Opinion
No. 21790.
May 4, 1953.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, ALLEN C. SOUTHERN, J.
Charles L. Carr, R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon, Siddens, C. Thomas Carr, Rex E. Brown and Tucker, Murphy, Wilson Siddens, Kansas City, for appellant.
John E. Honsinger, Kenneth E. Bigus, and Kriger, Honsinger Bigus, Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff had a verdict and judgment for $3000 and defendant appeals.
On the afternoon of April 7, 1949, plaintiff was a passenger upon defendant's bus which was eastbound on 27th Street, in Kansas City, Missouri. Twenty-seventh Street from Paseo to Highland is a viaduct or overpass over Vine Street. Plaintiff lived at 2611 Highland and she intended to get off the bus at 27th and Woodland, since there was no bus stop at Highland. Highland, Paseo, Vine and Woodland are north and south streets. After the bus left Paseo headed eastward down the viaduct plaintiff rang the bell, arose, from her seat behind the rear side door, proceeded the short distance to the door and turned facing southward holding onto the rail or handhold provided for that purpose. Then, according to plaintiff: "All of a sudden a sudden jolt come, it jolted so it torn my hand loose from the rod and I went going back and back and back and it just seemed like I went up and went on the floor." The extent of her injuries is not in dispute here.
Defendant's first contention is that the court below committed error in giving Instruction 1 on behalf of plaintiff, which submitted the case on the theory of res ipsa loquitur, because, defendant asserts, plaintiff's petition pleaded specific negligence.
Plaintiff concedes that if she has charged defendant's with specific acts of negligence, she was not entitled to have her case submitted on the res ipsa loquitur theory.
Plaintiff's petition, in its essential parts, is as follows: "That * * * defendant, its servant * * * acting within the scope of his employment, carelessly and negligently managed, operated and controlled said bus as to cause * * * it to suddenly and violently swerve from its course * * * thereby causing plaintiff to be suddenly jerked and violently thrown to the aisle * * * and as a direct result thereof * * *" plaintiff was injured.
Plaintiff says the above language merely alleges generally the physical cause of her injury and does not go prohibitively further to allege and point out the negligence of the defendant which brought about the existence of this condition, or act of swerving. In our opinion, her position is supported by the decision of our Supreme Court in the case of Boulos v. Kansas City Public Service Co., 359 Mo. 763, 223 S.W.2d 446, 447.
In the Boulos opinion the court sets out the applicable portion of plaintiff's petition as follows: "Plaintiff had charged defendant's bus `was so carelessly and negligently operated, controlled, and maintained by the defendant, its agent, servant, and employee, that it was caused to lurch and jerk in a sudden, violent, and unusual manner * * * causing this plaintiff to be thrown violently to the floor.'"
The Supreme Court then reviewed the cases, including most of those cited by defendant herein, and, at the conclusion of its review said:
"These cases differ from cases wherein there is an unusual occurrence with attending circumstances, the physical cause of plaintiff's injury, sufficient to justify an inference of some kind of negligence for which defendant should be held responsible, but insufficient to point to the specific negligent act or omission, the legal cause of the injury.
"In the instant case * * * She [plaintiff] could show and submit her position in the bus; the operator's actual or constructive knowledge of her position; the sudden lurch (the result of something the operator negligently did or did not do); and the effect of the sudden lurch upon her; but it seems she did not know — at least she did not allege, nor did she show and submit — what the operator negligently did or failed to do in causing the bus to lurch." (Italics ours.)
In short, the Supreme Court has stated in the above opinion that a plaintiff may plead the physical cause of his injury, so long as he does not go further and plead the legal cause thereof. This is exactly what the plaintiff in the case at bar has done — she has pleaded the physical act, i. e., the violent swerve, which caused her injury, and pleaded no more. Defendant's contention is without merit.
Defendant's next point is that it was error to give said Instruction 1 because plaintiff's evidence tended to prove, specific negligence. Plaintiff concedes the rule to be that where a plaintiff's evidence proves specific negligence its is error to submit the case to the jury on general negligence.
Defendant's evidence disclosed that a black Studebaker car traveling in the same direction as the bus suddenly made a right turn in front of the bus; that the operator of the bus, confronted with an unexpected emergency, applied the brakes in order to keep from hitting the car.
Did plaintiff's evidence show specific negligence? We think it did not. She testified that as the bus proceeded eastward she was standing facing south at the rear side door of the bus with her hand grasping the handhold. When asked whether or not she "saw any car connected with the accident in any way," her answer was, "I did not. I never saw any car."
Plaintiff produced only one witness to the injury other than herself. That witness, Mr. Hayter, testified that he was sitting on the north side of the bus opposite the rear door, and next to the window, facing east in a side seat; that the operator of the bus made a sudden application of the brakes of the bus to keep from hitting a car that was in front of it. Before that he had noticed plaintiff standing at the rear door, and saw her being jerked loose from the rod and fall to the floor. He stated that the bus was picking up speed at the time the operator slammed on the brakes. When he first saw the automobile it was right in front of the bus going south on Highland. He did not see the car come past the bus on the left side thereof; it looked to him like it came out of Highland. The bus was not quite to the intersection of 27th Street and Highland when the operator applied the brakes. The application of the brakes and the sudden stop threw plaintiff to the floor of the bus; that the bus operator was not successful in getting the bus stopped right away, but that it went more than a length of the bus into the short block across Highland, probably stopping at the alley.
