Summary
In Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, l. c. 85(13), this court had before it a case wherein a suitcase was caused to fall from an overhead baggage rack of a coach and to strike the plaintiff.
Summary of this case from Fairley v. St. Louis Public Service CompanyOpinion
No. 40373.
March 8, 1948. Rehearing Denied, April 12, 1948.
1. NEGLIGENCE: Railroads: Pleading: Suitcase Falls on Passenger: Res Ipsa Loquitur: Petition Sufficient After Verdict. Allegations that due to the negligence of defendant a suitcase fell from the baggage rack onto the head of plaintiff passenger were not as definite as they should have been, but they constituted a sufficient charge of general negligence to support a recovery on the res ipsa loquitur theory when no attack was made upon the petition until after verdict.
2. NEGLIGENCE: Railroads: Suitcase Falls on Passenger: Submissible Case. Evidence that the train gave a sudden lurch, causing a suitcase on an overhead baggage rack to fall upon the head of plaintiff passenger, made a submissible res ipsa loquitur case.
3. NEGLIGENCE: Railroads: Suitcase Falls on Passenger: Hypothesized Facts and Circumstantial Evidence: Instruction Not Erroneous. Plaintiff's res ipsa loquitur instruction was not erroneous as to the facts hypothesized or in advising that such facts are sufficient circumstantial evidence.
4. NEGLIGENCE: Railroads: Res Ipsa Loquitur: Exclusive Control of Train: Instruction Not Erroneous. Plaintiff's res ipsa loquitur instruction was not erroneous on the question of exclusive control of the train.
5. NEGLIGENCE: Railroads: Res Ipsa Loquitur: Instruction Upheld. Plaintiff's res ipsa loquitur instruction was not subject to the criticisms that evidence of specific negligence prevented submission under the theory of res ipsa loquitur; that it invades the province of the jury, assumes negligence, suggests a line of reasoning to the jury, is argumentative, or erroneously imposes the burden of disproving negligence on defendant.
6. TRIAL: Evidence: Reference to Plaintiff's Child: Action of Trial Court Sufficient. The trial court took sufficient action in ordering plaintiff's reference to her children to be stricken from the record and was not required to declare a mistrial.
7. NEGLIGENCE: Railroads: Pleading: Suitcase Falls on Passenger: Contributory Negligence: Amendment of Answer Properly Refused. Where the evidence would not have made a submissible issue of contributory negligence it was not error to refuse to permit an amendment after trial raising such issue.
8. DAMAGES: Appeal and Error: Insufficient Assignment: Hearing on Merits: Verdict Not Excessive. The assignment in the motion for new trial that the amount of the award "is so excessive as to show the bias, prejudice and passion of the jury" does not raise the issue of the excessiveness of the amount of the award. But in view of Rule 3.27 the issue will be considered on its merits. The verdict of $15,000 for permanent injury to plaintiff's spine was not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. William B. Flynn, Judge
AFFIRMED.
Thomas J. Cole, Oliver L. Salter and Ragland, Otto, Potter Embry for appellant.
(1) The amended petition fails to state a claim on which relief could be granted. Langenberg v. St. Louis, 197 S.W.2d 621; Kramer v. Kansas City P. L. Co., 311 Mo. 369, 279 S.W. 43; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W.2d 803. (2) The petition does not state a claim under the res ipsa loquitur doctrine. McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104. (3) Accidents arising from abnormal conditions "in the department of actual transportation" comprehend questions arising only from unsafe roadbeds, defective machinery, imperfect cars and clearly kindred matters. 13 C.J.S. 1260, sec. 678(b); Morris v. N.Y. Central H.R.R. Co., 13 N.E. 455; Whiting v. N.Y. Central H.R.R. Co., 89 N.Y.S. 584; 10 Am. Jur. 366, sec. 1623; Klebe v. Distilling Co., 207 Mo. 480. (4) The res ipsa loquitur doctrine does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possessed superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13. (5) To make a res ipsa loquitur case, each of the foregoing elements must exist and be present, in pleading as well as in proof. Brown v. St. Louis County Gas Co., 131 S.W.2d 354; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575. (6) To come within that first definitive element of the doctrine, the petition would have to allege a situation from which the court must be able to take judicial notice, as a matter of common knowledge and experience, that the alleged accident, prima facie, would not have occurred but for negligence on the part of the defendant. It does not do so and, therefore, is insufficient to plead a res ipsa loquitur case. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Kapros v. Pierce Oil Corp., 324 Mo. 992, 254 S.W.2d 777; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Gillick v. D.L. W.R. Co., 145 N.Y.S. 45. (7) This court takes judicial notice of matters of common knowledge and experience, including the conditions prevailing in the operation of well recognized business and other activities. Davidson v. Mo. Orpheum Corp., 236 Mo. App. 1025, 161 S.W.2d 707; State ex rel. City of St. Louis v. Public Serv. Comm., 341 Mo. 920, 110 S.W.2d 749; State ex rel. General Mills v. Waltner, 348 Mo. 852, 156 S.W.2d 664; Rickey v. N.Y. Life Ins. Co., 229 Mo. App. 1226, 71 S.W.2d 88. (8) The appellant was under a duty to exercise only the utmost "practicable" care — that is, the highest degree of care "consistent with the business." Case v. St. Louis Pub. Serv. Co., 192 S.W.2d 595; Liljegren v. United Rys., 227 S.W. 925. (9) Further as to said first definitive element of res ipsa loquitur doctrine, the petition fails to state a cause of action because: the allegations thereof do not reasonably exclude all defensive inferences attributable to negligence on the part of the plaintiff, or on the part of another for whose act the defendant would not be held liable. