Girratono v. Kansas City Public Service Co.

• Decision Date: 08 September 1952
• Docket Number: No. 42966,No. 2,42966,2
• Citation: 251 S.W.2d 59,363 Mo. 359
• Parties: GIRRATONO v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 59

251 S.W.2d 59

363 Mo. 359

GIRRATONO v. KANSAS CITY PUBLIC SERVICE CO.

No. 42966.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1952.

Charles L. Carr, Kansas City, Frank J. Rogers, Kansas City, for appellant.

Thomas E. Hudson, David T. Cavanaugh, Hudson, Whitcraft & Cavanaugh, Kansas City, for respondent.

BOHLING, Commissioner.

Tony Girratono recovered a judgment of $7,500 for personal injuries against the Kansas City Public Service Company, a corporation. The Kansas City Court of Appeals, upon defendant's appeal, reversed the judgment and remanded the cause for retrial, but being of opinion a conflict existed with respect to the propriety of remanding the cause for retrial with stated holdings of the St. Louis Court of Appeals ordered the cause transferred here for determination, Mo.Const. art. V, Sec. 10, V.A.M.S. Girratono v. Kansas City Public Service Co., Mo.App., 243 S.W.2d 539, 547. Defendant claims that plaintiff failed to make a case; that reversible error was committed in the giving of instructions, in overruling defendant's objections to prejudicial statements of plaintiff's counsel and in admitting certain evidence, and that the verdict is excessive.

The accident happened on January 1, 1948, between 3 and 4 p.m. Plaintiff was a passenger on defendant's Independence avenue (an east-west street) eastbound trolley bus and intended to transfer at Prospect avenue (a north-south street) in Kansas City, Missouri. The weather was cold. Snow and sleet had fallen the night before. The streets were slick. Snow had been scraped off the street and there was a snowbank along the curbing on Independence avenue. The snow had been piled about 3 feet or waist high and extended out into the street about 2 or 3 feet. Defendant's bus, upon signal, stopped at the usual place at the southwest corner of Independence and Prospect avenues for receiving and discharging passengers. Plaintiff and two other passengers alighted from the rear door of the bus. Plaintiff was back of the others, and all alighted safely from the bus. There was no path through the snow to the sidewalk at that point, but there was a path near the front of the bus at the street intersection in line with the sidewalk on Prospect avenue. There was a space of about 18 inches between the side of the bus and the snowbank for people to walk to the corner, a distance of about 25 feet. The two other passengers started walking toward the corner in the space along the side of the bus and had taken a few steps when the one nearest plaintiff noticed the bus move forward, speed up, and the rear end start skidding (he was of the impression the wheels were spinning) toward him. He shouted: 'Look out,' and jumped across the snowbank.

Plaintiff, who was a large man and standing within 6 to 8 inches of the side of the bus, testified that the accident happened so quickly he did not recall how long he had been off the bus, or whether he had started walking east; that the bus started forward, the wheels were spinning, and the right rear end of the bus skidded to the south, the portion back of the wheels striking him on his left side before he could extricate himself, knocking him down and injuring him. The bus continued forward after striking plaintiff, skidding further toward the curb, the right rear side striking a pole near the corner, and was brought to a stop after it crossed the street. The motorman returned to the scene.

Defendant contends its motion for a directed verdict and also its after trial motion to set aside the verdict and for judgment in accord with its motion for a directed verdict should have been sustained; that the submission of negligence in plaintiff's verdict directing instruction based on the fact that defendant's bus skidded is insufficient to sustain the verdict for plaintiff; and that, having abandoned other pleaded grounds of negligence, plaintiff cannot be heard on grounds of negligence not embraced in said instruction, and the judgment should be reversed outright. Defendant also contends that said instruction assumes certain facts.

We think the question of error in the giving of plaintiff's said instruction (No. I) may largely determine several of the other issues presented. We quote the instruction.

