Gallagher v. St. Louis Pub. Serv. Co., 30323.

• Decision Date: 20 April 1933
• Docket Number: No. 30323.,30323.
• Citation: 59 S.W.2d 619
• Parties: JAMES GALLAGHER v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

59 S.W.2d 619

JAMES GALLAGHER v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 30323.

Supreme Court of Missouri.

Division One, April 20, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.

REVERSED.

T.E. Francis, B.G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) Since plaintiff had alighted from the street car in safety, on the public street, at the end of his journey, and had moved away from the place of his landing, the relation of passenger and carrier had terminated. He was not a passenger while subsequently passing behind the rear end of the car in order to cross the street. Lacks v. Wells, 44 S.W. (2d) 154; Jacobsen v. Street Rys. Co., 109 Neb. 356, 191 N.W. 327, 31 A.L.R. 566; La Fond v. Detroit Citizens St. Ry. Co., 131 Mich. 586, 92 N.W. 99; Ruddy v. Ingelret, 204 N.W. 630, 44 A.L.R. 159; Feldman v. Chicago Rys. Co., 289 Ill. 25, 124 N.E. 334, 6 A.L.R. 1291; Chesley v. Railroad Co., 188 Iowa, 1004, 176 N.W. 961, 12 A.L.R. 1366; Railroad Co. v. Boddy, 105 Tenn. 666, 58 S.W. 646, 51 L.R.A. 885; Hammett v. Birmingham R.L. & P. Co., 202 Ala. 520, 81 So. 22; Morris v. St. Railroad Co., 193 Iowa, 616, 187 N.W. 510; Creamer v. St. Rys. Co., 156 Mass. 320, 31 N.E. 391, 16 L.R.A. 490; Power v. Conn. Co., 82 Conn. 665, 74 Atl. 931, 26 L.R.A. (N.S.) 405; Conroy v. Railroad Co., 188 Mass. 411, 74 N.E. 672; Poland v. U. Trac. Co., 107 App. Div. 561, 95 N.Y. Supp. 498; 10 C.J. pp. 627, 628, sec. 1049; 4 R.C.L. p. 1047, sec. 498. (a) The case is not one within the res ipsa loquitur rule. No presumption of negligence on the part of the defendant Receiver can arise from the fact that plaintiff was injured under the circumstances shown by his evidence, i.e., that in passing behind the car he stepped upon something in the nature of a wire rope or chain which had in some manner become attached to or caught by the car, and was caused to fall when this thing was pulled by the car as it started forward; there being a total lack of evidence from which it could even be inferred that the thing which caused plaintiff's fall was any part of or in any way connected with the means or appliances of transportation, or that said defendant was in anywise responsible for its presence. Woas v. Transit Co., 198 Mo. 673; Pointer v. Mt. Ry. Const. Co., 269 Mo. 120; McGrath v. Transit Co., 197 Mo. 104; La Fond v. St. Ry. Co., 131 Mich. 586, 92 N.W. 99; Fleming v. Railroad Co., 158 Pa. 130, 22 L.R.A. 351; Benedict v. Potts, 88 Md. 56. 40 Atl. 1067; Perkins v. Bay State St. Ry., 223 Mass. 235, 111 N.E. 717; Farley v. Traction Co., 132 Pa. 58, 18 Atl. 1090; Wilbur v. Rhode Island Co., 27 R. I. 205, 61 Atl. 601; Gulf Railroad Co. v. Davis, 161 S.W. 932; Thomas v. Ry. Co., 193 Mass. 438, 79 N.E. 749; 10 C.J. p. 1028, sec. 1427; 5 R.C.L. pp. 74-77, sec. 713; 5 R.C.L. pp. 81-84, sec. 716. (b) The res ipsa loquitur rule is of limited and restricted scope, and is applied only in those exceptional cases where the peculiar facts and circumstances bring the case clearly within the reason for the rule. 45 C.J. p. 1200, sec. 771; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; Meade v. Mo. Water & Steam Supply Co., 300 S.W. 518; Byers v. Investment Co., 281 Mo. 375; Removich v. Construction Co., 264 Mo. 43; Riggsby v. Tritton, 129 S.E. 493, 45 A.L.R. 280. (c) In order for the doctrine to be applicable, it must appear that the instrumentality causing the injury was under the exclusive management and control of the defendant, and that the circumstances of the accident were of such unusual or special character as, in their very nature, to carry with them a strong, inherent imputation or probability of negligence, warranting the presumption that, in the light of ordinary experience, such an accident would not occur if the party having such management and control exercised due care. 45 C.J. pp. 1204-1208, sec. 772; pp. 1210, 1211, sec. 778; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; McGrath v. Transit Co., 197 Mo. 97; Byers v. Investment Co., 281 Mo. 375; Henderson v. Railroad Co., 194 N.Y. 205, 19 L.R.A. (N.S.) 790; Riggsby v. Tritton, 129 S.E. 493, 45 A.L.R. 280. (d) The res ipsa rule cannot be invoked where the facts connected with the occurrence, as a whole, fail to point to the negligence of the defendant as the proximate cause of the accident, but show upon their face that it may as reasonably and consistently be inferred therefrom that the accident was due to a cause for which the defendant would not be liable. 