police assistance and she was taken by the police to the Homer G. Phillips Hospital.
The defendant produced an affidavit for a continuance, asserting that William Mathews, who witnessed the incident, was not available as a witness, and apparently by consent of counsel the affidavit was read as evidence. It contained a statement that Mathews boarded the streetcar at Eighteenth Street; that when the car stopped and the operator opened the rear exit doors some people alighted and some school children attempted to board the car through the open exit doors. The operator closed the doors to prevent the children from so boarding the car and in so doing he closed them upon the plaintiff. After the doors were reopened plaintiff sat on the step inside of the car by the doors and was assisted to a seat by other passengers.
The operator was not available as a witness and an affidavit of the testimony that he would have given if present was read to the jury by consent of counsel. It was as follows: "While loading at 18th street I glanced at my back door to see if every one was off. All I could see was youngsters coming in both rear doors; I called to watch the doors and closed them but someone said I had a woman in the door. I looked but could see nothing opened all doors and went back there. A woman about forty weighing about one hundred seventy-five was sitting on the top step. I called trouble for the police who took her away."
Two passengers who were students in a nearby school testified on behalf of the defendant and told of having seen plaintiff seated on the floor of the car and one of them had helped to assist her to a seat.
The records of the hospital to which the plaintiff was taken by the police showed that the patient had a contusion of the lower back and that she was sent home after an examination in the clinic. She said that after she got home from the hospital the pain in her back became more intense so she called a Dr. Sherard. The doctor diagnosed her condition as a severe lumbosacral sprain. He said that as the sprain healed there was "encroachment of scar tissue on the nerve" causing pain, and that he was at the time of the trial still treating the plaintiff for the injury which he considered to be permanent. X-rays had been taken, which showed a condition of arthritis, and a medical witness who had examined the plaintiff over two years after the accident stated that the arthritic condition could have been aggravated by the fall. In answer to a hypothetical question this physician stated that she would continue to have pain in her back. Plaintiff herself testified that she had lost two months of work and that since that time she had not been free from pain and is unable any longer to do her housework after being at her employment all day.
The case was submitted on the res ipsa liquitur doctrine by an instruction designated as plaintiff's instruction No. 1, and it is appellant's contention that this instruction was prejudicially erroneous. The part of the instruction which appellant finds objectionable is: "* * * if you further find and believe from the evidence that the said streetcar came to a stop at a regular stopping place where the plaintiff desired to alight;and if you further find and believe from the evidence that the plaintiff started to alight from the said streetcar while the same was motionless; and if you further find and believe from the evidence that while plaintiff was in the act of alighting, the exit doors of the said streetcar closed upon plaintiff's person; and if you further find and believe from the evidence that thereafter the said doors opened and then again closed; and if you further find and believe from the evidence that the said streetcar then moved; and if you further find and believe from the evidence that directly due to the said movement of the streetcar, the plaintiff was caused to fall; then you are instructed that such facts, if you believe them to be true, are sufficient evidence to warrant a finding by you that the defendant was negligent * * *."
The points raised against the instruction go to the fact that it did not require the jury to find any unusual occurrence as the cause of the plaintiff's fall, but simply required them to find that the car moved and that the movement caused the fall. Against this contention it is asserted by the respondent that any movement of a streetcar or other common carrier while a passenger is alighting is unusual and sufficient evidence to invoke the doctrine of res ipsa loquitur. Even if the respondent were correct in this proposition it does not appear to be in the case, nor is it submitted by the instruction. The only thing that occurred to her while she was in the act of alighting was that the doors closed upon her. Her release was effected by the opening of the doors, after which they were closed. This is the evidence and the factual situation presented by the instruction which goes on to say that the "streetcar then moved", that is to say, after the doors were closed. The plaintiff could not have been in the act of alighting with the exit doors closed, so neither the words of the instruction nor the facts upon which the plaintiff seeks to justify it are present.
In order to invoke the res ipsa loquitur doctrine there must be evidence of an unusual occurrence of a kind that gives rise to inference of negligence of some sort, the nature of which is unknown to the plaintiff. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Belding v. St. Louis Public Service Co., Mo.App., 205 S.W.2d 866; Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506; Wenzel v. St. Louis Public Service Co., 361 Mo. 448, 235 S.W.2d 312; Caddell v. Gulf, Mobile Ohio Ry. Co., Mo.App., 217 S.W.2d 751. But, where the occurrence complained of is one that clearly points to some specific act of negligence on the part of the defendant, the true cause is no longer left in doubt and the doctrine may not be relied upon. Belding v. St. Louis Public Service Co., supra; Wenzel v. St. Louis Public Service Co., supra. Where, as here, the car, which was in the control of the operator, came to a stop at its stopping place and the exit doors opened, then closed upon the plaintiff but reopened when she shouted to the operator, then the doors closed and the car started, it would certainly be an unwarranted conjecture to draw any other conclusion than that the opening and closing of the doors and the starting and stopping were the acts of the operator of the car. It therefore appears that the instruction not only erroneously stated the res ipsa loquitur theory but the case is not one properly submissible under that theory upon the evidence now before us. See: Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, and Williams v. St. Louis Public Service Co., Mo. App., 245 S.W.2d 659, handed down concurrently with this opinion.
The second instruction complained of seeks to submit the negligent acts and omissions of the operator. It is of course true, as the appellant contends that the plaintiff cannot submit her case upon general and specific negligence. The logic of the rule is that if the plaintiff has not proven specific negligence she is entitled to no instruction upon it, and if she has proven it she cannot go to the jury on general negligence. Therefore both could not be present. Watson v. Long, Mo.App., 221 S.W.2d 967; State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832.
The instruction covering the measure of damages authorized an award of damages for such permanent injury as the jury found that the plaintiff had suffered. It is contended that there was not sufficient evidence to support this portion of the instruction and that the court therefore erred in giving it. The injury occurred on February 3, 1948, and from that time on until the time of the trial, October 3, 1950, the plaintiff had been under the care and treatment of Dr. Sherard. He testified at some length as to the plaintiff's condition and was asked: "Do you have an opinion from your experience as a physician of treating this lady over a period of time as to whether her back will or will not get well or whether she will have a permanent condition in her back? He answered by saying "I think it will be permanent." We are aware that there must be a probability of permanency as to amount to a reasonable certainty and the damages may not be allowed on that score if the evidence does not rise beyond speculation or possibility. Weiner v. St. Louis Public Service Co., Mo.Sup., 87 S.W.2d 191; Weisman v. Arrow Trucking Co., Mo.App., 176 S.W.2d 37; Donley v. Hamm, Mo.Sup., 98 S.W.2d 966. In the case under consideration, however, the plaintiff's attending physician gave as his expert opinion that the condition from which the plaintiff suffered by reason of the accident would be permanent. This was substantial evidence of the fact and therefore the weight to be accorded it was for the jury, and the court did not err in giving the instruction. Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102.
One other assignment of error is raised wherein it is asserted that the verdict and judgment are excessive, but since the case must be retried and a new verdict reached we need not pass upon that point.
For the reasons noted, it is the recommendation of the Commissioner that the judgment be reversed and the cause remanded for a new trial.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the Court.
The judgment of the circuit court is accordingly reversed and the cause remanded for a new trial.
BENNICK, P. J., and ANDERSON and GREEN, JJ., concur.