Opinion
No. 42736.
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, WILLIAM K. KOERNER, J.
Russell J. Horsefield, William H. Bruce, Jr., St. Louis, for appellant.
Carroll J. Donohue, H. Jackson Daniel, Salkey Jones, St. Louis, for defendant-respondent, Harold Donovan, St. Louis, of counsel.
This is an appeal from a judgment entered on defendant's verdict in plaintiff-appellant's suit for $10,000 damages for alleged injuries received while a passenger on defendant-respondent's motorbus. The case was submitted under the res ipsa loquitur doctrine. Plaintiff's contention, among others, is that the court erred in giving instruction 2.
Clay, a north and south street, and Jefferson, an east and west street, intersect in Kirkwood. Clay is about 35' to 40' wide and Jefferson about 50' wide east of Clay and perhaps somewhat narrower west of Clay. There is a stop sign at the northeast corner of the intersection for traffic proceeding west on Jefferson. There are no stop signs at Jefferson for traffic proceeding north or south on Clay. Defendant's busses regularly proceed west on Adams which is one block north of Jefferson, turn left, and proceed south on Clay. Argonne is the first street south of Jefferson. There is a bus stop on the southwest corner of Adams and Clay and one at Argonne and Clay, but none at Jefferson and Clay. The intersection is open and fairly level. At the time of the occurrence it was daylight and the streets were dry.
Plaintiff, a passenger on defendant's southbound bus, wishing to alight at Clay and Argonne, arose from her seat at some point south of Adams and north of Jefferson, signaled the operator, turned and started toward the rear exit door. When she had taken two steps, the bus gave an unusual and terrific jerk and she "went spinning toward the front, landing in a sitting position close to the driver", as a result of which she was injured. Plaintiff did not know what caused the unusual movement or exactly where the bus was at the time of the jerk. Plaintiff did testify in answer to a question that the jerk was caused by the sudden application of brakes, but after an objection the witness asked that the question be repeated and then answered that she didn't know what caused the bus to jerk.
Three passengers testified for plaintiff. One said the bus came to a stop at or in the intersection of Clay and Jefferson. Another testified that as the bus approached Jefferson it was traveling 18 to 23 m.p.h.; that when it reached the north curb line of Jefferson, the brakes were applied and a sudden stop was made with the front end of the bus 5' to 7' into the intersection; that at the time the bus operator applied the brakes, witness for the first time saw an automobile proceeding west on Jefferson which was then halfway across the intersection in its regular traffic lane; that the front of the bus came within 10' of the side of the automobile; and that no collision occurred. The other witness testified that the bus did not come to a complete stop at the intersection, but crossed Jefferson and then stopped.
Defendant's operator testified that he made a stop at the southwest corner of Clay and Adams and proceeded south toward Jefferson at a maximum speed of 20 m.p.h. When the front of his bus was at a place 50' to 75' north of the north curb line of Jefferson and the bus traveling at about 20 m.p.h., he saw an automobile proceeding west in Jefferson at about 30 m.p.h. then at a point 100' east of the east curb line of Clay; that he continued to watch the automobile and decreased the speed of the bus to about 15 m.p.h.; that the automobile decreased its speed to about 20 m.p.h. when "pretty close" to the intersection; that the bus at the time the automobile decreased its speed to 20 m.p.h. was about at the intersection; that the automobile speeded up and the bus operator put on the brakes "to keep from hitting him"; that the first application of brakes was made at the north curb line of Jefferson; that there was no contact between bus and automobile; that as the automobile crossed the east curb line of Clay it swung into the eastbound traffic lane and continued west, passing within 2' of the moving bus; that the bus proceeded across the intersection and made a complete stop somewhere south of the south curb line of Jefferson; that at the time the automobile passed in front of the bus, the bus was moving about 5 m.p.h.; that no horn was sounded; that the bus operator assumed the automobile was going to stop at the east curb line of Clay; that at a speed of 10 m.p.h. the bus could have been safely stopped in about 30 feet.
