Carter v. Liberty Equipment Co., Inc., WD

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Citation: 611 S.W.2d 311
• Parties: William P. CARTER, Respondent, v. LIBERTY EQUIPMENT CO., INC., Appellant. 30910.
• Court: Missouri Court of Appeals

Page 311

611 S.W.2d 311

William P. CARTER, Respondent, v. LIBERTY EQUIPMENT CO., INC., Appellant.

No. WD 30910.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

Motion for Rehearing and/or Transfer Denied Feb. 2, 1981.

Application to Transfer Denied March 9, 1981.

Thomas W. Wagstaff and Benjamin F. Mann, Kansas City, for appellant.

Joseph W. Amick, Kansas City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

Respondent, William P. Carter, recovered judgment in this action for injuries he received when an air compressor towed by the vehicle of Liberty Equipment Co., Inc. became detached from the truck and collided with a store building striking Carter inside the building. Liberty appeals contending error in the instructions and submission of the case.

The pertinent facts are not here and were not at trial the subject of any significant dispute. The accident occurred in Kansas City during daylight hours on August 16, 1972. Liberty's truck was northbound on Broadway towing an air compressor. At a point near a store building on the west side of the street where Carter was at work, the device by which the trailer and air compressor were attached to the truck disengaged the trailer crossed the street diagonally and crashed through the window, entered the store and struck Carter. The nature of Carter's injuries and their origin in this accident are not here at issue and need not be discussed.

The trailer hitch by which the mobile compressor was attached to the truck was recently installed, but it had performed without incident prior to the accident and had served during transport of the machine from Cole Camp to Kansas City, a distance of some one hundred miles. After the accident, the hitch was examined and found to be in proper working order and apparently free of any defect. No evidence offered any explanation as to the cause of the mishap and why the trailer had separated from the towing vehicle.

Carter's petition alleged, first, that the Liberty employees, the driver of the truck and a passenger, were negligent in permitting the air compressor and trailer to collide with the storefront. No particulars of specific acts or omissions claimed to have been negligent were described. Second, the petition charged general negligence attributable to the event itself which would not have occurred but for the negligence of Liberty. Included were allegations that the instrumentality, the truck and compressor, were under the control of Liberty and that the cause of the accident was more readily ascertainable by Liberty because of its superior knowledge. No challenge to the sufficiency of the petition allegations was made and the case has proceeded on the assumption that a satisfactory pleading asserted a cause of action for both general and specific negligence.

In the course of trial, some evidence was elicited as a part of plaintiff's case touching on the use of safety chains in conjunction with trailer hitches. The substance of the evidence was that safety chains function to guard against detachment of trailers upon failure of the hitch but that no safety chain had been installed on the Liberty vehicle. No expert witnesses were called and no evidence described the frequency or conditions for use of safety chains or any standards governing their use. Also absent was any evidence from which the effectiveness of a safety chain in preventing the subject accident could have been forecast. The evidence did leave open for speculation the effect which prior installation of a safety chain may have had on restraint of the compressor trailer and Carter's attorney commented on the subject in closing argument.

The case was submitted to the jury on general negligence under instruction applicable to the doctrine of res ipsa loquitur. Liberty argues, as its first point on appeal, that Carter was not entitled to this submission because Carter's evidence identified the cause of the accident to have been the absence of a safety chain. They contend that a plaintiff is precluded from recourse to the presumption or inference which the res ipsa rule affords when plaintiff's own evidence establishes the cause of the accident and, thus, removes that element of the case from the area of conjecture.

Interrelated with the first point are Liberty's associated contentions that although Carter's evidence did establish the accident cause, he made no proof that any standard made prudent the use of safety chains on trailers and he therefore made no submissible case on the negligence of Liberty or its employees in operating the vehicles without safety chains. Thus, in Liberty's view of the case, Carter could not employ a theory of recovery on general negligence because the precise cause of the accident was shown and a specific negligence submission was unavailable because Carter's evidence did not link the accident cause with Liberty's negligence.

A similar argument was advanced in McDowell v. Southwestern Bell Telephone Co., 546 S.W.2d 160 (Mo.App.1976), where plaintiff suffered a hearing loss when a loud noise was emitting by a telephone receiver. Citing Stevens v. Missouri Pacific Railroad Company, 355 S.W.2d 122 (Mo.1962), the court observes that a plaintiff may show the accident cause by his evidence but still not be deprived of the res ipsa doctrine if, after all of plaintiff's evidence is in, the true cause of the casualty is still left in doubt or is not clearly shown. "Submission under the res ipsa loquitur doctrine may not be denied unless specific negligence, the real or precise cause is definitely shown by direct evidence." Stevens v. Missouri Pacific Railroad Company, supra at 130. We must therefore determine whether the evidence as to the safety chain in this case meets the standard of accident causation as proof of specific negligence.

Liberty's argument that Carter's evidence identified the true cause of the accident to have been the absence of a safety chain fails on at least two grounds. The validity of the contention depends on the assumption that a properly installed safety chain would have restrained the movement of the compressor when it became detached by separation of the hitch. There is, however, no evidence in this record to support such an assumption. Quite apparently, the size, strength and attachment of safety chains affects the function of the chain in restraining a disconnected trailer, as does the weight and size of the object being trailed. So, too, is the vehicle speed and ground terrain of importance in forecasting what would occur when a trailer hitch fails and control of the trailed object depends on the chain.

The record here is barren of any facts indicating the properties of safety chains or whether a chain adequate to control the Liberty compressor and trailer was available, much less in general use. The effect of a safety chain, had one been installed on the Liberty vehicle, is therefore a matter of pure speculation and conjecture. This falls far short of a definite showing by direct evidence that lack of a safety chain was the precise cause of the accident and, under the authorities cited, does not operate to deprive Carter of the res ipsa submission.

The second fallacy in Liberty's argument is that the true cause of the accident was not the lack of a safety chain, but the disengagement of the trailer hitch. No contention has been made that attachment of a safety chain would have affected operation of the hitch, only that the trailer would have remained attached by the chain once the hitch had separated. While it may well be argued that upon separation of the hitch, a chain would have restrained the trailer, assuming a factual basis establishing that a safety chain would have so performed here, the chain actually had no greater relevance to the true and precise cause of the accident than did the route of travel selected by the driver or his choice of a time to traverse Broadway when Carter was in the front area of the store. These are merely peripheral circumstances which themselves would have had no operative force but for the disconnection of the hitch.

In general, the doctrine of res ipsa loquitur is available to aid a plaintiff when (a) the occurrence resulting in the injury does not ordinarily happen when those in charge use due care, (b) the instrumentality was under the control of the defendant, and (c) the defendant possesses superior means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557 (banc 1932); McDowell v. Southwestern Bell Telephone Co., supra.

The thrust of Carter's claim is that the collision of the trailer with the building gives rise to an inference of negligence on the part of Liberty because the event speaks for itself. A trailer does not become detached while moving, under normal circumstances, if those in charge use due care. Thus,...