Opinion
No. 28413.
October 21, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, DAVID J. MURPHY, J.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellant.
Keegan Rickhoff and Gregg Wm. Keegan, St. Louis, for respondent.
This is a suit brought by plaintiff, a native of Greece but a naturalized citizen for many years, to recover for injuries she alleges were sustained while a passenger on a northbound bus of the defendant on Kingshighway north of Chouteau in the City of St. Louis, Missouri, on October 20th, 1950.
Plaintiff, relying on general negligence in her pleading and submission, obtained verdict and judgment for $3000, which were followed by timely but unavailing motion for new trial and this appeal of the defendant.
It is contended by defendant that the trial Court erred (1) in overruling motion for directed verdict, and (2) in giving Instruction One by which the case was submitted to the jury on general negligence. Stated otherwise, though admitting that a prima facie case of res ipsa loquitur was initially made by the plaintiff, defendant claims that in going further and offering the testimony of the bus operator (as her witness) she destroyed her case and negatived negligence on the part of the defendant, but that if there was a case for the jury it should have been submitted on specific, not general, negligence.
As defendant in support of its position relies on the statements of bus-driver William F. McClain, his testimony is here set out, omitting the preliminary questions and matters immaterial:
"Q. Now, did something unusual occur there on that occasion, on October 20, 1950? A. Yes, it did.
"Q. Did that occur in the vicinity of Kingshighway and Chouteau? A. Yes, sir. R. 124.
"Q. How far north of the intersection at Kingshighway and Chouteau would you say this incident occurred? A. About fifty or sixty feet north.
"Q. Fifty or sixty feet north? A. Yes.
"Q. Did the bus make a violent stop there? A. I would say it made a sudden stop. R. 126.
"Q. How wide a street is Kingshighway at that point? A. I believe it's thirty-five or forty feet wide, that's my estimation. You're speaking of the northbound lane?
"Q. The northernmost half of Kingshighway? A. Thirty-five or forty feet. R. 129-130."
Cross-examination
"Q. Why did the bus make that sudden stop, Mr. McClain? A. There was a truck stopped in front of me.
"Q. Where was the truck the first time you saw it? A. It was making a left turn off of Chouteau on to Kingshighway.
"Q. What did you do? Follow that truck for a short distance? A. Yes. He cut in front of me and I let it go by, then I started to follow behind him. He got possibly fifty or sixty feet beyond Chouteau and he just stopped like that (clapping hands). I stopped, too. R. 131 and 132.
"Q. To avoid striking that truck did you apply your brakes? A. Yes.
"Q. Was it the application of the brakes that caused the bus to stop? A. Yes.
"Q. Was there any way for you to avoid hitting that truck without putting on your brakes? * * * (Objection as conclusion and invades province of Jury — overruled). A. No. There wasn't no way but stopping. There wasn't no way to keep from hitting that truck only stopping. That was the only way. R. 132.
"Q. That truck driver set his truck down fast? A. Yes.
"Q. Do you know why that truck came to a stop like it did? A. No, sir, I don't. R. 133."
Re-direct examination
"Q. How far was this truck in front of you when you came to a stop? A. About five feet, ten feet, something like that. I'll say five feet. R. 136.
"Q. Now, how far was the front end of your bus from the rear end of this truck when it made the stop? * * A. About fifty feet.
"Q. You were fifty feet to the rear of this truck at the time the truck came to a stop? A. Yes. R. 140-141.
"Q. Now, travelling twelve to fifteen miles an hour, as you say you were travelling, under the circumstances, with safety to yourself and that bus, within what distance can you bring that bus to an emergency stop with safety to yourself and the passengers * * *? A. About fortyfive feet. R. 141."
While it is true that the plaintiff is bound by her evidence in a res ipsa loquitur case, just as she would be in an ordinary negligence action, Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, nevertheless she is not bound by the conclusion of the motorman, (to which she made objection) that there was no way "to avoid hitting that truck — but stopping — There wasn't no way to keep from hitting that truck only stopping. That was the only way". R. 132. Thus, in Brown v. Adams Transfer Storage Co., Mo.App., 31 S.W.2d 117, it was held that an automobile driver's opinion that there was nothing he could have done to avoid collision was properly rejected, and in Irvin v. Kelting, Mo.App., 46 S.W.2d 924, the opinion of the witness as to whether motorist could have avoided hitting a boy on a scooter was held correctly excluded since this was matter for the jury.