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Hart v. Emery, Bird, Thayer D.G. Co., 233 Mo. App. 312, 118 S.W.2d 509. (10) It does allege that there was no "action or interference" on plaintiff's part but does not plead a freedom from negligence on her part such as that, by casual observation, she might have discovered that she was seated under a suitcase which was obviously about ready to fall. This is not a particular dealing with contradictory negligence, which it would be incumbent on appellant to plead and prove. It is a particular as to which plaintiff must make an affirmative showing — and would, therefore, have to plead — to bring herself within the doctrine, if otherwise within it. Carlson v. K.C. Clay County St. J. Auto Transit Co., 221 Mo. App. 537, 282 S.W. 1037; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13. (11) The allegations of the petition plead a state of affairs where inferences could as reasonably be drawn that the alleged accident was due to a cause or causes other than negligence of the defendant. Charlton v. Lovelace, supra; Removich v. Bambrick Bros. Const. Co., supra; McGrath v. St. Louis Transit Co., supra; Gibbs v. General Motors Corp., supra; Sleater v. John R. Thompson Co., supra; Hart v. Emery, Bird, Thayer D.G. Co., supra; State ex rel. v. Shelton, 249 Mo. 660; Krause v. Pitcairn, 167 S.W.2d 74; Byers v. Essex Investment Co., 281 Mo. 375. (12) The court should take judicial notice that a carrier does not have such possession of, or control over, such articles (a falling suitcase) as is required to make a res ipsa case; and that therefore, a res ipsa case cannot be stated on the conditions sought to be set up in the petition. Morgain v. Y. M.V.R.R. Co., 172 S.W.2d 1013; Briganti v. Conn. Co., 175 A. 679; Jackson v. Commonwealth, 220 S.W. 743; Murphy v. Boston Elevated Ry. Co., 118 N.E. 191; Morris v. N.Y. Cent. H.R.R. Co., 13 N.E. 455; Chadwick v. L. N.R. Co., 281 S.W. 1018; Saunders v. N. W. Ry. Co., 117 S.E. 4. (13) As to the third definitive element, the petition fails to state a case under the res ipsa loquitur doctrine because there is no allegation that the defendant had superior knowledge of means of information as to the cause of the alleged occurrence or knowledge or means of information, as to the cause of the alleged occurrence, at least equal, if not superior, to those of the appellant. This element is the sole justification for the res ipsa doctrine and, without pleading it, no case is stated. Porter v. St. J. Ry. Light, H. P. Co., 311 Mo. 66, 277 S.W. 913; Terminal Ry. Assn. v. Staengel, 122 F.2d 271; Sleater v. John R. Thompson Co., supra. (14) By the phraseology of respondent's Instruction 1, viz., "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find," she typed her action as res ipsa loquitur or nothing — and thereby abandoned any other theory. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 707 S.W.2d 593; Hughes v. East St. Louis City Lines, 149 S.W.2d 440. (15) Respondent having undertaken only such a submission, and thereby abandoned all other possible theories, if any, the sufficiency of the evidence to make a case must be judged by the sufficiency thereof to make a res ipsa loquitur case. Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 594. (16) Respondent's own evidence was to the effect that the coach gave an unusually violent sidewise lurch and that at that same instant a suitcase fell from above and struck her on the head. To permit a coach to give a violent and unusual sidewise lurch is specific actionable negligence. Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Laycock v. United Rys. Co., 227 S.W. 883; Laycock v. United Rys., 290 Mo. 344, 235 S.W. 91. (17) Respondent herself, having given such evidence of specific negligence, by so doing destroyed her case as a res ipsa case, even if otherwise it would have been one. There is no res ipsa loquitur case where the plaintiff offers evidence of the specific negligence allegedly causing an accident. Powell v. St. Joseph Ry., Heat, L. P. Co., 336 Mo. 1016, 81 S.W.2d 957; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Taylor v. Prudential Ins. Co., 234 Mo. App. 317, 131 S.W.2d 226; Stubblefield v. Federal Reserve Bank, 204 S.W.2d 719. (18) Aside from the foregoing, however, the evidence was insufficient to make a submissible res ipsa loquitur case. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Brown v. St. Louis County Gas Co., 131 S.W.2d 354; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575. (19) The evidence on the part of the respondent was to the effect that she was injured by a suitcase falling from above and striking her on the head. Such an occurrence, if any, does not come within "the department of actual transportation" because accidents arising from abnormal conditions in "the department of actual transportation" comprehend questions arising only from unsafe roadbeds, defective machinery, imperfect cars, and clearly kindred matters; 13 C.J.S., 1260, sec. 678 (b); Morris v. N.Y. Central H.R.R. Co., 13 N.E. 455; Whiting v. N.Y. Central H.R. Co., 89 N.Y.S. 584; 10 Am. Jur., 366, sec. 1623; (20) The res ipsa loquitur doctrine is applied in passenger carrier cases just as it is in other cases unless the accident arises in "the department of actual transportation." McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104. (21) To come within said first definite element of said doctrine, the court must be able to take judicial notice, as a matter of common knowledge and experience, that the alleged accident, prima facie, would not have occurred but for negligence on the part of the defendant. