Eickmann v. St. Louis Public Service Co.

• Citation: 323 S.W.2d 802
• Decision Date: 13 April 1959
• Docket Number: No. 2,No. 46720,46720,2
• Parties: Edward V. EICKMANN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent
• Court: United States State Supreme Court of Missouri

Page 802

323 S.W.2d 802

Edward V. EICKMANN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 46720.

Supreme Court of Missouri, Division No. 2.

April 13, 1959.

Rehearing Denied May 11, 1959.

Sherman Landau, St. Louis, for appellant.

L. F. Stephens, St. Louis, for respondent.

STORCKMAN, Presiding Judge.

The plaintiff, Edward V. Eickmann, sued the defendant, St. Louis Public Service Company, a corporation, for damages in the sum of $35,000 resulting from injuries alleged to have been received by his wife while a passenger on a motorbus of the defendant. The verdict and judgment was in favor of the defendant and the plaintiff has appealed. The parties will be referred to as they were designated in the trial court.

The action was pleaded and submitted on the res ipsa loquitur doctrine. The plaintiff's evidence tended to show that Mrs. Eickmann was riding as a passenger on a west-bound Gravois bus in St. Louis on November 7, 1950; a freezing mist and rain had rendered the streets slippery. The motorbus upon which she was riding struck the rear of another bus of the defendant which was stopped at the Michigan street intersection; the force of the collision was sufficient to propel the standing bus a distance of 20 to 30 feet. Mrs. Eickmann testified she was thrown against and over the seat in front of her and injured; however, she was able to alight from the bus, take passage on a next bus to come along and to proceed to her home. Thereafter she received medical treatment. She filed suit for her own injuries, the trial of which was reviewed in this court. 363 Mo. 651, 253 S.W.2d 122. The husband's suit was filed June 22, 1955, and was tried in the Circuit Court of the City of St. Louis, beginning on October 2, 1957. Such other evidence as may be necessary will be referred to in the course of the opinion.

Plaintiff's first contention is that the trial court erred in refusing to give to the jury Instruction E which would have directed a verdict for the plaintiff on the issue of negligence. This instruction, offered by the plaintiff, is as follows:

'The court instructs the jury that the defendant, St. Louis Public Service Company, was guilty of negligence as a matter of law in so operating its buses as to cause and permit them to collide on the occasion shown in evidence, and if you find that Mrs. Maybelle Eickmann was injured by said collision, and that plaintiff sustained damage as a direct result thereof, then your verdict will be in favor of the plaintiff, Edward V. Eickmann, and against the defendant St. Louis Public Service Company, a corporation.'

No evidence was offered by the defendant to refute plaintiff's evidence that the bus on which she was riding collided with the rear of the other motorbus. In fact there was at least an implied acceptance by the defendant of the fact of a collision although there was some effort to minimize its violence. However, there was testimony in plaintiff's case that at the time of the accident the street was slippery due to moisture and freezing.

In support of his plea that a finding of negligence should have been directed, plaintiff cites Prosser on Torts, p. 212, Ch. 7, Sec. 43, and George Foltis, Inc., v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 462, 153 A.L.R. 1122. Both of these authorities recognize the general rule to be that res ipsa loquitur is a form of circumstantial evidence, creating an inference of negligence which ordinarily the jury will be permitted but not compelled to accept. While each recognizes there may be exceptional cases, neither furnishes authority for the direction of a finding of negligence in the circumstances of this case. The failure of the defendant to call witnesses to rebut plaintiff's prima facie case permits the drawing of an unfavorable inference but does not go the length of taking the issue of negligence from the jury. Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference, and the issue is for the jury even though the defendant has offered no evidence to explain or rebut plaintiff's prima facie case. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 17; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 102; Conser v. Atchison T. & S. F. Ry. Co., Mo., 266 S.W.2d 587, 590; Lerner v. Yeghishian, Mo.App. 271 S.W.2d 588, 529. The court did not err in refusing Instruction E.

Plaintiff's second contention relates to the admission of evidence of prior accidents involving Mrs. Eickmann. On direct examination Mrs. Eickmann testified she was thrown over the seat in front of her and 'I hurt practically my whole body, mostly on the left side'; that her neck, back, legs, knees, thighs, the left side of her stomach, and left breast were injured; that her hearing was impaired, and her left leg was shorter than the other; that she suffered from headaches, was very nervous, was cross and irritable, and in constant pain. On cross-examination she testified she struck her head, causing a swelling, but was not rendered unconscious, and that arthritis had developed. She further testified without objection on at least three occasions during cross-examination that she had complained that her 'whole body' was hurt.