Bearing in mind the evidence set out above (omitting the conclusion referred to), and also that it is not claimed by defendant that plaintiff failed to prove her case under the res ipsa doctrine but rather that in doing this she went too far and proved too much and thereby showed that there was no negligence, we turn to the cases cited.
In Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795, the trial court directed a verdict for defendant. On appeal the question was whether the plaintiff, after having made a case of general negligence then went further and destroyed her prima facie case by showing exactly how the accident occurred and proved thereby that there was no negligence on the part of the defendant. The principle contended for herein was upheld, but the facts distinguish that case from the one at bar for there the bus driver of defendant had virtually stopped (or "almost stopped", as Defendant's brief has it) his bus on the right hand side and off the road except for his left rear wheel when he was struck by the truck of another coming in the opposite direction and crossing over the entire width of the road.
In Sleater v. John R. Thompson Co. Mo.App., 173 S.W.2d 591, involving injury sustained in holding water glass in appliance to obtain water, the petition stated general negligence, a motion to make definite and certain was sustained and, plaintiff refusing to plead further, judgment was entered for defendant. On plaintiff's appeal the Court affirmed, not because pleading and proof shows no negligence (as we understand defendant's reliance on the case) but because, as the Court stated, "We do not believe that the petition states a cause of action under the doctrine of res ipsa loquitur." 173 S.W.2d loc. cit. 595.
In Brown v. St. Louis County Gas Company, Mo.App., 131 S.W.2d 354, though plaintiff recovered below, the Court on appeal held that plaintiff did not plead and prove her case under the doctrine of res ipsa loquitur "since gas company did not have exclusive management and control or right to control the instrumentality producing the damage". 131 S.W.2d loc. cit. 355 and 360.
Again in Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, 189 S.W. 805, L.R.A. 1917B, 1091, the facts are not similar, as there the Court held that plaintiff who was injured on a "roller coaster" or scenic railway alleged specific negligence in his petition and failed to prove his case at the trial.
It will be seen, therefore, in the circumstances before us, that these cases do not support defendant's position, and we hold that a case was made for the jury.
The question then arises as to the manner of submission, for defendant insists in its second point that plaintiff's instruction one which submitted the case on general negligence was erroneously given in that specific negligence was proved.
In Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, loc. cit. 661, this Court, under similar circumstances, said:
"The principle of law relied on by appellant is well established. The doctrine of res ipsa loquitur, being a rule of necessity, cannot be invoked where a plaintiff presents substantial evidence of specific acts of negligence as the cause of the injury about which complaint is made. (Citing numerous cases.) And while it is true that under the decisions the benefit of the res ipsa loquitur doctrine will not be lost if, after plaintiff's evidence is received, the precise cause of the accident remains in doubt or is not clearly shown, such qualification is satisfied if the inference of specific negligence to be drawn from plaintiff's evidence is a reasonable one, sufficient to establish a prima facie case. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130." See also Quadlander v. Kansas City Public Service Co., 240 Mo.App. 1134, 224 S.W.2d 396; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21, and cases cited.
Did plaintiff make a case of specific negligence?
The evidence of the motorman (offered by plaintiff) in this case is to the effect that the bus was proceeding northwardly on Kingshighway, a one-way thorough fare 35 to 40 feet wide; that at a point 50 to 60 feet north of Chouteau Avenue it made a "sudden stop" caused by the application of the brakes; that the brakes were applied because a truck preceding the bus northwardly on this street had stopped; that the truck was about 50 feet in front of the bus when it (the truck) stopped; that the bus was traveling 12 to 15 miles an hour and at that speed could be stopped, with safety, in about 45 feet; that the bus completed its stop 5 feet behind the truck.
In brief that sums up the evidence. There isn't any more needed. It tells all there was to know and it excludes the possibility of any unknown factor. Moreover, it rests the case exclusively on the bus driver's operation of the vehicle. The injury was caused by the sudden stop, which was, in turn, brought about by the application of the brakes which the motorman seeks to justify on the ground that the truck in front of him stopped. He was driving the bus on a wide one-way street following the truck, and there was no showing of other traffic. Under all the circumstances these facts should have been submitted by plaintiff as specific negligence, so as to determine whether the bus driver was negligent in making a sudden stop, for example, in failing to swerve, or in failing to keep a lookout and to maintain proper distance from the truck in front of him.
