Gibson v. Wells

• Citation: 258 S.W. 1
• Decision Date: 08 January 1924
• Docket Number: No. 18355.,18355.
• Parties: GIBSON v. WELLS et al.
• Court: Court of Appeal of Missouri (US)

258 S.W. 1

GIBSON v. WELLS et al.

No. 18355.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Rehearing Denied February 7, 1924.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

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

T. E. Francis, Charles W. Bates, and Carter, Norton & Jones, all of St. Louis, for appellant Rolla Wells, Receiver of United Rys. Co. of St. Louis.

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

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

NIPPER, C.

This is an action for damages sustained by plaintiff on the 12th day of January, 1921, while riding on one of defendant's street cars. The petition charges defendant Big Bend Quarry Company with specific negligence, and the defendant Rolla Wells, Receiver of the United Railways Company of St. Louis, with general negligence. Plaintiff recovered against both defendants.

On the date above mentioned, plaintiff was riding on one of defendant's west-bound street cars in the third seat from the front, and on the left or south side thereof. The street car was traveling over the right of way of the defendant, and on its west-bound track, going directly west. Alongside of this right of way, and immediately south of the eastbound track, is Oakland avenue. There is about 5 feet of space between the two street car tracks. At the point where this accident occurred, Clayton road crosses Oakland avenue and defendant's street car tracks in a southwest and northeast direction. Defendant Big Bend Quarry Company owned a five-ton truck, which was being operated over the Clayton road from the southwest to the northeast by its driver, Henry Bliss. When the truck was approaching' this crossing from the southwest, and about 100 feet away, the street car was about 150 feet east of this crossing, and traveling west. The driver of the automobile truck appears to have been interested in some object or objects east the Clayton road, and paid no attention to the approach of this street car, although could be seen for four blocks away to the east. The driver of the truck contended that the reflection of the sun's rays upon the windshield prevented him from seeing the street car's approach. The motorman began to ring the bell or gong of the street car and continued until the collision occurred, although this is denied by' one witness. The street car was traveling at the rate of about 18 miles an hour when it was 100 or 150 feet away from the point of collision. The street car had slowed down to about 6 or 8 miles an hour when it reached the intersection of Clayton road and the right of way of the street car company, or, as one, witness stated, the street car had practically stopped, and only traveled a distance of 3 or 4 feet after the collision. The driver of the truck did not slacken its speed at any time until it struck the front end of the street car. The motorman had put on the brakes and started to run back into the car when the collision occurred. Plaintiff did not see the truck until it was within 3 or feet of the street car.

It is unnecessary to refer to the injuries plaintiff sustained, because there is DO question made here as to the character or extent of her injuries or the amount of the verdict.

Neither of the defendants offered any testimony, but requested instructions in the nature of demurrers, which were overruled.

Plaintiff requested, and the court gave at her request, only one instruction, that being one on the measure of damages.

At the request of the defendant Big Bend Quarry Company, the court gave, among others, the following instruction, No. 3:

"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 referral 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, first, that his peremptory instruction directing a verdict for him should have been given, for even admitting that the doctrine res ipsa loquitur obtained due to the presumption of negligence arising in such cases, this resumption was rebutted and overcome, and that, when all the evidence was in, there eras no testimony showing any negligence on the part of the defendant Rolla Wells, receiver.

It will be noted that there was a collision between the street car and the motor truck at a crossing. Plaintiff was a passenger in the street car; the collision was brought about by no fault of hers; the happening was unusual, and does not ordinarily occur if the street car is properly operated and controlled.

The defendant Rolla Wells had no control over the motor truck, and, while it is settled that the doctrine of res ipso loquitur applies to collisions causing injuries to passengers when both cars or vehicles are under the control and management of the carrier, there is an apparent conflict in the authorities in other jurisdictions as to the applicability of the rule where but one of the vehicles was within the carrier's control. Chicago City R. Co. v. Rood, 163 Ill. 477, 45 N. E. 238, 54 Am. St. Rep. 478; Union Traction Co. v. Mann, 72 Ind. App. 50, 124 N. E. 510; Kurts v. Philadelphia Transit Co., 244 Pa. 179, 90 Atl. 525. The cases above cited seem to support the rule that the doctrine will not apply where both vehicles are not within the carrier's control.

In other jurisdictions, however, including Missouri, the fact that the other vehicle is not under the carrier's control does not prevent the application of the rule of res ipsa loquitur. See Stauffer v. Metropolitan St. R. Co., 243 Mo. 305, 147 S. W. 1032; Yates v. United Railways Co. (Mo. App.) 222 S. W. 1034; Moran v. Kansas City Rys. Co. (Mo. App.) 232 S. W. 1111; Osgood v. Los Angel Traction Co., 137 Cal. 280, 70 Pac. 169, 92 Am. St. Rep. 171; Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 6 S. W. 441, 9 Am. St. Rep. 309; Clark v. Chicago & A. R. Co., 127 Mo. 197, 29 S. W. 1013; Olsen v. Citizens' By. Co., 152 Mo. 426, 54 S. W. 470.

We think the law is also settled in this state that, in a case of passenger rid carrier, where the rule of res ipso loquitur may he invoked, plaintiff makes a prima facie case by showing the unusual occurrence, aid that the car is under the control of defendant, and the injury is without fault of plaintiff. Such prima facie case is made due to the above facts, aided by the presumption of negligence...