Duncker v. St. Louis Public Service Co.

• Citation: 241 S.W.2d 64
• Decision Date: 19 June 1951
• Docket Number: No. 28115,28115
• Parties: DUNCKER. v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 64

241 S.W.2d 64

DUNCKER. v. ST. LOUIS PUBLIC SERVICE CO.

No. 28115.

St. Louis Court of Appeals, Missouri.

June 19, 1951.

George M. Hagee, Raymond F. McNally, Jr., St. Louis, for respondent.

HOUSER, Commissioner.

This is an action for personal injuries sustained by a passenger in a fall on a streetcar, based on a res ipsa loquitur assignment of negligence as follows: 'That on April 26, 1949, plaintiff boarded one of defendant's eastbound cars: * * * that after plaintiff had boarded said car and paid his fare, the defendant's agent and servant, scting within the course and scope of his employment, negligently caused, suffered and permitted said car unexpectedly to give a sudden, violent and unusual jerk, jolt, lurch and swaying motion, and that thereby and by reason of said negligence the plaintiff was thrown to the floor of said car and greatly injured.'

The jury awarded plaintiff $7,500 at the trial in circuit court. The public service company has appealed from the judgment entered on the verdict.

Defendant's first assignments of error relate to the giving of Instruction No. 1, offered by plaintiff.

Preliminary to a consideration of these assignments we notice plaintiff's contention that these errors are not reviewable under Supreme Court Rule 3.23 for the reason that they were not assigned as errors in defendant's motion for new trial. The applicable part of that motion complains of the giving of 'erroneous, misleading, illegal and prejudicial instructions asked by plaintiff, and erred in giving each and every instruction given on behalf of plaintiff, and in particular Instruction No. 1 offered on behalf of plaintiff because said instruction is inconsistent with and diametrically opposed to the evidence * * *.' Plaintiff says that defendant abandoned the specific reason set forth in the motion for new trial; is urging different reasons on appeal, and having made but one assignment of error as to Instruction No. 1 cannot now substitute new specifications of error never submitted to the trial court, citing Sterrett v. Metropolitan St. Ry. Co., 225 Mo. 99, 106, 123 S.W. 877, 879, and Newkirk v. City of Tipton, 234 No.App. 920, 136 S.W.2d 147. The contention is overruled. Coupled with the specific assignment of error there is a general charge of error applicable to all instructions given on behalf of plaintiff and think that is sufficient to justify consideration of the new claim of error, under the holdings in the cases cited.

Instruction No. 1, after hypothesizing the passenger-carrier relationship, the lurch or swaying motion and resultant injury, told the jury: '* * * then the presumption is, in the absence of evidence to the contrary, that such sudden, violent, and unusual lurch or swaying motion, if any, and the plaintiff's consequent injuries, if any, were due to the negligence of the defendant's agent or servant, and your verdict should be for the plaintiff and against the defendant * * * unless you further find from the evidence that such * * * motion was not due to the negligence of the defendant's servant or agent; and if you find from the evidence that plaintiff was injured as a direct result of such * * * motion of the streetcar, the burden would be on the defendant to show that the same happened without negligence on its part.'

Defendant argues that this instruction improperly shifts the burden of proof to defendant; that no legal presumption of negligence arises as a result of plaintiff having adduced evidence of an unusual occurrence; and asserts that the instruction erroneously states in the disjunctive that defendant caused the streetcar to give an unusual lurch or swaying motion, when there was no evidence upon which such disjunctive submission could be based, whereas plaintiff contends that a rebuttable presumption of negligence arises upon proof of the conventional requirements of a res ipsa loquitur case; that an instruction of this kind will not be condemned unless it tells the jury that the defendant must overcome the presumption of negligence or prove itself not negligent by the preponderance of the evidence; and that this particular instruction has been approved three times by this court in passenger-carrier cases.

Our conclusion is that Instruction No. 1 as given requires the reversal of this judgment under the doctrine of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Campbell v. Terminal R. R. Ass'n of St. Louis, 235 Mo.App. 56, 126 S.W.2d 915, for the reason that it shifted to defendant the burden of showing nonnegligence.