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Gillick v. D.L. W.R. Co., 145 N.Y.S. 45 (22) Respondent's testimony, that she did not look upon the racks before the alleged incident, fails to show a freedom from negligence on her part. To bring herself within the res ipsa loquitur doctrine, there would have to be a showing of freedom from negligence on respondent's part. Carlson v. K.C., Clay County St. Joseph Auto Transit Co., 221 Mo. App. 537, 282 S.W. 1037; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13. (23) To have made a submissible res ipsa case, the evidence would have had to exclude all reasonable defensive inferences. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Hart v. Emery, Bird, Thayer D.G. Co., 233 Mo. App. 312, 118 S.W.2d 509. (24) The court should take judicial notice of conditions prevailing on the vehicles of public carriers on the date of the alleged occurrence, viz., November 29, 1943, and of the fact that, under the prevailing conditions, if not always, the coach passengers were in custody and control of the baggage in the coaches. Davidson v. Missouri Orpheum Corp., 236 Mo. App. 1025, 161 S.W.2d 707; State ex rel. City of St. Louis v. Public Service Comm., 341 Mo. 920, 110 S.W.2d 749; State ex rel. General Mills v. Waltner, 348 Mo. 852, 156 S.W.2d 664; Rickey v. N.Y. Life Ins. Co., 229 Mo. App. 1226, 71 S.W.2d 88. (25) With no more than said showing that appellant had control over the allegedly injuring instrumentality, the evidence failed to prove the second definitive element of the doctrine and, therefore, failed to make a submissible res ipsa case. Morgain v. Y. M.V.R.R. Co., 172 S.W.2d 1013; Briganti v. Conn. Co., 175 A. 679; Jackson v. Commonwealth, 220 S.W. 743; Murphy v. Boston Elevated Ry. Co., 118 N.E. 191; Morris v. N.Y. Cent. H.R.R. Co., 13 N.E. 455; Chadwick v. L. N.R. Co., 281 S.W. 1018; Saunders v. N. W. Ry. Co., 117 S.E. 4. (26) As to the third definitive element of the res ipsa doctrine, the evidence failed to make a submissible case because, the allegedly injuring instrumentality being a falling suitcase (presumably from an overhead baggage rack), the evidence fails to show a situation in which the defendant would have superior knowledge or means of information as to the cause of the alleged occurrence. That element is the sole justification for the res ipsa doctrine, and without it there is no case. Porter v. St. Joseph Ry. Light, H. P. Co., 311 Mo. 66, 277 S.W. 913; Terminal Ry. Assn. v. Staengel, 122 F.2d 271; Sleater v. John R. Thompson Co., 173 S.W.2d 591. (27) The trial court erred in denying appellant's request for the declaration of a mistrial because of respondent's prejudicial testimony that she had had six children. Dayharsh v. Hannibal St. J. Ry. Co., 103 Mo. 570; Ex parte Dick Bros. Brewery Co. v. Ellison, 287 Mo. 139; McCarthy v. Spring Valley Coal Co., 83 N.E. 957. (28) The trial court erred in denying appellant's counsel leave to amend the answer, to conform to the proof, to plead contributory negligence in sitting down below a baggage rack without observing the racks and the baggage therein. Adams v. L. N.R. Co., 121 S.W. 419; Civil Code of Missouri, Sec. 81. (29) The trial court erred in giving Instruction 1, requested by respondent, because: The evidence was not sufficient to make a submissible res ipsa loquitur case, and, therefore, there was not sufficient evidence on which to base, or to justify, the giving of the instruction. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518. (30) By telling the jury, in the second paragraph of said instruction that the hypothesized matters, if found, "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find," it erroneously injects a type of circumstantial evidence not inherent in a res ipsa loquitur case. Tayer v. York Ice Machinery Corp., 342 Mo. 912, 119 S.W.2d 240. (31) By telling the jury, in the second paragraph of said instruction that the hypothesized matters, if found, "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find," a fact inference was erroneously injected into the instruction. (32) There is a distinction in that a presumption is a mandatory deduction which the law directs to be made, whereas an inference is simply a permissible deduction which the reason of the triers of the fact makes, or may make, without instruction to that effect. Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562. (33) The inference of negligence in a res ipsa loquitur case is, therefore, not a presumption — it is an inference of fact and for the triers of the fact. Williams v. S.L.S.F. Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Payne v. Stott, 181 S.W.2d 161; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21. (34) And, by telling the jury that certain facts, if found, were circumstantial evidence warranting a finding of the fact (the fact inference — not legal presumption) of negligence, the instruction erroneously argumentative in character, erroneously invades the province of the jury, erroneously suggests a line of reasoning to be followed by the triers of the fact, and erroneously reads as if — and thereby erroneously suggests or assumes that — the fact of negligence has been proved. Chouquette v. Barada, 28 Mo. 491; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; State ex rel. Hurley v. Becker, 334 Mo. 537, 66 S.W.2d 524. (35) To permit a coach to give a violent and unusual sidewise lurch is not an incident giving rise to an inference of negligence. It is itself specific negligence. Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Laycock v. United Rys. Co., 227 S.W. 883; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91. (36) A plaintiff, in a res ipsa case, does not lose the benefit of that doctrine by offering some evidence of the cause of an accident, if that evidence falls short of showing the specific negligence or leaves the same in doubt. Semler v. K.C. Pub. Serv. Co., 196 S.W.2d 197; Powell v. St. Joseph Ry. Heat, L. P. Co., 336 Mo. 1016, 18 S.W.2d 957. (37) But, here, it obviously being respondent's theory that the alleged lurch was the direct cause of the alleged fall of a suitcase, and any such lurch, if any, being specific negligence, she herself offered evidence of specific negligence and a res ipsa loquitur submission was erroneous. Powell v. St. Joseph Ry., Heat, L. P. Co., 336 Mo. 1016, 81 S.W.2d 957; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Taylor v. Prudential Ins. Co., 234 Mo. App. 317, 131 S.W.2d 226. (38) By her evidence of a violent lurch, respondent destroyed her case, as a res ipsa case, even if it might otherwise have been one. Powell v. St. Joseph Ry. Heat, L. P. Co., 336 Mo. 1016, 81 S.W.2d 957; Conduitt v. Trenton Gas Electric Co., 326 Mo. 133, 31 S.W.2d 21. (39) If the instruction was intended as a submission of specific negligence, it was erroneous in that, by telling the jury that certain facts, if found, were "sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find," it constituted an improper comment on the evidence, invaded the province of the jury, assumed that negligence had been proved, suggested a line of reasoning to be followed by the jury, and was argumentative in character; each of which made it erroneous. Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Ducoulombier v. Baldwin, 101 S.W.2d 96; Hughes v. E. St. Louis City Lines, 149 S.W.2d 440. (40) The instruction erroneously fails to require a finding that the allegedly injuring instrumentality was under the control of the appellant and that the appellant possessed superior knowledge or means of information as to the cause of the alleged occurrence. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Gillick v. D.L. W.R. Co., 145 N.Y.S. 45; Brown v. St. Louis County Gas Co., 131 S.W.2d 354; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575. (41) By the phraseology "unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to defendant's negligence," said instruction either erroneously imposes the burden of disproving negligence on the defendant, or erroneously relieves the plaintiff of the risk of nonpersuation, or makes the instruction prejudicially confusing. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. The verdict was excessive. Arno v. St. Louis P.S. Co., 202 S.W.2d 787.
Chelsea O. Inman and Frank Mattes for respondent.
(1) The petition states a cause of action under the doctrine of res ipsa loquitur, or at least, charges negligence generally. Zichler v. St. Louis Pub. Serv. Co., 322 Mo. 902, 59 S.W.2d 654; Payne v. Stott, 181 S.W.2d 161; State ex rel. Becker v. Koerner, 181 S.W.2d 1004. (2) In a res ipsa case, a general allegation of the defendant is sufficient. 38 Am. Jur., sec. 262, pp. 954, 955; Chicago N.W.R. Co. v. Green, 164 F.2d 55; Payne v. Stott, 181 S.W.2d 161. (3) The evidence justified submission under res ipsa loquitur doctrine. The cause of the occurrence was an unusually violent movement of the coach sufficient to dislodge more than one piece of baggage and throw a passenger to the floor of the coach. The result was the fall of the suitcase and injury to plaintiff. LaVigne v. St. L.P.S. Co., 181 S.W.2d 541; Harding v. Kansas City Pub. Serv. Co., 188 S.W.2d 60; Jones v. Thompson, 353 Mo. 730, 184 S.W.2d 407; Thompson v. Kansas City Pub. Serv. Co., 114 S.W.2d 145; Stolovey v. Fleming, 8 S.W.2d 832; Creahan v. Penn. R. Co., 123 Pa. Sup. Ct. 268; Rosenthal v. N.Y.N.H. H.R. Co., 88 Conn. 65; Prunty v. Allred, 165 P.2d 935. (4) Appellant was not prejudiced by plaintiff's statement that she had six children, because defendant's counsel, by his own questions, previously brought out the fact that she had numerous children. Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; Schleappe v. Terminal Railroad Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Snyder v. American Car Foundry Co., 322 Mo. 147, 14 S.W.2d 603. (5) The statement, though unresponsive, was made in good faith as a part of the explanation of the existence of a pelvic scar which may have resulted from child birth, and not from a pelvic operation which defendant's counsel had inquired about. (6) The trial court struck out the answer, and instructed the jury to disregard it. Such matters, and the appropriate remedy are within the discretion of the trial court. (7) The trial court properly denied defendant's request to amend his answer, and plead contributory negligence. The request was made after the instruction had been prepared, and the case was about to be argued. Plaintiff's deposition had been taken long before the trial. At this stage, the trial court may grant leave only if the cause of action or defense is not thereby substantially changed. Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 605; Simon v. Kresge Co., 103 S.W.2d 523; Dyer v. Harper, 336 Mo. 52, 77 S.W.2d 106. (8) Mo. R.S.A. 847.81 allows amendments as a matter of right only before the filing of responsive pleading. (9) Mo. R.S.A. 847.82 provides that pleadings shall be treated as amended to conform to the proof only — "When issues not raised by the pleadings are tried by express or implied consent of the parties." There was no such consent in the present case. (10) There was no evidence of contributory negligence on the part of the plaintiff. She was not obliged to inspect the baggage, or anticipate an unusually violent lurch of the coach. She saw no displaced baggage until after the accident in question. Payne v. Stott, 181 S.W.2d 161; Prunty v. Allred, 165 P.2d 935; Rosenthal v. N.Y.N.H. H.R. Co., 88 Conn. 65. (11) It was proper to tell the jury they could infer the fact of negligence since the instruction merely permitted, but did not compel, such inference, and the jury were required to find negligence from all the evidence in the case. Phillibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797; Haarke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Thompson v. Kansas City Pub. Serv. Co., 232 Mo. App. 423, 122 S.W.2d 868. (12) Respondent's evidence did not show the specific negligence causing the violent lurch of the coach. LaVigne v. St. L. Pub. Serv. Co., 181 S.W.2d 541; Harding v. Kansas City Pub. Serv. Co., 188 S.W.2d 60; Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Belding v. St. L. Pub. Serv. Co., 205 S.W.2d 866. (13) The instruction did not purport to submit specific negligence. Hence, it is not open to the objections leveled against it. (14) Control of track, roadbed and train was admitted in answer. Hence, not in dispute, and it was not necessary to require finding of control. (15) Superior information on part of the defendant is a necessary incident of exclusive control, and the court takes judicial notice of it. (16) It was proper to tell the jury that the facts hypothesized would, if true, warrant a finding of negligence, unless they found to the contrary from other facts and circumstances in evidence. Defendant introduced evidence as to operation of train and maintenance of equipment. The jury were permitted, by the instruction, to absolve defendant. Moreover, they were required to base their verdict upon all the evidence in the case. Phillibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797; Haarke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Thompson v. Kansas City Pub. Serv. Co., 114 S.W.2d 145. (17) It cannot be said that plaintiff shifted the burden of proof to defendant since the jury were required to consider all the evidence, and Instruction 2 given for defendant informed them that the burden of proof continued and abided with the plaintiff throughout the entire trial. (18) Appellant cannot complain that verdict was excessive. The motion for new trial did not present this question. Stokes v. Wabash Ry. Co., 197 S.W.2d 304; Jones v. Penn. R. Co., 353 Mo. 163, 182 S.W.2d 157. (19) The appellate court considers only the evidence favorable to the plaintiff on the extent of damages, and takes into consideration the decreased purchasing power of money. Hampton v. Wabash R. Co., 204 S.W.2d 708. (20) A verdict will not be disturbed by the appellate court unless grossly excessive. Johnson v. Terminal Railroad Assn., 191 S.W.2d 676.
Plaintiff-respondent, Viola Welch, recovered judgment for $15,000 for personal injuries sustained while riding in a passenger coach in defendant-appellant's train. Plaintiff, in proving her case, relied on the inference of negligence permitted by the res ipsa loquitur doctrine.
Herein upon appeal defendant-appellant contends, (1) the petition failed to state a claim upon which relief could be granted; (2) the trial court erred in denying defendant's motion for a directed verdict; (3) the trial court erred in denying defendant's [82] request for a declaration of mistrial; (4) the trial court erred in refusing to allow defendant to amend the answer to conform to proof of contributory negligence; (5) the trial court erred in giving plaintiff's Instruction No. 1; and (6) the verdict was excessive.
[1] (1) Plaintiff, in paragraphs I and II of her petition alleged the trusteeship of defendant; his operation of the railroad properties as a common carrier of passengers; and his exclusive control of the train, the track, the roadbed upon which the train operated and of "the overhead baggage rack, and suitcase hereinafter referred to." Paragraphs III and IV of the petition are as follows,
". . . plaintiff was a passenger of the defendant, having paid the required transportation charge therefor, and was on one of the defendant's trains en route from Kansas City, Missouri to Jefferson City, Missouri. While plaintiff was riding in said train, and without any action of interference whatsoever on her part, a suitcase fell from an overhead baggage rack of the coach in which plaintiff was seated, and struck the plaintiff upon the head, causing her to sustain severe and permanent injuries . . .
"The fall of said suitcase, and plaintiff's injuries were directly caused by negligence on the part of the defendant in the maintenance, management, control and operation of the roadbed, track and train in which the plaintiff was riding, and the overhead baggage rack aforesaid."
The defendant did not move to make the petition more definite and certain. Defendant's attack herein upon the sufficiency of the petition is based upon the premise that "the petition was obviously intended to plead a res ipsa loquitur case." Defendant says a plaintiff must plead as well as prove the elements necessary to the application of the res ipsa loquitur doctrine. Defendant cites many cases where proof was lacking in showing one or more of the elements generally considered necessary to the application of the doctrine.
(The res ipsa loquitur doctrine can be invoked when "the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation." McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872. And, in general, the res ipsa loquitur doctrine does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possessed superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13.)
Defendant urges that, unless the petition is sufficient in stating "a res ipsa loquitur case," no claim is stated because the petition states but conclusions and tenders no issue of fact.