'The court instructs the jury that if you find and believe from the evidence that at the time and place referred to in evidence plaintiff was a fare-paying passenger on defendant's trolley bus on Independence avenue, and that when said bus reached the intersection of Independence and Prospect avenue the said bus stopped for the purpose of taking on and discharging passengers and that plaintiff exercising ordinary care for his own safety, if so, alighted from said bus at the rear door thereof near to and along side a large bank of snow, if you so find, and immediately thereafter, if so, before plaintiff reached a position of safety, if you so find, and when the operator of said bus saw or by the exercise of ordinary care should have seen that plaintiff had not yet reached a position of safety, if so, the operator carelessly and negligently started the bus forward in such manner as to cause it to skid upon the pavement, if you so find, and to strike and knock down the plaintiff, if so, and as a direct result of the negligence of the operator, as aforesaid, if you so find, the plaintiff was caused to be injured, if so, then your vedict shall be in favor of plaintiff and against the defendant.'

The negligence submitted to the jury by the instruction was whether 'the operator negligently started the bus forward in such manner as to cause it to skid upon the pavement and to strike and injure the plaintiff.' This submission under the authorities may not be sustained for two or more reasons; that is, because it is a submission of general negligence whereas plaintiff's petition contained charges of specific negligence, and because the mere skidding of a motor bus does not give rise to an inference of negligence.

Plaintiff charged in his petition (for convenience we number the allegations of negligence) 'that defendant was careless and negligent in the following particulars, towit: In failing to provide and allow plaintiff sufficient room and space along side and next to defendant's bus within which to safely alight therefrom; in failing to provide plaintiff with a reasonably safe place within which to alight and depart from said bus; in failing to allow plaintiff sufficient time to alight from said bus and reach a position of safety before starting said bus; in starting the bus forward immediately after plaintiff had alighted therefrom in such manner as to cause the bus to skid upon the pavement, over, upon and against the plaintiff; in operating the said bus in such manner as to endanger the safety of plaintiff and others upon the roadway; in failing to maintain a proper lookout ahead and laterally and to avoid injury to the plaintiff which by the exercise of the highest degree of care it should have done; as a result of which plaintiff was caused to be injured.'

The petition contains allegations of general and of specific negligence. In some of plaintiff's charges of negligence (charges , , and ) the particular act or omission constituting the negligence, as distinguished from the result of the particular act or omission, is alleged; that is, it is specifically alleged wherein defendant had been negligent; but, in others (charges and ), the charge merely states the result without specifying the negligent cause. See cases infra.

Harke v. Haase, 335 Mo. 1104, 1108, 75 S.W.2d 1001, 1003, was a res ipsa loquitur case. We said: 'It will be noted the plaintiff's only allegation of negligence is that defendant negligently 'operated an automobile in such a manner as to run onto the sidewalk.' This certainly does not charge specific negligence. It does not charge how defendant was negligent, as, for example, that he either carelessly or purposely drove too fast, or failed to keep a lookout, or drove on the wrong side of the street, or drove across the intersection when he did not have the right of way. It is indeed difficult to see how a more general charge of negligence could be stated. 'In such a manner' means no more than 'in some careless manner." And (loc. cit. 1004): 'In other words, in a res ipsa case the ultimate fact, some kind of negligence, is inferred without any evidential facts except the unusual occurrence itself; while in a specific negligence case there must be evidential facts sufficient to show some negligent acts or omissions which were the proximate cause of the occurrence.'

In Price v. Metropolitan St. R. Co., 220 Mo. 435, 443, 454(II, a), 119 S.W. 932, 933, 937(2, a), 942, 132 Am.St.Rep. 588, court en banc considered a charge in a passenger-carrier case that defendant 'carelessly and, negligently caused and permitted' its train to come in violent collision with another train to be a charge of general negligence; stating (220 Mo. loc. cit. 441, 455, 119 S.W. loc. cit. 937, 942) that certain language contra, used arguendo, in Davidson v. St. Louis Transit Co., 211 Mo. 320, 361, 362, 109 S.W. 583, 595, was not meant to hold a similar allegation charged specific negligence.

In Bergfeld v. Kansas City Rys. Co., 285 Mo. 654, 227 S.W. 106, 108, several earlier controlling cases were reviewed and quoted, and a charge that a collision between a train and a streetcar and plaintiff's injuries "were caused by the carelessness and negligence of the" defendant's employees "operating said streetcar" was held general. The court stated, 227 S.W. loc. cit. 109: 'In order to allege specific negligence, as said in the Price Case, there must not only be an averment as to the particular servants whose negligence is complained of, but it must also be pointed out wherein they, or either of them, have been negligent.' Bommer v. Stedelin, Mo.App., 237 S.W.2d 225, 228, also reviews cases holding quoted charges of...