Boresow v. Manzella, 47105
| Citation | 330 S.W.2d 827 |
| Decision Date | 14 December 1959 |
| Docket Number | No. 47105,No. 1,47105,1 |
| Parties | Abe BORESOW, Appellant, v. Thomas MANZELLA, d/b/a American Cab Company, Respondent |
| Court | United States State Supreme Court of Missouri |
Louis N. Pener, Bernard Eveloff, Thos. J. Conway, Jr., Thomas A. Sweeny, Kansas City, for appellant. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
John C. Russell, Donald E. Raymond, Kansas City, for respondent.
This is a personal injury case wherein plaintiff seeks to recover from defendant Thomas Manzella the sum of $25,000 as damages for injuries alleged to have been sustained through the negligence of the defendant. A trial resulted in a verdict for the defendant. Plaintiff appealed after his motion for new trial was overruled.
The only question presented for consideration is whether the trial court erred in giving instruction No. 5 referred to as a 'sole cause' instruction.
The evidence supports the following statement: Plaintiff was a taxicab driver for the Yellow Cab Company. On March 4, 1956, he was parked on Twelfth Street, headed east, in front of the Muehlebach Hotel in Kansas City, Missouri. While so parked, a cab, owned by the defendant and driven by John Tipton, ran into and collided with the rear of the cab occupied by plaintiff. Plaintiff testified that his cab was parked next to the curb; that he was waiting for a passenger; that while he was so waiting, his car was struck a violent blow. Plaintiff stated that as a result of the collision he sustained injuries to his head, neck, and back. Plaintiff, in his petition, did not allege any specific negligence. His case was submitted to the jury on general negligence.
Tipton, the driver of defendant's car, testified that he drove east on Twelfth Street and stopped next to the curb in front of the Muehlebach Hotel Coffee Shop. He stated the Yellow Cab was parked about 10 to 12 feet in front of him; that he let a passenger out at the Coffee Shop after which he started to pull away from the curb and intended to drive east on Twelfth Street. He further testified that as he was in the act of moving into the east traffic line, he noticed cars approaching from the west; he then turned his car back toward the curb and stepped on the brake pedal but found that he had no brakes. His evidence was that he reached for his emergency brake but could not stop in time to avoid contract with the Yellow Cab. He stated the brakes had been good prior to that moment. There was a sharp conflict in the evidence with reference to the force of the impact and also to the extent of plaintiff's injuries. For the purpose of this case, we shall assume that the collision was of sufficient force to cause plaintiff some injury. Tipton testified that after the collision he saw brake fluid under the front of his cab. Defendant called as witnesses officers of the Yellow Cab Company who were plaintiff's superiors. Mr. Charles Round, supervisor of the company, testified he investigated the collision; that he tested the brakes of Tipton's cab and found that they were completely out. He, too, noticed the brake fluid under the cab. There was other evidence tending to prove that brake fluid was on the pavement under the defendant's cab. A number of mechanics testified that brake fluid in cars of the kind driven by Tipton is contained in a master cylinder with lines extending to the brake drums. These witnesses further testified that if there is an opening or failure in the line which allows the fluid to escape, it is possible that the brakes will fail to operate within a few moments of having operated properly. One mechanic who examined the cab testified that the rubber head of the cup on the master cylinder permitted the fluid to escape; that there was a little particle under the head of the cup which caused it to be lifted providing an opening. He further testified that such a defect could not be discovered without disassembling the cylinder.
Defendant introduced evidence that the cabs used were inspected regularly; that the cab involved in this case was in good condition on the day in question prior to the collision.
The court gave the following instruction (No. 1) at plaintiff's request: 'The court instructs the jury that if you believe and find from the evidence that on the occasion mentioned in evidence plaintiff was sitting in a parked automobile facing in an easterly direction on 12th street in Kansas City, Missouri, and that the defendant's automobile was west of the parked car in which plaintiff was sitting, and was being operated in an easterly direction on 12th Street, Kansas City, Missouri, and that the operator of the defendant's automobile negligently and carelessly allowed it to run into and collide with the rear end of the parked car in which plaintiff was sitting if you so believe and find, and that as a direct result of such negligence, if any, on the part of the defendant, the plaintiff was injured, then and in that event the plaintiff is entitled to recover and your verdict must be in favor of plaintiff and against defendant.'