45 C.J. p. 1213, sec. 780; McGrath v. Transit Co., 197 Mo. 97; Moriarty v. Schwarzschild & Sulzberger Co., 132 Mo. App. 650; McGowan v. Nelson, 36 Mont. 67; Peters v. Light & Traction Co., 108 Va. 333, 22 L.R.A. (N.S.) 1188; Norfolk, etc., Co. v. Poole, 100 Va. 148; Riggsby v. Tritton, 129 S.E. 493, 45 A.L.R. 280. And in the instant case the evidence did not bespeak negligence on the part of the defendant Receiver, but made it far more probable that the accident arose from a cause for which the Receiver was not responsible; that the "thing" which plaintiff said was "dangling" from the lower part of the car became and was attached thereto or caught thereby without said defendant's knowledge, and without any negligent act or omission on his part. (e) Nor may the rule be invoked where, as here, the existence of negligence is wholly a matter of conjecture, and the facts necessary to be shown as a basis for the application of the rule are not proved, but must themselves be presumed or conjectured. 45 C.J. p. 1211, sec. 778; Benedict v. Potts, 88 Md. 52; Gulf Railroad Co. v. Davis, 161 S.W. 932; Wilbur v. Rhode Island Co., 27 R.I. 205; Thomas v. Ry. Co., 193 Mass. 438. (f) Furthermore, the res ipsa loquitur rule is not applicable unless it is made to appear that the defendant had such management and control of the offending instrumentality as to warrant the presumption or inference that he has superior knowledge or means of information as to the cause of the accident, so that the cause may be said to rest peculiarly within his knowledge. And in the instant case it was not shown that the defendant Receiver had any such management and control of the "thing" that caused the accident, or had any knowledge of its existence or of the cause of the accident, but, on the contrary, it appears that it was the plaintiff alone who had any knowledge concerning these matters. 45 C.J. p. 1205, sec. 773; Meade v. Mo. Water & Steam Supply Co., 300 S.W. 515; Byers v. Investment Co., 281 Mo. 375; Pronnecke v. Westliche Post Pub. Co., 291 S.W. 139; Riggsby v. Tritton, 129 S.E. 493, 45 A.L.R. 286. (g) Since there is no evidence from which it may be inferred that the wire, rope, chain or "similar thing," said to have been dragging behind the car, constituted any part of the Receiver's equipment or instrumentalities, and no evidence at all that the Receiver or his servants placed it there, but, on the contrary, the evidence is such as to raise a very strong inference that the same had been caught or picked up from the street by the car while in motion, or otherwise became attached to the car through some agency beyond the control of said defendant, in order to make a prima facie case it was incumbent upon plaintiff to prove that the Receiver's agents and servants in charge of the car knew of the presence thereof, or that the same had been attached to or caught by the car for such length of time as to have enabled them to discover it by the exercise of ordinary care, and thus charge them with constructive knowledge of its presence. And there was not a scintilla of evidence to charge the Receiver or his agents and servants with either actual or constructive knowledge of the presence of such object. La Fond v. St. Ry. Co., 131 Mich. 586, 92 N.W. 99; McCaffrey v. St. Ry. Co., 47 Hun, 404. Since plaintiff's evidence fails to show with any degree of certainty that a cause for which the defendant could be liable produced the injury, but leaves the matter to pure speculation, plaintiff's case must fail. Warner v. Railway Co., 178 Mo. 133; Hamilton v. Railway Co., 318 Mo. 135. A verdict cannot rest upon mere speculation, conjecture or surmise, or be arrived at by piling up successive inferences having no rational foundation in the facts shown in evidence. Layton v. Chinberg, 282 S.W. 434; State ex rel. v. Cox, 298 Mo. 427; Cardinale v. Kemp, 309 Mo. 241; Swearingen v. Railway, 221 Mo. 644. (2) The giving of plaintiff's Instruction 1 was prejudicial error. (a) There was no evidence to support the instruction, which erroneously proceeds upon the theory that the facts therein hypothesized sufficed to raise a presumption or inference of negligence on the part of the defendant under the res ipsa loquitur rule, which, under the evidence, had no application. (Authorities cited under Point 1, supra.) (b) And if it be assumed that the case was submissible otherwise than under the res ipsa loquitur rule (which we deny) this instruction is fatally erroneous in that it purports to cover the case and directs a verdict, but omits to require the jury to find an essential element of plaintiff's case, namely, that the defendant receiver, or his agents and servants in charge of said car, knew, or by the exercise of ordinary care could have known of the presence of the wire, rope or chain or "similar thing" said to have been dangling from the rear end of the car, in time to avoid the accident. And where an essential element of the plaintiff's case is omitted from his instruction, the error is not cured by the giving of proper instructions for the defendant. Hall v. Coke & Coal Co., 260 Mo. 351; Heigold v. United Rys. Co., 308 Mo. 157; Schubert v. American Press, 323 Mo. 306; Bellows v. Ins. Co., 203 S.W. 985; State ex rel. v. Ellison, 272 Mo. 571. (3) The verdict is excessive. Bragg v. Met. St. Ry. Co., 192 Mo. 331; Gaty v. United Rys. Co., 286 Mo. 503.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Plaintiff...