Burr v. Kansas City Public Service Co.
| Decision Date | 14 March 1955 |
| Docket Number | No. 43817,43817 |
| Citation | 365 Mo. 115,276 S.W.2d 120 |
| Parties | Metzetues BURR, Respondent, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, and Frank P. Ferlas, Defendants, Kansas City Public Service Company, Appellant. |
| Court | Missouri Supreme Court |
Charles L. Carr, Frank J. Rogers, Kansas City, for appellant.
David T. Cavanaugh, Thomas E. Hudson, Hudson & Cavanaugh, Kansas City, for respondent.
Action for damages for personal injuries sustained by plaintiff, a passenger on defendant Kansas City Public Service Company's bus, when the bus and a Dodge automobile, the latter operated by defendant Ferlas, collided head-on on Tenth street in Kansas City, Kansas, on October 13, 1949, about 9:40 p. m. Verdict and judgment were for plaintiff and against both defendants for $15,000. Defendant Kansas City Public Service Company has appealed and here contends (1) that the trial court erred in submitting the cause against said defendant under the res ipsa loquitur doctrine; (2) that instructions 1 and 2 are erroneous; and (3) that the verdict of the jury is excessive and so excessive as to show passion and prejudice against said defendant.
At the time of the collision in question plaintiff, a fare-paying passenger, was seated on the right-hand side of the bus in the second seat from the front and next to the aisle. The bus was southbound on Tenth street, a paved north-south street approximately 40 feet wide. The last stop of the bus prior to the collision was at Central avenue and the collision occurred about two blocks further south and before the bus reached Pacific avenue. Although the collision occurred in the State of Kansas, there is no reference in the briefs to any applicable Kansas statutes or court decisions.
Plaintiff, who was her sole witness as to the collision, testified that the bus was moving along in the normal fashion, downgrade, 'and then all at once there was a crash, and it pitched me forward and hit me on the bar across the seat * * * It (the bus) stopped after it hit whatever it was.' When plaintiff was thrown forward, her left shoulder hit the metal grip or bar on the end of the seat in front of her and she sustained an injury. Shortly after the collision, plaintiff went to the front of the bus and looked out. She saw that the bus had stopped 'right up against' an automobile. The bus operator had made no outcry and plaintiff had received no 'warning of any impending stopping of the bus.'
On cross-examination plaintiff said that, prior to the collision, she had seen nothing unusual about the way the bus was being operated; that the bus did not slow down prior to the collision; that the operator 'did not honk his horn'; that the bus was being operated 'right in the middle of the street'; that cars were parked on both sides of the street, but she did not notice how close the right-hand side of the bus was to the parked cars; and that, when she looked out of the front window, the bus was 'still in the middle of the street' and up against the Ferlas car, which was 'pretty well over on the right.' The front of the car 'was right up against the left-hand side of the bus * * * on the east.' The bus was turned slightly to the left or to the east into the automobile of Mr. Ferlas.
The day after the collision the bus company sent plaintiff a questionnaire, which she executed and returned to the company. As a part of her cross-examination the defendant offered the statement in evidence. Some of the questions and answers were:
In answer to the general question, 'How did the accident occur?' she wrote this statement,
The evidence on behalf of defendant Kansas City Public Service Company tended to show that the bus operator was driving the bus southward in the usual manner on its own or west side of Tenth street; that the Ferlas automobile, northbound, was being operated partly on the west or wrong side of Tenth street; that, while the automobile was some distance south of the bus, the operator saw the headlights of the automobile, indicating the automobile was being operated on the west or wrong side of the street; that the operator sounded his horn, flicked his lights, warned the passengers and stopped the bus within 18 to 24 inches of automobiles parked at the west curb; and that the automobile kept coming and, although there was space of 25 feet or more of clearance to the left of the bus for the automobile to pass on the east side of the street, the automobile collided with the bus. The left front headlight and corner of the bus and the left front of the automobile were damaged by the collision.
Defendant Ferlas, testifying in his own behalf, stated he was driving his automobile north on the east side of Tenth street at about 20 to 25 miles an hour. Upon approaching the place of collision, he was blinded by a bright spotlight or headlight shining in his rear view mirror and reflecting into his eyes and, for a few seconds, he was unable to see anything. He started to slow down, but drove a few feet while blinded, and came to a stop on the east or his right-hand side of the street. A couple of seconds later, after he had stopped, there was a collision and he was injured and dazed and did not recall anything further.
Plaintiff pleaded and submitted her cause under the res ipsa loquitur doctrine on the theory that her evidence showed her to be a fare-paying passenger upon the bus of a public carrier and that a collision occurred between the public carrier's bus and another vehicle and plaintiff was thrown forward against the seat in front of her and injured. Rothweiler v. St. Louis Public Service Co., 361 Mo. 259, 234 S.W.2d 552, 553; Powell v. St. Joseph Ry Lt., Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957, 958, and cases there cited. And see Annotations 25 A.L.R. 690; 83 A.L.R. 1163; 161 A.L.R. 1113.
Appellant first contends that the court erred in submitting the case under the res ipsa loquitur doctrine because there was no evidence of any unusual movement of the bus and because plaintiff, by her own testimony, showed the cause of the collision and specific negligence on the part of the defendant. Appellant says that plaintiff, by her own testimony, made a submissible case on specific negligence; and that her testimony shows that defendant negligently drove its bus across the center of the street and onto the left side thereof, and not as near the right-hand side as was practicable, and into collision with the automobile of defendant Ferlas. Appellant refers to plaintiff's testimony about the bus being operated in the middle of the street and about Ferlas' car being pretty well over on the right and against the left-hand side of the bus and about the bus being still in the center of the street and turned to the left after the collision had taken place. The rule relied upon is aptly stated in Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, 510, a case in which a bus and another vehicle sideswiped in meeting and passing, as follows: '* * * 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.'' Appellant relies particularly on Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825 and Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 559.
Whether the operation of a motor vehicle in the center, or to the left of the center, of the street was a negligent operation depended upon the detailed facts attending such operation. The fact that the bus may have been operated 'right in the middle of the street' did not show specific negligence in failing to operate the bus as near the right-hand side of the street as practicable, absent a showing that the condition of the street to the right of the bus was not occupied and was in such condition that it was in fact practicable to have operated the bus further to the right. No such showing was made by plaintiff. Plaintiff did not know how close the bus was being operated to the parked automobiles referred to. Plaintiff offered no evidence tending to show that the bus was not in fact being operated as near the right-hand side of the street as practicable. Plaintiff's testimony tends to show that she knew nothing about the location, or operation of the Ferlas automobile prior to the collision. Her testimony, as to where the automobile and the bus came to rest after the collision was complete, did not show specific negligence in the operation of the bus. The collision happened at night and plaintiff testified to no facts...
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