Defendant's only other witness with respect to the occurrence was a passenger, Douglas Finchen, whose testimony was somewhat conflicting. He testified that when the bus was 35' to 40' north of the north curb line of Jefferson and traveling 15 to 20 m.p.h., he saw an automobile proceeding west on Jefferson at 30 to 35 m.p.h., then either going through the stop sign or about 10' east of the stop sign which was on the northeast corner of Jefferson and Clay; that it looked as though the automobile slowed down and then kept on going; that the bus operator put on the brakes and plaintiff fell; that there was no decrease in the speed of the bus prior to the time the brakes were applied; that the automobile passed in front of the bus with its right side 2' or 3' south of the front end of the bus; that the brakes of the bus were first applied when the bus had proceeded about 1' into the intersection; that the automobile slowed to 15 or 20 m.p.h. but did not stop at the sign; that at the time the bus brakes were applied, the automobile was three fourths across the intersection.
Plaintiff's instruction 1 hypothesized a carrier-passenger relationship between plaintiff and defendant, the violent, extraordinary, and unusual swerving or stopping, and plaintiff's resulting injuries. It then told the jury that such facts were sufficient circumstantial evidence to warrant a finding of negligence on the part of defendant and that they 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.
Instruction 2 given for defendant was: "The Court instructs the jury that it was the duty of the defendant to exercise the highest degree of care for the safety of plaintiff, a passenger on the bus, and likewise to exercise 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 mentioned in the evidence was operated westwardly on Jefferson Avenue and into the intersection of Jefferson avenue and Clay avenue, at a rate of speed about 20 miles per hour, and failed to stop before entering said intersection in violation of a boulevard stop sign for westbound traffic at said intersection, if you so find, and if you further find that said automobile was then driven into the path of defendant's moving motorbus, and if you further find that the operator of the bus was confronted with an emergency as the result thereof, if you so find, and that the operator of the bus made an effort to avoid striking the automobile 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 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."
We note that there was evidence from which the jury could reasonably find that some negligence of defendant caused or contributed to cause the emergency situation hypothesized in instruction 2. There was evidence from which the jury could reasonably find that defendant's bus proceeded at an undiminished speed of 15 to 20 m.p.h. for 35' or 40' after defendant's operator saw or should have seen that the automobile proceeding west on Jefferson was passing or was about to pass the stop sign in question; that defendant's operator did not apply the bus brakes until after it had passed the north curb line of Jefferson; that the bus could have been brought to a safe stop under the conditions there existing within 30 feet. Thus the jury could have reasonably found that defendant, in the exercise of the highest degree of care, could have slowed or stopped its bus and thereby have avoided the emergency situation hypothesized in the instruction and that failure to so do created or contributed to create the emergency. Any such finding was not compelled by the evidence and indeed the jury under all the evidence could well have found to the contrary. We simply make clear that such a finding would have been supported by the evidence.
Instant instruction 2 is substantially identical with instruction 4 in Grace v. St. Louis Public Service Company, Mo. Sup., 249 S.W.2d 409, decided concurrently herewith, except for a necessarily different factual hypothesis; and instant instruction 2 is substantially 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 2 included the phrase (which appeared also in the instruction in the Grace case): "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 instructions in the Rohde and Grace cases prejudicially erroneous because each 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 opinions in the Rohde and Grace cases, and without repeating what was there said, instant instruction 2 is likewise prejudicially erroneous; unless, as suggested by defendant, instruction 3 given on behalf of plaintiff in this case cures the defect for which the instructions in the Rohde and Grace cases were held erroneous; or unless certain testimony, hereinafter mentioned, adduced by plaintiff makes inapplicable our holdings in the Rohde and Grace cases.
Instruction 3 was: "The Court instructs the jury that the negligence, if any, of the westbound motorist mentioned in the evidence is no defense to plaintiff's cause of action against St. Louis Public Service Company unless said negligence was the sole cause of plaintiff's injuries.
"The Court instructs you that if you find and believe from all the evidence and other instructions given you that the defendant St. Louis Public Service Company was negligent and that such negligence, if any, directly concurred and combined with the negligence, if any, of the driver of the westbound automobile mentioned in the evidence to cause plaintiff's injuries, if any, then your verdict should be in favor of the plaintiff and against the defendant."
The foregoing instruction does not deal in any respect with the emergency submitted by instruction 2 and does not require a finding which supplies the omitted essential requirement of instruction 2 prerequisite to the application of the emergency doctrine, viz., that no negligence of defendant caused or contributed to cause the emergency hypothesized. Without determining whether instruction 3 is correct (that question is not before us), we hold that that instruction, when considered in connection with instruction 2, does not supply the deficiency for which instructions like instant instruction 2 were held erroneous in the Rohde and Grace cases.
