Belding v. St. Louis Public Service Co.

• Citation: 205 S.W.2d 866
• Decision Date: 18 November 1947
• Docket Number: No. 27258.,27258.
• Parties: BELDING v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Court of Appeal of Missouri (US)

205 S.W.2d 866

BELDING v. ST. LOUIS PUBLIC SERVICE CO.

No. 27258.

St. Louis Court of Appeals. Missouri.

November 18, 1947.

As Modified on Denial of Rehearing December 16, 1947.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Annie C. Belding against St. Louis Public Service Company for injuries by plaintiff while she was a passenger on bus owned and operated by defendant. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz, all of St. Louis, for appellant.

Oscar Habenicht, of St. Louis (Orville Richardson, of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Annie C. Belding, while she was a passenger on a bus owned and operated by defendant, St. Louis Public Service Company. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $7,500. Judgment was entered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper steps has caused the case to be transferred to this court for our review.

The time of the accident was around 7:30 o'clock on the morning of January 31, 1945. The bus was northbound on Kingshighway, one of the principal thoroughfares in the City of St. Louis; and the accident occurred a few feet north of the point where Magnolia Avenue enters Kingshighway from the west opposite Tower Grove Park.

When plaintiff boarded the bus there were no empty seats, and she at first stood in the aisle alongside the third seat from the front. As a matter of fact, the driver testified that he had a "standing load," and for such reason had not picked up any passengers "for quite a ways south on the highway." A witness for plaintiff, Mrs. Katherine Meuser, testified that people were packed in the bus to such an extent that she "stood by the bus driver in the front."

Plaintiff expected to transfer to another bus at Southwest Avenue, and as the bus approached the point of transfer, she started making her way through the aisle towards the exit door near the rear. After the bus crossed Arsenal Street it seemed to increase its speed; and while plaintiff was in the position indicated, there was a jerking and jarring as the bus was brought to a sudden stop, causing plaintiff to be thrown down upon the floor and to sustain the injuries for which she has brought this action.

Defendant's explanation of the occurrence was that a southbound automobile, traveling either on the center line of the street or else to the east of the center line, sideswiped the right side of a northbound automobile at a point about sixty feet ahead of the bus; and that in an attempt to escape the southbound automobile, which had veered towards the bus after colliding with the northbound automobile, the driver of the bus applied his brakes and swerved slightly to the right, but was unsuccessful in getting out of the path of the southbound automobile which struck the left front corner of the bus and then bounded back and came to a stop some three or four feet away from the bus.

The case was pleaded and submitted upon the theory of res ipsa loquitur, that is, that the bus suddenly and violently jerked, jarred, and jolted in an unusual and extraordinary manner as the direct result of the negligence of defendant, causing plaintiff to be thrown to the floor and injured.

Defendant has no criticism of the statement of plaintiff's claim in her petition, nor does it find any fault with the form of her instruction No. 1, which charged the jury that if they found the facts regarding the jerking, jarring, and jolting of the bus, then such facts were sufficient circumstantial evidence to warrant a finding that the occurrence was occasioned by some negligence of defendant, unless they found from other facts and circumstances in evidence that the occurrence was not due to the negligence of defendant.

But while voicing no objection to the form of instruction No. 1, defendant nevertheless complains of the court's action in giving it upon the ground that plaintiff's evidence, in the view defendant takes of it, had disclosed the specific negligence responsible for the accident, thus reducing the issue to the specific negligence shown and precluding plaintiff's right to have had her cause submitted upon the theory of res ipsa loquitur.

The controversy over this feature of the case is based upon certain testimony given by plaintiff herself, and by her witness, Mrs. Katherine Meuser, with reference to the application of the brakes.

It will be recalled that plaintiff, at the time of the accident, was attempting to make her way back through the crowded aisle to the exit door, and was facing towards the rear of the bus.

In attempting to relate what she had known of the accident from such disadvantageous position in the bus, plaintiff testified that "there was quite a commotion * * *, a jarring and a jerking," which caused her to be thrown down upon the floor. Asked what kind of a jerk it was, she replied, "It was a sudden application of the brakes." She also testified that "she could feel that," and that she heard a "squeaky noise" from the brakes, which "sounded like when a man drives a car and is going too fast and he pushes his hand over to stop it quick." Later she stated that "when they put on the brakes the jarring threw me to the floor."

Mrs. Katherine Meuser had stood immediately behind the bus driver facing towards the west, and she testified: "We were going along at a fairly good speed and I heard brakes and felt them, and I fell, and that was the story."

From such evidence defendant argues that plaintiff demonstrated the specific cause of the happening by clearly and definitely ascribing it to the application of the brakes, and thus denied herself the right to have had her case submitted upon the theory of res ipsa loquitur as employed in her instruction No. 1.

The doctrine of res ipsa loquitur is a rule of evidence peculiar to the law of negligence, which relieves the plaintiff, in a case to which the doctrine applies, of the necessity of specific proof of definite acts or omissions constituting negligence on the part of the defendant and proximately resulting in the plaintiff's injury. Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W. 2d 955. While it is a rule of circumstantial evidence, it does not rest for its application upon specific circumstances peculiar to the individual occurrence and pointing of their own force to a specific human fault, but in its strict and distinctive sense is based upon "the generic circumstances peculiar to the class of physical causes producing the occurrence" and pointing to no specific human fault. Kapros v. Pierce Oil Corporation, 324 Mo. 992, 1002, 25 S.W.2d 777, 781, 78 A.L.R. 722; Tayer v. York Ice Machinery Corporation, 342 Mo. 912, 119 S.W.2d 240; 38 Am.Jur., Negligence, sec. 297. It is a rule of law for the court, which attaches a definite probative value to the facts attending the occurrence in the light of common experience (Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829), and warrants the jury's finding of the ultimate fact of some kind of negligence from the fact of the unusual occurrence itself. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001.

In one sense the doctrine of res ipsa loquitur is a rule of necessity in that it is only to be invoked where the instrumentality producing the injury was in the exclusive control of the defendant, so that evidence regarding the true cause of the occurrence is practically accessible to the defendant, but inaccessible to the injured plaintiff. In other words, the doctrine presupposes that the plaintiff, from the nature of the occurrence, is unable to point out the particular act or omission responsible for his injury, and that the defendant has the superior knowledge or means of information as to the real cause of the accident. Gibbs v. General Motors Corporation, 350 Mo. 431, 166 S.W.2d 575.

It follows, therefore, that when the plaintiff, having pleaded a case of res ipsa loquitur, goes so far in his own evidence as to point out, and reveal his knowledge of, the specific act of negligence which was responsible for his injury, there is neither room nor necessity for the application of the doctrine. But on the other hand, even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, "the true cause is still left in doubt or is not clearly shown." Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Powell v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957; Glasco Electric Co. v. Union Electric Light & Power Co., supra; Williams v. St. Louis-San Francisco Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am.St.Rep. 588; 45 C.J. 1206-1207.

In the case at bar the reference in plaintiff's evidence to the sudden application of the brakes may not be said to have so clearly pointed out and identified any specific act of negligence on the part of defendant or its driver as to have constituted a waiver of plaintiff's right to rely upon the doctrine of res ipsa loquitur.

It is to be borne in mind that a case in which the plaintiff invokes the doctrine of res ipsa loquitur is no less a negligence action than one in which he charges specific negligence. In other words, the doctrine does not dispense with the necessity that the plaintiff who charges negligence must prove it, but relates only to the method by which the defendant...