The facts in the case of Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, recently decided by our Supreme Court, are somewhat similar to those in the case at bar, and there the Court, after pointing out that the petition did not allege general negligence of the defendant but of its bus driver only, said, 246 S.W.2d loc. cit. 752-753:
"* * * in res ipsa loquitur cases two elements are always essential: (1) the petition must allege general negligence, and (2) the evidence must not disclose specific negligence as the proximate cause. La Vigne v. St. Louis Public Service Co., supra. And if specific negligence is either pleaded or proved, recovery under this doctrine is denied. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599.
"The La Vigne and Nix cases, supra, are true res ipsa loquitur cases and what is said in those cases is not applicable in this case. Construing the petition and evidence in this case as liberally as we may, we must hold that plaintiff's right of recovery was limited to whether the sudden application of the brakes on the bus and the resulting sudden jerk and plaintiff's consequent injuries constituted negligence in the operation of the bus under the facts and circumstances shown in this case." (Italics ours.)
The difference between our case and that of Lukitsch is that here we have a pleading alleging general negligence of the defendant and there the Supreme Court had before it an allegation of general negligence as to the bus driver alone, but the evidence in both cases limited negligence strictly to the operation of the bus by the driver. And the rule applies with equal force in both instances.
Plaintiff cites the case of Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197, where it was held that the case was properly submitted on general negligence but in discussing the facts pointed out that, while the plaintiff's evidence tended to establish that the reason for the motorman making the sudden stop was the operation of the motor vehicle across the path and immediately in front of the street car at a high rate of speed, the "plaintiff did not go further and attempt to prove the specific negligent act of defendant (such as a failure to maintain a proper lookout or reversing the car instead of applying an emergency brake) in causing the street car to come to such a sudden and violent stop". 196 S.W.2d loc. cit. 200. A similar result was reached in the case of Sharon v. Kansas City Pub. Service Co., Mo.App., 208 S.W.2d 471, another street intersection case.
In La Vigne v. St. Louis Public Service Co., Mo.Sup., 181 S.W.2d 541, also cited by plaintiff, no question was raised about proof of specific negligence by plaintiff. The point was that the instruction, and argument thereon, involved the limited theory of negligence of the motorman in making the stop and the Court said this was error "unless the facts shown reasonably exclude any other hypothesis than that of his negligence". 181 S.W.2d loc. cit. 543.
So in Harding v. Kansas City Public Service Co., Mo.App., 188 S.W.2d 60, the evidence of plaintiff shows only that the car jerked and threw him down, and, of course, this would not be sufficient to require a submission on specific instead of general negligence. Similarly in Jones v. Kansas City Public Service Co., 236 Mo. App. 794, 155 S.W.2d 775, it was shown that the street car made a "jerk" or "lunge" and the Court stated that the "record is silent as to what caused the car to start with an unusual and violent jerk or lunge", 155 S.W.2d loc. cit. 778, and, therefore, no specific negligence was proved.
In Quadlander v. Kansas City Public Service Co., 240 Mo.App. 1134, 224 S.W.2d 396, plaintiff showed that a bus of defendant, while approaching another from the rear at about 45 miles an hour on a wet pavement, skidded when the brakes were applied, and the rear end struck the forward bus in passing, injuring a passenger therein. The Court stated that skidding alone is not of itself negligence, though it may be considered along with other evidence in determining the question of negligent speed, and added, that even assuming that the evidence indicated a specific act of negligence on the part of defendant's operator, there was still the question of whether the evidence clearly showed that the speed of the bus was the precise and specific cause of skidding and collision, and this was not shown.
The case of Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654, 658 has no application as defendant did not contend that specific negligence was shown but only that "there was a total failure of proof as to any negligence on its part". Moreover, the case was submitted by plaintiff on a measure of damages instruction alone.
In Wenzel v. St. Louis Public Service Co., Mo.Sup., 235 S.W.2d 312, the plaintiff's evidence showed merely that there was an "unusual, terrific stop" of the bus "which threw me forward and tore my grip loose, and out I flew" but there was no evidence as to the specific act or omission which caused the bus to suddenly and violently jerk or the doors to open. 235 S.W.2d loc. cit. 314.
In the case of McKnight v. St. Louis Public Service Co., Mo.Sup., 235 S.W.2d 560 the precise point before the Court was not whether specific negligence was shown and that the submission on general negligence was error, but whether the plaintiff's own evidence negatived negligence of the bus-driver entirely and hence there could be no recovery.
There is nothing in the cases upon which the plaintiff relies which militates against the views expressed above. Therefore, we hold that there was error in giving and reading to the jury Plaintiff's Instruction One which submitted general negligence, and the judgment of the Circuit Court is, accordingly reversed and the cause remanded.
BENNICK, P. J., and ANDERSON, J., concur.