Cecil v. Wells

• Decision Date: 05 February 1924
• Docket Number: No. 18314.,18314.
• Citation: 259 S.W. 844,214 Mo. App. 193
• Parties: CECIL v. WELLS et al.
• Court: Missouri Court of Appeals

259 S.W. 844

214 Mo. App. 193

CECIL v. WELLS et al.

No. 18314.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Action by Lizzie Cecil against Rolla Wells, receiver of the United Railways Company of St. Louis, and another. Judgment for plaintiff, and defendants appeal. Affirmed.

T. E. Francis, Chas. W. Bates, Carter, Nortoni & Jones, all of St. Louis, for appellant Wells.

Watts, Gentry & Lee, of St. Louis, for appellant Big Bend Quarry Co.

N. Murry Edwards and Chas. E. Morrow, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by plaintiff while a passenger upon a street car operated by the defendant Rolla Wells as receiver of the United Railways Company of St. Louis, resulting from a collision between said car and a motor truck operated by a servant of the defendant Big Bend Quarry Company, alleged to have been occasioned by the negligence of said defendants. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $5,000 against both defendants, and both defendants have appealed to this court.

As to the defendant Rolla Wells, the petition is drawn so as to invoke the rule of res ipsa loquitur, averring that, while plaintiff was a passenger for hire upon the street car, operated by that defendant as a common carrier, defendant negligently caused and permitted the car to come into collision with the truck mentioned, whereby plaintiff sustained her injuries. As to the defendant Big Bend Quarry Company, specific acts of negligence are charged in respect to the operation of its truck; but it is unnecessary to set out these averments.

The evidence for plaintiff shows that early on the morning of January 12, 1921, plaintiff was a passenger upon a west-bound car operated by defendant Wells, on what is known as the Market street line of cars in the city of St. Louis, and was sitting en the south side of the car in the second or third seat from the front end thereof, and that she was injured by reason of a collision between this west-bound car and a motor truck of the defendant Big Bend Quarry Company, which was proceeding northeast on Clayton road, a public highway intersected by said street car tracks. At this place the defendant Rolla Wells maintains two parallel street car tracks, extending east and west along the south side of Forest Park and immediately adjacent thereto; the north track being for the operation of west-bound cars, and the south track for the operation of east-bound cars. Immediately south of these tracks lies Oakland avenue, a public street extending east and west. The car tracks are on a private right of way, and Clayton road, at the point of its intersection with said tracks, extends approximately from south-west to northeast, entering Forest Park.

Plaintiff did not see the approaching truck until immediately prior to the collision; but from the testimony of a witness in her behalf, who was on Clayton road about 100 feet from the point of the collision, it appears that when the truck was approximately 100 feet from the west-bound car track the street car was approximately 150 feet east of the crossing, at which time the motorman of the street car began to sound his gong, and that he continued to sound it until about the time of the collision, that the truck was proceeding at about 10 or 12 miles per hour, and continued to approach the car tracks, the driver thereof not looking straight ahead but toward some young ladies who were upon the lawn or campus of a school situated east of Clayton road and. just south of Oakland avenue, and that the motorman did not check the speed of the street car until it was near the crossing. The witness said:

"When the motorman seen that the automobile wasn't checking up he begun to slow down, and just at that time when he began to slow down they came together."

And he said that the truck struck the car at the rear corner of the front vestibule, just behind the sand box, that the car continued forward but a few feet after the collision, and that both vehicles, as he thought, were "going just about 8 or 10 miles an hour when they came together." On cross-examination he said that when the motorman began to check the speed of the car "it was pretty near to the corner—about 20 or 30 yards" from Clayton road.

The testimony in plaintiff's behalf further shows that as the collision was impending the motorman of the street car abandoned his post and ran toward the rear of the car; that the impact of the truck was very violent, tearing away certain portions of the car; that a piece of timber from the car struck plaintiff upon the head, and she was thrown from her seat, receiving severe injuries.

The driver of the truck of the defendant Big Bend Quarry Company was called as a witness for plaintiff, and testified that, though his view was unobstructed at this place, he did not see the street car until he was about 7 feet from it because "the light of the sun was shining on the windshield."

