Opinion
No. 27947.
December 19, 1950. Rehearing Denied January. 19, 1951.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, MICHAEL J. SCOTT, J.
Ellis S. Outlaw, St. Louis, John J. Spencer, Jr., Washington, D.C., for appellant.
Paul H. Koenig, William L. Mason, Jr., John W. Joynt, St. Louis, for respondent.
This is an action for damages arising out of personal injuries that the plaintiff suffered when a taxicab in which she was a passenger came into collision with another automobile. There was a verdict and judgment for plaintiff in the sum of $4500, from which the defendant prosecutes this appeal.
The plaintiff was employed as a coach cleaner for the Pennsylvania Railroad and after leaving her place of employment on December 7, 1947, she hailed the defendant's taxicab at Laclede and Rankin Avenues, which are thoroughfares in the City of St. Louis. It was about four o'clock in the afternoon and plaintiff desired to go to her home which was to the west, on Finney Avenue. The cab that she hailed was traveling east with some passengers but the driver stopped and informed the plaintiff that he was obliged to deliver the passengers downtown but if she wished she could ride downtown and he would then take her west to her home. Since the rear seat was occupied plaintiff got in the front seat with the driver. After the other passengers had been taken to their destination the cab went westward toward the plaintiff's home. When it reached Grand Avenue it turned northwardly and traveled in that direction until it reached the intersection of Bell Avenue. The plaintiff was paying no attention to traffic and did not know what occurred at this point, but the cab in which she was riding collided with another automobile. The force of the collision threw the plaintiff about in the cab and caused her head to strike the windshield. This resulted in injuries to her head and neck. She also suffered injuries to her knees, right hip and abdomen and was unconscious for a brief period of time. She was taken from the scene of the collision to a hospital where she received first aid and then went to her home in another cab.
The defendant's driver, Anderson Young, testified that as he reached the intersection of Grand and Bell, while traveling north on Grand, an automobile traveling southwardly into the intersection turned to go east on Bell and collided with the cab. The point of collision was six to eight feet north of the south curb line of Bell. Just before the collision occurred the cab was traveling about ten miles per hour and Young stated that he could stop it within three feet. At one point in his testimony he stated that he stopped when he saw the automobile headed toward him but he later testified "* * * After he hit me I stopped". Young also said that he first saw the other automobile when his cab was at the south curb line and at that time the automobile was at the north curb line of Bell. He estimated the distance between the cars at twenty to twenty-five feet at the time when he first saw the automobile and said that it turned directly into his cab.
The first point raised by the defendant is that the plaintiff was guilty of contributory negligence as a matter of law and that such negligence bars her from recovery. It is true that if there was any properly chargeable negligence on the part of the plaintiff which contributed to the collision from which her injuries resulted such negligence is a complete defense, and where such negligence is established by the plaintiff's own evidence as a matter of law the court should direct a verdict. State ex rel. Kansas City Southern Ry. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Rowe v. Henwood, Mo.App., 207 S.W.2d 829; Nicholas v. Chicago, B. Q. R. Co., 239 Mo.App. 421, 188 S.W.2d 511. The defendant, however, predicates his claim of contributory negligence on the theory that the plaintiff was under a duty to warn the cab driver of the impending collision. He relies upon two cases which hold that a guest in an automobile must exercise ordinary care for his own safety when the vehicle in which he is riding approaches a railroad crossing. The facts under consideration are in no way analogous to that situation for the plaintiff was a passenger for hire in a taxicab. Where, as here, the defendant invites the public to employ his cabs as a means of transportation from place to place he is engaged as a common carrier. Van Hoefen v. Columbia Taxicab Co., 179 Mo.App. 591, 162 S.W. 694; State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99; Payne v. Stott, Mo.App., 181 S.W.2d 161; Abramovitz v. Wellston Taxi Co., Mo.App., 208 S.W.2d 834. Passengers under such circumstances may rely upon the carrier to perform his legal duty to transport them with safety and they are not required to anticipate negligence on the part of the driver. Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79; Caley v. Kansas City, Missouri Kansas City Public Service Co., 226 Mo.App. 934, 48 S.W.2d 25; Dennis v. Wood, 357 Mo. 886, 211 S.W.2d 470; 13 C.J.S., Carriers, § 774, page 1543. There is nothing in the evidence tending to prove the plaintiff negligent in any respect for she was paying no attention to the operation of the vehicle in which she was riding or the approaching traffic, and she was under no duty to observe approaching traffic or to direct the driver in the operation of the cab.
The defendant also raises the contention that the mere showing that his cab collided with another automobile does not give rise to any presumption of negligence on the part of his driver. General negligence was pleaded in this case and it was tried upon the res ipsa loquitur doctrine. This doctrine has been frequently applied to passenger and carrier cases where the defendant's servant was in exclusive control of the vehicle or instrumentality involved, and the occurrence which brought about the injury was one that does not ordinarily happen in the absence of negligence on the part of the one in control When such a showing is made, there is a basis for inferring that the occurrence was caused by lack of due care on the part of the defendant. Powell v. St. Joseph Ry., Light, Heat Power Co., 336 Mo. 1016, 81 S.W.2d 957; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130; Payne v. Stott, Mo.App., 181 S.W.2d 161.
After adequate proof of an accident giving rise to an inference of negligence on the part of the defendant the defendant may, of course, offer evidence in explanation of the occurrence to show that he was not to blame. The issue thus raised is one for the jury under proper instruction by the court. Nix v. St. Louis Public Service Co., Mo.App., 228 S.W.2d 369; Payne v. Stott, Mo.App., 181 S.W.2d 161; Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654.
It is asserted that the court erred in not instructing on the defendant's theory of the case, but the court gave all of the instructions requested by the defendant except one. That instruction directed a verdict for the defendant upon a finding that the cab was not moving at the time of the collision. Such a finding of fact would not exculpate the defendant from negligence since the cab might have been negligently brought to a stop in front of the other car at an interval of time and space too short to have avoided a collision. The instruction therefore should have been refused.
There are no other points properly before the court on this appeal for although the defendant in his argument raises six additional contentions not included in the points relied on, he cites no authorities for such contentions. Rule 1.08 of the Supreme Court of Missouri provides in part: "The points relied on, which shall specify the allegations of error, with citation of authorities thereunder; provided, however, if more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first".
We have at times been liberal in the construction of the rule to the extent of considering points raised elsewhere in appellant's brief, but where, as here, defendant in the conclusion of his argument sets out six contentions in no way related to those mentioned in his points relied on and citing no authority in support of any of those contentions, we cannot consider them. To do so would result in nothing but confusion in the presentation of appeals, and it would be unfair to the respondent who may properly confine his brief to the points upon which the appellant professes to rely. Aulgur v. Strodtman, 329 Mo. 738, 46 S.W.2d 172; Botto v. James, Mo.Sup., 209 S.W.2d 256.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.