The case of Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197, 198, presented the same issue now before us. A rather extended except from that opinion is necessary in order to show how clearly the holding therein governs the instant one. It follows:
"* * * Defendant's position is based upon testimony of plaintiff's witness Dr. Harry Morton, who was seated next to the aisle on the first or second cross seat of the streetcar, facing the front of the car. Forty-seventh street is an east and west Street and defendant's double tracks, eastbound and westbound, cross Paseo a short distance north of 47th street, running substantially parallel thereto. * * * Dr. Morton's testimony on the issue, in narrative, was to the following effect: The streetcar started into the intersection. Witness saw a southbound automobile, traveling at an estimated speed of 50 miles an hour, trying to beat the streetcar across the intersection. The automobile was going too fast. It was right in front of the streetcar; the whole picture was right there; first, it was north of the streetcar, then right in front of the streetcar, then south of the streetcar. Witness could not estimate how far the automobile was from the streetcar when he first saw it. Witness testified that the motorman stopped the streetcar just in time to miss hitting the automobile; if he `had not suddenly slowed down or stopped' there would have been a collision. The automobile drove squarely into the path of the streetcar. Witness testified he had not been on streetcars when the motorman stopped in such manner as to cause people to fall to the aisles, but that he had experienced stops as sudden as this on one or two occasions to avoid an accident, and this was the only stop of that nature on that particular trip. Dr. Morton did not notice which way the motorman was looking at the time the streetcar started across the intersection. Asked if he heard the motorman signal when he started, he answered `I don't recall.' He could not state the speed of the streetcar, whether it was more or less than 15 miles an hour."
After commenting upon the cases cited by defendant therein, most of which have likewise been cited by defendant herein, the Supreme Court stated:
"In the instant case plaintiff's evidence went to establish that the occasion for the motorman making the sudden stop was the operation of the motor vehicle across the path and immediately in front of the streetcar at a high rate of speed; but 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 streetcar to come to such a sudden and violent stop as to throw plaintiff backwards as described in the evidence."
A case strikingly Similar to the Semler case is one by this court, that of Sharon v. Kansas City Public Service Co., 208 S.W.2d 471. Three late cases of our Supreme Court cite the Semler case with approval. They are Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, Williams v. St. Louis Public Service Co., 253 S.W.2d 97, and McCaffery v. St. Louis Public Service Co., 252 S.W.2d 361, 365. In the latter case it is said:
"Plaintiff in the instant case (even giving the testimony of the witness Mr. McKeever the most favorable possible construction from the standpoint of defendant) went no further than to prove that the jolt was caused by the effect of brakes applied by the operator. What specific negligence on defendant's part caused the jolt was not shown; it remained for the jury, if it so found, to infer at the very least that the jolt was caused by some negligence of defendant in the operation of the braking apparatus or some negligence in the maintenance of the braking system." It is obvious that defendant's point is not well taken.
Defendant also says the said Instruction 1 is erroneous because "after hypothesizing a set of facts from which the negligence of the defendant could be presumed, then improperly limited the jury to looking to other facts and circumstances in evidence to find that the occurrence was not due to the defendant's negligence." The instruction follows exactly the one suggested for use in res ipsa loquitur cases by the Supreme Court in the case of Harke v. Haase, 335 Mo. 1104; 75 S.W.2d 1001, 1004.
Defendant next asserts that it was error to give Instruction 1 because "The court also gave Instruction No. 2 which submitted the plaintiff's case on specific negligence and therefore the two instructions were confusing, misleading, inconsistent and contradictory." Contrary to what defendant says, Instruction 2 does not submit plaintiff's case on specific negligence. Both Instruction 1 and 2 were approved by the Supreme Court in the Boulos, case, supra, where, as we have shown, the factual situation was very similar to the one appearing in the case at bar.
Defendant's final contention is that it was error to give plaintiff's Instruction 4 because it authorized the jury to assess damages without any finding of negligence. The instruction dealt only with the measure of damages. It was preceded by three other instructions offered by plaintiff, all of which informed the jury what findings were necessary in order to return a verdict for plaintiff. When read together with these other instruction, there could have been no award of damages to plaintiff without a finding of negligence. As this court said in the case of Scott v. Kansas City Public Service Co., 115 S.W.2d 518, 525: "It is insisted that plaintiff's Instruction No. Two is erroneous because it assumes negligence on the part of the defendant and ignores contributory negligence on the part of the plaintiff. This instruction was solely on the measure of damages and read in connection with plaintiff's Instruction No. One, is not erroneous."
Similar instructions on measure of damages have often been approved. See Brown v. Adams Transfer Storage Co., Mo.App., 31 S.W.2d 117, 123 and Ross v. Wilson, 236 Mo.App. 1178, 163 S.W.2d 342, 347.
Finding no error prejudicial to defendant, the judgment is affirmed.
All concur.