At the close of plaintiff's case each defendant offered a peremptory instruction in the nature of a demurrer to the evidence, and, these being refused, neither defendant proffered any testimony.

Such further reference to the facts and the proceedings below as may appear necessary will be made in the course of the opinion,

I. The defendant Big Bend Quarry Company makes no contention that its demurrer to the evidence should have been sustained. Defendant Wells, however, contends that the trial court erred in refusing to peremptorily direct a verdict for him. The argument in support of this assignment of negligence is, in brief, that though, as to this defendant, "the presumption of negligence involved in the doctrine res ipsa loquitur obtained, this presumption was rebutted and overcome by the evidence introduced on the part of plaintiff"; that the evidence adduced by plaintiff shows, as a matter of law, that the collision occurred through no fault of this defendant, but solely because of the negligence of the driver of the truck of the defendant Big Mud Quarry Company.

But it is quite clear that the demurrer of defendant Wells, as well as that of his codefendant, was well ruled. Defend ant Wells, as a common carrier, owed to plaintiff, a passenger, the duty to exercise the highest degree of care for her safety. Proof of the collision, and consequent injury to plaintiff, though it be a collision between this defendant's car, in which plaintiff was a passenger, and a vehicle not under the control of this defendant, gives rise to a presumption of negligence on the part of this defendant through the application of the rule of res ipsa loquitur, casting upon said defendant the duty of showing that the collision was due to some cause which the exercise of the highest degree of care on his part could not have avoided. See Stauffer v. Railroad, 243 Mo. 335, 147 S. W. 1032; Olsen v. Railway Co., 152 Mo. 426, 54 S. W. 470; Miller v. United Rys. Co., 155 Mo. App. 528, 134 S. W. 1045; Yates v. United Rys. Co. (Mo. App.) 222 S. W. 1034; Moran v. Kansas City Railways Co. (Mo. App.) 232 S. W. 1111. And in cases of this character, to which the res ipsa loquitur rule applies, a prima facie case thus made by the plaintiff cannot be repelled and utterly destroyed by oral proof tending to show due care on the part of the defendant. Whether the carrier has explained the happening of the casualty consistent with due care on its part remains a question for the jury. See Brown v. Railroad, 256 Mo. 522, 165 S. W. 1060: Anderson v. Kansas City Railways Co., 290 Mo. 1, 233. S. W. 203, and authorities there cited. Indeed, this defendant did not undertake to carry the burden of coming forward with evidence tending to explain the casualty consistent with due care on his part, no testimony being offered in his behalf. And it cannot be doubted that it was for the jury to determine whether the testimony in plaintiff's behalf and the inferences arising therefrom were such as to relieve this defendant from liability in the premises. Such was our holding in Gibson v. Wells and Big Bend Quarry Company, 258 S. W. 1, a case arising out of the same collision, recently decided and not as yet [officially] reported. In the opinion therein by Nipper, C., further authorities are collated supporting the views expressed above.

II. No instructions were given at plaintiff's request except one on the measure of damages. At the request of the defendant Big Bend Quarry Company, the court gave the following instruction:

"If the jury find from the evidence in this case that the driver of the motor truck mentioned in the evidence negligently failed to exercise ordinary care to avoid collision with the street car mentioned in the evidence; and thereby directly contributed to cause injury to plaintiff, then your verdict may be in favor of the plaintiff and against the defendant Big Bend Quarry Company; and, if you further find from the evidence that the motorman in charge of said street car on said occasion negligently failed to exercise the highest degree of care in the operation of said car, and thereby directly contributed to cause the collision referred to in the evidence, and such injury, if any, as plaintiff sustained, then you may also find against the defendant Rolla Wells, receiver of the United Railways Company of St. Louis."

Defendant Rolla Wells contends that the giving of this instruction constituted reversible error as to him—

"in that it authorizes a verdict against him and is so general in character as to permit the jury to roam without compass or chart and evolve any sort of a theory of negligence it Saw fit as to him, without regard to what the evidence tended to prove."

It is said that—

"Such instructions are always denounced as reversible error, even though the allegation (of the petition) be a general one, as in the instant case."...