Instant plaintiff had alleged generally the "violent, extraordinary and unusual swerve or stop" of the bus for a cause unknown to her. Plaintiff's own testimony, heretofore summarized, did not limit the inferences of negligence to which she was entitled under a res ipsa submission nor did it prove specific negligence. A witness for plaintiff, however, testified that when the bus brakes were applied at the north curb line of Jefferson, witness saw an automobile traveling west on Jefferson and then halfway across the intersection; that a sudden stop was made when the front end of the bus was 5' to 7' in the intersection. From plaintiff's own testimony as to the circumstances of her fall and the testimony of this witness, it may be said that plaintiff proved that the stopping of the bus occurred because of a sudden application of the brakes by the bus operator in order to avoid colliding with an automobile approaching and crossing the path of the bus. It is unnecessary to determine whether this evidence constituted proof of specific negligence. We may say by way of dictum that it did not. This for the reason that while this testimony showed the cause of plaintiff's fall, in the sense that it showed the fall resulted from the physical act of the operator in making a sudden application of the brakes, it did not prove the specific negligent cause, if any, which caused or contributed to cause plaintiff's injuries. Semler v. Kansas City Public Service Company, 355 Mo. 388, 196 S.W.2d 197.
There is language contained in the recent majority opinion of the Court en Banc in Lukitsch v. St. Louis Public Service Company, Mo.Sup., 246 S.W.2d 749, which indicates that proof that a sudden jerk of a bus is caused by a sudden application of brakes may under certain circumstances constitute proof of specific negligence. This language, however, was, as we shall point out, unnecessary to the conclusion of the court as to the instruction there involved. And, in any event, the meaning of that language must be determined by considering it in relation to the specific facts of that case. So viewed, we think the Lukitsch case holds, on the question of proof of specific negligence, that where the facts of a case have excluded every reasonable inference of negligence, other than negligence, if any, in the manner in which brakes were applied, proof that a jerk was caused by sudden application of brakes is proof of specific negligence.
But, as we have said, we need not determine whether instant plaintiff's proof showed specific negligence. This, for the reason that whether instant instruction 2 is erroneous is in no way dependent upon whether plaintiff was or was not entitled to a res ipsa submission. The instruction in the Lukitsch case, supra, was held proper for one reason, viz., because "the facts in the case * * *, in and of themselves, exclude any reasonable inference of negligence on the part of the bus operator in bringing about the emergency and that he could not reasonably anticipate the car would suddenly swerve immediately in front of the bus * * *." [246 S.W.2d 753.] In the instant case, neither plaintiff's evidence nor defendant's evidence nor all the evidence excluded a reasonable inference of negligence on the part of the bus operator in causing or contributing to cause the emergency. On the contrary, both from plaintiff's evidence and from defendant's evidence, the jury could reasonably infer that some negligence of defendant caused or contributed to cause the emergency. Indeed, under plaintiff's evidence that the unusual movement of the bus was caused by a sudden application of the brakes made by the operator to avoid running into an automobile, the only negligence in operation of which defendant could have been guilty was negligence in bringing about the emergency.
It is clear that the Lukitsch case goes no further than to hold that where plaintiff, by her pleading, limits herself to the negligence of the operator, and where plaintiff's evidence or "the facts in the case" exclude any reasonable inference of negligence on the part of defendant in bringing about the emergency, there is no necessity for including in an instruction the hypothesis that no negligence of defendant caused or contributed to cause the emergency, and an "emergency" instruction omitting such a requirement is not erroneous.
Plaintiff's evidence in this case, whether it proved specific negligence or didn't prove specific negligence, did not make unnecessary the inclusion in instant instruction 2 of the essential requirement prerequisite to the application of the emergency doctrine that no negligence of defendant caused or contributed to cause the emergency hypothesized in the instruction.
Our view that instruction 2 is prejudicially erroneous makes it unnecessary for us to consider appellant's assignments of error pertaining to the admission of testimony and the refusal of an instruction.
For error in giving instruction 2, the judgment is reversed and the case remanded.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.