The petition does not allege specific negligence. It alleges the "fall of said suitcase, and plaintiff's injuries" were directly caused by negligence of defendant in the maintenance, management, control and operations of the roadbed, track and train, and the overhead baggage rack. The petition does not state any extraordinary circumstance, for instance, an "unusual and extraordinarily violent sidewise lurch" of the coach, which might indicate some negligent act or omission of defendant in the operation of the train or in the maintenance of rolling equipment or roadbed or tracks caused the suitcase to fall. Since plaintiff must have known that, in proving her case, she was going to rely on evidence of a violent lurch of the coach, we think she should have plainly stated the circumstance. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25. But we believe the petition was sufficient in stating general negligence. The allegation of negligence was an allegation of issuable ultimate fact, not a conclusion. Such ultimate fact may be inferred from supporting evidentiary facts. Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654. The doctrine of res ipsa loquitur does not dispense with the necessity that the plaintiff who charges negligence must prove it, but relates to a method of proof by which defendant's [83] negligence may be shown. Tayer v. York Ice Machinery Corporation, 342 Mo. 912, 119 S.W.2d 240; Belding v. St. Louis Public Service Co., Mo. App., 205 S.W.2d 866. The sufficiency of the petition to state a claim in negligence so as to support a judgment, at least after verdict, is to be determined independently of any question whether the doctrine applies as an evidentiary method in proving the claim. Zichler v. St. Louis Public Service Co., supra. And a general allegation of negligence is good unless it is attacked for want of being sufficiently definite. See concurring opinion of White, J., in Kramer v. Kansas City Power Light Co., 311 Mo. 369, 279 S.W. 43; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Zichler v. St. Louis Public Service Co., supra. The cases of Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; and Gibbs v. General Motors Corporation, 350 Mo. 431, 166 S.W.2d 575, cited by defendant, are not authority supporting defendant's contention a plaintiff's petition is insufficient to support a judgment in "a res ipsa loquitur case," where, as here, the petition should be considered sufficient, we believe, in alleging general negligence.
(2) and (5) The insufficiency of the evidence to make out a case was not particularly assigned as a ground for defendant's motion for a directed verdict; however, defendant, in the motion for a new trial, assigned errors in giving plaintiff's instructions based on the grounds stated by defendant's counsel at the time the instructions were offered. At that time defendant contended (and now again upon this appeal contends) error in giving plaintiff's main instruction, No. 1, on the ground (among others) the evidence was insufficient to "make a submissible res ipsa loquitur case."
In the afternoon of November 29, 1943, plaintiff-respondent, then forty-six years of age, a resident of Jefferson City, was a fare-paying passenger of defendant-appellant's train No. 6 en route from Kansas City to Jefferson City. Plaintiff testified, "the train was pretty crowded," and she stood in the aisle about midway of the coach for a little while, and as the train started moving out of Kansas City she sat down on her suitcase in the aisle for maybe thirty minutes; then, being invited by one of two soldiers who were seated in a seat on the left (north) side of the coach, she sat down in the seat occupied by them. She sat next to the aisle, and she and the soldiers continued to ride in the one seat until the train reached a point near Jefferson City. She had placed her own suitcase at her feet, and had not observed the luggage rack above her. She had "kind of dozed off" and, when the train was not much more than ten or fifteen minutes out, she wakened and was wondering if the train was approaching Jefferson City, "I had my purse in my lap, and all of a sudden . . . the train gave a very sudden and violent lurch and threw me just one way and then the other, and about at the same instant the suitcase fell from above and struck me on the head." Almost at the same time another suitcase in front of her fell into the aisle. The lurch threw the "passengers and everything against each other." It knocked her spectacles "off into my lap and knocked my purse onto the floor and my cosmetics all over the floor, and it seemed as if there was a general commotion. It must have knocked somebody down up in front. I saw some man looking as if he was knocked almost down onto the floor, and different people around me were trying to help me." One of the soldiers, who had been seated with plaintiff, told her the suitcase which had struck her belonged to him. He picked it up and put it back on the rack. The suitcase was "probably about two and a half feet long and a foot deep and maybe a foot and a half wide." Before she was struck she had not noticed anyone get up and "get any luggage down or put any luggage up." After she was struck she looked up at the rack and noticed there "was a lot of luggage piled on the rack, and a lot hanging over, outside of the rack, sticking out."
The luggage rack ran lengthwise of the coach; it was 18¼ to 18¾ inches in width and sloped about two inches from its outer edge down to where it joined [84] onto the coach wall. A rounded molding raised the outside edge of the rack three fourths of an inch to one and one-fourth inches above the rack's surface.
Defendant's witnesses testified they experienced no jerk or jar or lurch of the train No. 6 such as the lurch described by plaintiff. They testified the rolling equipment was in good condition; there was a good roadbed; no defect, such as a loose joint, in the track; and no such sudden setting or release of brakes as might cause a train to lurch. It was the duty of the trainmen to watch for and to properly replace baggage which passengers had improperly placed on baggage racks, but passengers retained custody of their own baggage. Passengers frequently got their baggage from the racks to "get what they want, and put it back."
In the case of Charlton v. Lovelace, supra, cited by defendant, there was an absence of proof of the attendant facts and circumstances of the occurrence resulting in the death of plaintiff's decedent, except the mere overturning of the boat. There was no showing whatsoever of the physical cause of the occurrence. There was no evidence introduced tending to show what made the boat turn over. In our case, the mere circumstance the suitcase fell from the overhead rack would be considered insufficient prima facie of defendant's negligence. Such a circumstance, in itself, could not be said to reasonably demonstrate plaintiff's injuries were the result of any negligence for which defendant should be held responsible. The circumstance alone does not reasonably exclude causes for which defendant might not, in any way, be responsible. Defendant was not in exclusive control of the luggage on the rack.