Instruction No. 5, complained of by plaintiff, reads: 'The Court instructs the jury that if you find and believe from the evidence that the sole cause of the accident was the sudden failure of the master brake cylinder on defendant's taxicab to function, and that such sudden failure of the master brake cylinder was not the result of any negligence on the part of the defendant, if you so find, and if you further find that said accident was not the result of negligence of defendant as set out in other instructions, then your verdict will be for the defendant and against the plaintiff.'
Plaintiff, in his brief, says that instruction No. 5 was faulty because it did not require a finding for the defendant on every reasonable ground of negligence; that it limited a finding to the issue of a brake failure; further, that the instruction removed from the jury's consideration negligence in failing to swerve, failing to keep a lookout, driving into the path of approaching traffic, and that the instruction did not cover the question of whether the defect in the braking system was discoverable.
Plaintiff, in the circumstances shown by the evidence, was entitled to rely, as he did, on general negligence, that is, the res ipsa loquitur doctrine. Plaintiff's evidence was sufficient to justify a jury to draw an inference of negligence on the part of defendant. The defendant had a right to show, as he did, that the collision was not caused by any negligence on his part. Jones v. Terminal R. Ass'n of St. Louis, Mo., 242 S.W.2d 473, loc. cit. 478, 479(11-13). The defense was that the collision was caused by the sudden failure of the foot brake. Defendant introduced evidence in support of that defense and also evidence tending to exclude any other cause.
Instruction No. 5 required a finding, before a verdict for defendant was authorized, that the sudden brake failure was the sole cause of the collision; further, that the collision was not the result of any negligence on the part of the defendant. The instruction did not specifically submit to the jury the question of whether Tipton was negligent in failing to keep a lookout and the other matters mentioned by plaintiff. But, the instruction did not, as plaintiff says, remove from the jury's consideration any failure on the part of the defendant which could have been considered to be negligence.
The cases cited by plaintiff may be distinguished. In the case of Dulley v. Berkley, Mo., 304 S.W.2d 878, the plaintiff offered evidence to support two acts of negligence. Plaintiff's husband, while working in a ditch, was killed by a cave-in of the dirt which had been piled alongside the ditch. Plaintiff offered evidence that the piled dirt was not shored and further that it was piled too near the excavation. One of the defendants who had dug the ditch and piled the dirt asked for, and the court gave, an instruction absolving him if the jury found that the cave-in was due solely to the failure to shore. This defendant had contended that it was not his duty to shore. This court held the instruction faulty because it ignored the alleged negligence of piling the dirt too near the excavation. That case does not support plaintiff's theory in this case.
In the case of Jones v. Terminal, supra, 242 S.W.2d loc. cit. 478, the instruction condemned therein (a...
To continue reading
Request your trial
-
Fellows v. Farmer
...that another vehicle was involved. State ex rel. and to Use of Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4, 5(6); Boresow v. Manzella, Mo., 330 S.W.2d 827, 832.3 Appelhans v. Goldman, Mo., 349 S.W.2d 204, 207(5, 6); Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539(4, 5); DeMoul......
- BancorpSouth Bank v. Hazelwood Logistics Ctr., LLC
-
Coit v. Bentz
...instruction here could not properly have constituted a submission under the res ipsa loquitur doctrine, as considered in Boresow v. Manzella, Mo., 330 S.W.2d 827, for plaintiff submitted specific negligence. And we note here that the following cases have held that the rear-end submission co......
-
Koogler v. Mound City Cab Co.
...was a sudden failure of the brake cylinder to function. Defendant's instruction follows the approved instruction in Boresow v. Manzella, Mo., 330 S.W.2d 827, 829[1-3]. See also Sollars v. Atchison, T. & S. F. R. Co., 239 Mo.App. 410, 187 S.W.2d 513, where the court remarked that many of the......