Thereafter defendant asked her if portions of her body were injured in accidents on at least three other occasions before November 7, 1950, to which question objection was made on the ground that the defendant did not intend 'to demonstrate that any of the injuries from which Mrs. Eickmann now suffers had their origin in any previous accidents.' On being assured that it did intend to do so, the court permitted the interrogation to continue. The examination developed that she made claim in 1948 against the St. Louis Public Service Company for an injury to her left arm as a result of an accident. When asked about a claim against the same company in 1943, she testified her wrist was injured but said she 'didn't remember the dates.' She admitted that she filed suit in 1940 against a man named Russell W. Murphy for injuries, but testified that she received no injuries although the family automobile was badly damaged. Defendant's offer in evidence of the Circuit Court filed in the Murphy case was rejected.

Plaintiff's medical evidence tended to show that Mrs. Eickmann was afflicted with arthritis of traumatic origin, spondylitis of the lumbar and thoracic spine, scoliosis, arteriosclerosis, and a shortening of the left leg. Dr. Charles Kromer, plaintiff's principal medical witness, first treated her on March 3, 1956, and had her hospitalized on March 25, 1957, and again on April 11, 1957. He testified that he thought a 'major part of her present condition, symptoms and complaints, are due to her injury in 1950,' although he stated the 'finding and diagnosis of arteriosclerosis I think is entirely unrelated to her so-called accident.' This medical evidence did not serve to remove from the case Mrs. Eickmann's testimony that practically her whole body was injured in the 1950 accident, although the injuries were mostly on the left side. Plaintiff pleaded an injury to Mrs. Eickmann's left arm and her testimony, although indefinite in many respects, tended to support this allegation.

In a personal injury action the health and physical condition of the injured person prior and subsequent to the accident is material and any competent evidence tending to prove or disprove the nature and extent of the injuries alleged to have been received is admissible. Henderson v. Dolas, Mo., 217 S.W.2d 554, 560; Eickmann v. St. Louis Public Service Company, 363 Mo. 651, 253 S.W.2d 122, 125; 25 C.J.S. Damages Sec. 147, p. 796.

The plaintiff has cited cases in which the defendant undertook to prove that the plaintiff was a habitual claimant, which cases are not applicable to the present situation. Here the defendant undertook to show that the injuries claimed in the previous accidents were to the same or similar parts of the body claimed to have been injured in the 1950 accident. The 1948 and 1943 injuries were sufficiently related to the present claim to permit their consideration by the jury. Mrs. Eickmann denied that she received any injuries in the 1940 accident and the court excluded the defendant's offer of the files of her case based thereon.

Plaintiff further says that the defendant did not prove that the prior injuries were still in existence at the time of the 1950 injury. However, the prior injuries were not so remote as to preclude their continued existence especially in view of the nature of the injuries presently claimed. The defendant is aided by the presumption that a physical or mental condition shown to exist at one time continues until a change is shown. Canty v. Halpin, 294 Mo. 118, 242 S.W. 97, 102; Powell v. Travelers' Protective Association, 160 Mo.App. 571, 140 S.W. 939, 943; 31 C.J.S. Evidence Sec. 124 b, p. 739.

The evidence of prior injuries was brought out largely on cross-examination of plaintiff's witnesses and particularly Mrs. Eickmann. The law is well settled that the extent and scope of cross-examination in a civil action is discretionary with the trial court and its rulings in regard thereto will not be disturbed unless an abuse of discretion is clearly shown. Fisher v. Gunn, Mo., 270 S.W.2d 869, 876; Lonnecker v. Borris, Mo., 245 S.W.2d 53, 56.

The trial court adequately safeguarded the rights of the plaintiff and did not abuse its discretion with respect to the scope of the cross-examination or the use made of the evidence of prior injuries.

Plaintiff's counsel sought and obtained permission to inquire whether any member of the jury panel had an interest in or connection with the Transit Casualty Company. He was denied permission however to inquire whether any prospective juror owned stock in National City Lines, which he offered to show owned a substantial part of the capital stock of the defendant St....