There was evidence, however, tending to show another circumstance — the extraordinarily violent lurch of the coach almost coincident with the falling of the suitcase from the rack. The violent movement of the coach, which coach was in the exclusive control of defendant, could be reasonably considered as the physical cause of the occurrence. A lurch so violent as described by plaintiff does not ordinarily occur absent some fault of the carrier; and the inference was permissible the violent movement was due to some negligent act or omission on the part of the carrier-defendant, a legal cause — through a direct sequence of causation — of the violent lurch, of the fall of the suitcase and of plaintiff's injury.
In the case of Prunty v. Allred, 73 Cal.App.2d 67, 165 P.2d 935, we see the res ipsa loquitur doctrine is held applicable where defendant is in the exclusive control of the instrumentality which causes an injury. We "do not forget that a defendant is sometimes held bound by the res ipsa loquitur doctrine, though not in control of all the instrumentalities involved in a casualty" (Kapros v. Pierce Oil Corporation, 324 Mo. 992, 25 S.W.2d 777), for example, in Belding v. St. Louis Public Service Co., supra, a vehicle other than defendant's bus was involved in the occurrence; and in Zichler v. St. Louis Public Service Co., supra, defendant's streetcar collided with a large truck owned and operated by another. In the Prunty case it was urged (as is urged herein) the doctrine of res ipsa loquitur did not apply because an overnight bag (which had fallen from the luggage rack of defendant's bus) was not in the exclusive control of defendant. There was evidence the overnight bag had fallen from the rack when the bus, having passed another vehicle, was "rather suddenly" coming back into its own lane. Said the court, "In this action the jury may have been justified in believing that it was the negligent operation or movement of the bus, which bus was admittedly under the exclusive control of defendant, that caused the accident and injury by `rather suddenly coming back into its own lane' and thereby causing the baggage to fall upon plaintiff . . ."
We believe the evidence was sufficient to warrant the submission of plaintiff's case to the jury.
As observed supra, defendant introduced evidence tending to negative any extraordinarily violent lurch, and tending [85] to negative any fault in the roadbed or track or train equipment, or in the operation of the train which might have caused the coach to violently lurch. This evidence tended to rebut plaintiff's testimony and the permissible inference of defendant's negligence based on plaintiff's testimony of the violent movement of the coach; but such evidence did not destroy the permissive probative substantiality of the inference of negligence nor did it affect the submissibility of plaintiff's case. Evans v. Missouri Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8.
Plaintiff's given Instruction No. 1 hypothesized an "unusual and extraordinarily violent sidewise lurch" of the coach; "that a suitcase was thereby directly caused to fall from an overhead baggage rack and strike the plaintiff on the head and injure her"; and the instruction continued in language identical with that of the form of instruction suggested in the case of Harke v. Haase, supra, 335 Mo. at page 1111, 75 S.W.2d at page 1004. Defendant contends the instruction is erroneous in telling the jury the facts so hypothesized, if found to be true, "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent." The instruction, defendant urges, erroneously injects a type of circumstantial evidence not inherent in a res ipsa loquitur case; and erroneously injects a fact inference into the instruction. We must try to remember the court in the Harke case, in suggesting the phraseology of a proper instruction in a res ipsa loquitur case, was intentionally avoiding any attempt to instruct as to technical rules of law. The court was suggesting the use of clear, simple, plain language advising a jury the issue of fact, "some negligence" of defendant, in the instruction submitted, "may be proven circumstantially"; and the phraseology of the suggested instruction has had the further and continued approval of judicial decision. Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797. See also Harding v. Kansas City Public Service Co., Mo. App., 188 S.W.2d 60; Jones v. Kansas City Public Service Co., 236 Mo. App. 794, 155 S.W.2d 775; Vesper v. Ashton, 233 Mo. App. 204, 118 S.W.2d 84; Thompson v. Kansas City Public Service Co., 232 Mo. App. 1124, 114 S.W.2d 145.
A contention is made that the instruction is erroneous in failing to require the finding the "allegedly injuring instrumentality" was under the control of defendant. Now the instruction hypothesizes the lurch of the coach in the train as the direct cause of plaintiff's injury, and defendant's answer admitted the plaintiff's allegations that defendant and plaintiff bore a carrier-passenger relation and that defendant was in exclusive control of the train.
Defendant further says the testimony of the violent movement of the coach was evidence of specific negligence and, consequently, the res ipsa loquitur submission was erroneous; and, it is said, considered as an instruction submitting specific negligence the instruction is erroneous in commenting on the evidence, in invading the province of the jury, in assuming negligence had been proved, in suggesting a line of reasoning to the jury, and in being argumentative. The circumstance of the "unusual and extraordinarily violent sidewise lurch," as we see it, may be reasonably inferred to have been a circumstance, a result, due to "some negligence," the proximate cause of plaintiff's injury, of which negligence the circumstance itself and the fact of the carrier-defendant's exclusive control of the train afford bases. The extraordinarily violent lurch "speaks" of some kind of negligence, but does not "spell out" the specific fault, Belding v. St. Louis Public Service Co., supra. And compare Jones v. Thompson, 353 Mo. 730, 184 S.W.2d 407; La Vigne v. St. Louis Public Service Co., Mo. Sup., 181 S.W.2d 541; Jones v. Kansas City Public Service Co., supra.