While for years the proof of a set of facts giving rise to a res ipsa loquiture presumption was held to shift the burden of proof to defendant, Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829, the leading case of McCloskey v. Koplar, supra, changed the law in this respect and held it to be reversible error to give an instruction that the presumption shifts the burden of proof to defendant to rebut the presumption by the preponderance of the evidence; that only the burden of going forward with the evidence shifts; that the burden of proof (the risk of nonpersuasion) rests with the plaintiff throughout the trial, except as to affirmative defenses. The nature of the presumption is that of a permissive inference, which the jury is obliged to weigh, Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, loc. cit. 90, and from which the jury may find negligence if the jury is so persuaded, but which the jury is not compelled to accept. Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, loc. cit. 82. The trial judge is bound to submit the case to the jury when the proof is sufficient to raise the inference, because the presumption 'abides to the end, taking the plaintiff's case to the jury even though the defendant has presented strong rebutting evidence.' Turner v. Missouri-Kansas-Texas R. Co., supra, 142 S.W.2d loc. cit. 460.

Plaintiff seeks to avoid the effect of McCloskey v. Koplar, supra, on these grounds: 1. that the erroneous instruction used the term 'burden of proof' [329 Mo. 527, 46 S.W.2d 563] whereas Instruction No. 1 used the term 'burden', but we think 'burden' as used therein imports that the burden placed on defendant is the burden of proof, and that it must have been so intended and understood. Clapper v. Lakin, 343 Mo. 710, 123 S.W.2d 27, 33. 2. that the erroneous instruction required defendant to rebut the presumption 'by preponderance of the evidence,' whereas Instruction No. 1 contains no particular standard or required degree of proof. This is inconsequential. The instruction in Campbell v. Terminal R. R. Ass'n of St. Louis, supra, in structure and connective language was substantially the same as Instruction No. 1. It contained no such requirement and yet was stricken down as violative of the doctrine of McCloskey v. Koplar. We adhere to that ruling. 3. that the McCloskey case was not a carrier and passenger case, but involved the relationship of theater and patron, and that the doctrine that the burden of proof shifts still obtains in carrier-passenger cases. In support of this theory plaintiff cites our decisions in Hartnett v. May Department Stores Co., 231 Mo.App. 1116, 85 S.W.2d 644, 648, and Campbell v. Terminal R. R. Ass'n of St. Louis, supra. It is true that in the former opinion we drew a distinction between carrier-passenger cases and 'ordinary res ipsa loquitur cases,' holding that in the former the presumption 'is not a mere inference such as may be drawn or not by the jury as they see fit, but is a rebuttable presumption of law' throwing upon defendant the burden of showing nonnegligence, failing in which the presumption of negligence becomes conclusive. The ruling in the Hartnett case, supra, although adverted to in the Campbell case, supra, was not followed in the Campbell case and 'is not supported by the McCloskey case or later decisions' of the Supreme Court, Duncan v. St. Louis Public Service Co., 355 Mo. 733, 197 S.W.2d 964, loc. cit. 966, and is hereby specifically overruled.

Therefore, following the later decisions of the Supreme Court, and our own original view as expressed in Duggan v. St. Louis Public Service Co., Mo.App., 56 S.W.2d 626, we reassert that the inference raised upon a res ipsa loquitur showing in a carrier-passenger case is a permissive inference only; that the burden of proof remains at all times with plaintiff to establish defendant's neglignece; and that the burden of proof to show nonnegligence never shifts to defendant.

Plaintiff contends that Instruction No. 1 is a virtually verbatim copy of the main instruction specifically approved by this court in Crenshaw v. St. Louis Public Service Co., Mo.App., 52 S.W.2d 1035. In that case a distinction was drawn between the main instructions therein and in the McCloskey case, supra, and it was decided that the Crenshaw main instruction of which Instruction No. 1 is a copy did not offend against the ruling laid down in the McCloskey case. The Crenshaw case is directly in point and sustains plaintiff's view but in the light of the later decisions it is plain that the Crenshaw case is contrary to the law as it now exists, and it is our duty to overrule it.

The second assault upon Instruction No. 1 is based upon the use therein of the word 'lurch'; that while there is evidence of 'swaying' there is no evidence of a 'lurch' of the streetcar and that it was therefore error to submit 'lurch or swaying motion' disjunctively in the instruction. In case of a retrial of the issues this point may present itself again, and therefore we will pass on this assignment. There is evidence of 'swaying', 'swaying motion' and of 'definite violent movement from side to side.' While the word 'lurch' was not used by any witness...