And defendant further contends the clause "unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to defendant's negligence" erroneously imposes [86] the burden of disproving negligence on defendant. The instruction is not subject to this criticism when read as a whole (Thompson v. Kansas City Public Service Co., supra); moreover, the jury were told by Instruction No. 2 that the burden of proof of negligence was on plaintiff, and so abided throughout the case.
(3) Plaintiff, being examined as a witness, was asked if she had ever had a surgical operation. She answered that she "had no surgical operation. I think what they have found . . . is when I must have had several stitches when one of my six children were born . . ." Of course, testimony of the number of a plaintiff's children (or the fact a plaintiff has children) is usually irrelevant, and the admission of such testimony has been disapproved by this court. Stephens v. Hannibal St. J.R. Co., 96 Mo. 207, 9 S.W. 589; Dayharsh v. Hannibal St. J.R. Co., 103 Mo. 570, 15 S.W. 554; Salmons v. St. Joseph G.I.R. Co., 271 Mo. 395, 197 S.W. 35. Ordinarily the only purpose such evidence could have would be to play upon the sympathy of the jury and thus enhance the amount of the jury's award. But see Kingsley v. Kansas City, 166 Mo. App. 544, 148 S.W. 170, where such testimony was said to have a direct bearing on a contested issue, and the admission of the testimony was held proper. In the instant case, the trial court did not "take the position it was deliberately done"; and the trial court invited defendant's counsel to object, promptly ordered the objectionable part of the answer to be stricken from the record, and directed the jury to disregard it. We believe the trial court did not err in refusing defendant's further request for a declaration of a mistrial. We should assume the jurors considered only legal evidence, and were not unmindful of their duty to obey the trial court's direction. We see no exceptional circumstances which would place the objectionable part of the answer without the rule that, ordinarily, the withdrawal and exclusion of erroneously admitted evidence leaves no ground for reversing the judgment on account of such admission. Salmons v. St. Joseph G.I.R. Co., supra; Stephens v. Hannibal St. J.R. Co., supra.
(4) At the conclusion of the evidence when the trial judge was examining the instructions proffered by the parties, defendant asked leave to amend the answer in accordance with the proof that plaintiff sat down in the seat without having observed the baggage rack above her or the baggage thereon. The Civil Code of Missouri contemplates liberal amendments to the end of a trial on the merits of the real issues of a cause. Gerber v. Schutte Inv. Co., supra. And it is provided that when issues, although not raised by the pleadings, are tried by express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised by the pleadings. Section 82, Civil Code of Missouri, Laws of Missouri, 1943, p. 378, sec. 847.82 Mo. R.S.A. However, we believe the trial court should not be held to have erred in refusing to permit the amendment. In the circumstances, we believe, the evidence plaintiff did not look did not justify the submission of the issue of contributory negligence. There is no evidence that, had plaintiff looked, she would have seen a bag so improperly placed on the rack as to constitute an apparent hazard to her in the ordinary movement of defendant's train; and plaintiff, in the exercise of due care for her own safety, was not obliged to anticipate and take precautions to protect herself from the hazard of falling luggage due to some negligence (unknown to her) of defendant-carrier resulting in an extraordinarily violent movement of the train.
(6) Of the defendant's contention of excessiveness of the amount of the award — the defendant did not raise the contention by assignment in the motion for a new trial. The contention not having been assigned in the motion for a new trial, the question of the excessiveness of the award is not before us. Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304. There was an assignment in the motion for a new trial [87] (which assignment is not now made herein) that the amount of the award "is so excessive as to show the bias, prejudice and passion of the jury." This assignment presented the question to the trial court whether the amount of the award was so much against the weight of the evidence as to show bias and prejudice on the part of the jury. Such an assignment is vitally different from that of excessiveness of the amount of an award. Stokes v. Wabash R. Co., supra. See also Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; and Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157. Nevertheless, having a regard for the spirit of Supreme Court Rule Number 3.27, we have examined the evidence relevant to the issue of the nature and extent of plaintiff's injuries.
When considered from the standpoint most favorable to plaintiff, the evidence shows plaintiff sustained a severe injury to the cervical spine. There was compression of the bodies of the first and second cervical vertebrae. The first four cervical vertebrae were thrust forward and rest forward of the shaft of the spine below; some of the intervertebral spaces are widened, some narrowed. The entire cervical spine is unduly straight. She wears a neck brace or "collar" part of the time. She should wear the neck brace to prevent her head from "slumping forward," unless and until a successful operation in spinal fusion is performed. Her brace is uncomfortable and makes her very nervous. Her injuries were, are, and will continue to be painful. Her injuries are permanent. Before her injury, she earned about $75 per month, in pay and tips, as a waitress; and she received additional income from her rooming house. She had always been a waitress. Her injuries have incapacitated her from service as a waitress; and her income from her rooming house has been materially reduced. At the time of trial her loss of earnings as a waitress, $75 per month since her injury, amounted to about $2700; and she then had a life expectancy of 21.63 years. Considering the nature of her injuries, her pain, her loss of earnings past and future, we cannot surely say the amount of the jury's award was excessive.
The judgment should be affirmed.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.