Grace v. St. Louis Public Service Co.

• Decision Date: 19 January 1954
• Docket Number: No. 28708,28708
• Citation: 263 S.W.2d 866
• Parties: GRACE v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 866

263 S.W.2d 866

GRACE v. ST. LOUIS PUBLIC SERVICE CO.

No. 28708.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1954.

Rehearing Denied Feb. 12, 1954.

Salkey & Jones, Carroll J. Donohue, Morton M. Hartz, F. Daley Abels, St. Louis, for appellant.

Inman, Dyer, Gray & Dreher, Charles E. Gray, Byron A. Roche, St. Louis, for respondent.

HOUSER, Commissioner.

Personal injuries action by Lorraine Grace against St. Louis Public Service Company. A trial jury returned a verdict for plaintiff for $6,250. From the judgment rendered upon the verdict defendant has appealed.

Plaintiff's petition, after setting up the passenger-carrier relationship, alleged that defendant negligently caused or permitted its motorbus, 'while in motion, to suddenly check its speed with an extraordinary, sudden, unusual and violent force, whereby plaintiff was caused to be thrown,' etc. The cause was submitted under the doctrine of res ipsa loquitur.

On February 13, 1950 plaintiff was a passenger upon defendant's bus which was southbound on Kingshighway in the City of St. Louis. The bus stopped at a regular loading zone at Easton Avenue. As the bus pulled away from the curb and after it had gone a distance variously estimated at from ten feet to 'approximately a block,' the bus came to a sudden stop, as a result of which plaintiff was thrown forward and backward and injured.

Defendant contends that it was error to submit the case on the res ipsa loquitur theory because plaintiff's evidence definitely proved the precise and specific negligence which caused the injury. Under the controlling decisions we are obliged to rule that plaintiff's evidence did not show specific negligence. Plaintiff's personal testimony revealed nothing with respect to the cause of her injury except that the bus came to a 'very, very sudden' stop. The testimony of plaintiff's witness Maude Brower did not show specific negligence. All that she added to plaintiff's story was that after the bus came to a sudden stop she saw an automobile facing west, parked directly in front of the bus, and that she 'imagined' that the bus driver applied the brakes 'to stop that quickly,' but that she could not honestly state that the driver applied the brakes. Defendant depends upon the testimony of plaintiff's witness Louis Minzes to establish its point. Minzes was sitting in the front seat next to the door on the west side of the bus, looking out of the front window at the time the bus stopped at Kingshingway and Easton Avenue. He had a clear view of Kingshighway. He described the movement of a Buick automobile northbound on Kingshighway as it executed a 'long, sweeping turn' across the white line toward a White Castle restaurant driveway which was located on the west side of Kingshighway some 30 feet south of the bus loading zone. He presumed that the driver of the Buick was going to make a left turn into the White Castle driveway. In commencing the long sweeping turn the driver of the Buick started from the extreme east side of Kingshighway. Minzes did not notice any signals given by the driver of the automobile. As the Buick started to turn in front of the bus, the bus came to a sudden stop. When Minzes first saw the Buick it had momentarily stopped some 50 feet south of the driveway. The bus was stopped. As the bus started forward the Buick continued to make a left turn. The Buick kept coming and the bus went into motion. As the bus went into motion the driver of the bus was 'putting change away and glanced out the window and putting some more change away and glanced out, I should have said because the car was coming, coming close to it. Neither one was going very fast, but it sure stopped.' The stopping gave Minzes 'an awful jolt.' From the time the bus started up from the loading zone until it finally came to rest it traveled 25 to 30 feet, coming to a stop just about the middle of the White Castle driveway. The following appears in the record in the examination of the witness Minzes:

'Q. And you were watching the operator as he brought the bus to a stop? A. I was.

'Q. You saw him applying the brakes and bringing the bus to a stop? A. No, I didn't see that.

'Q. What did you see him do? A. Well, after he left I noticed the operator was counting change and glancing out of the window just like I stated, and all of a sudden I knew the Buick was coming closer. I knew there was going to be an impact or close to it, and the operator, I guess he just put on the brakes. I didn't pay any attention to that though, yet I was watching him.

'Q. You were watching the operator? A. That's right.

'Q. Could you feel the brakes of the bus being applied? A. I did.

'Q. You have been on buses before when the brakes were applied? A. Yes, sir.

'Q. You know what it feels like when you are riding a bus and the brakes are applied? A. Not that bad.

'Q. Sir? A. I don't know what it feels like when they are applied that bad.

'Q. I am not speaking of a sudden stop; I am speaking of any kind of a stop. So you could tell when you were on the bus on this occasion that the brakes were being applied and the bus was being stopped? A. I would say yes.'

There was a collision between the bus and the automobile, so slight that Minzes did not realize at the time that it had occurred. When the bus came to a stop the automobile was right against the bus, that is, the right side of the front bumper of the automobile was against the left front side of the bus, the automobile facing northwest. The following testimony of Minzes is pertinent:

'Q. Do you know of your own knowledge that the brakes were applied or are you merely assuming that? A. I would say that I am assuming that.

* * *

* * *

'Q. Do you know of your own knowledge what caused the bus to stop, of your own personal knowledge? A. Common sense just told me that it was the brakes that was applied, that is all.

'Q. Well, sir, do you know of your own knowledge what caused it to stop? A. No.

'Q. Just tell us what you mean, what did you feel and what do you know about it. A. I felt the sudden stop, it could have been the brakes or could have ran up against a solid wall.

'Q. You know there was no solid wall there? A. That's right.

'Q. Well, can you tell what caused the bus to stop, of your own knowledge now, not what you heard but I mean from what you then felt and heard and saw? A. I am not able to say what made it stop.'

Under the holdings in the cases of Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197; Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506; Williams v. St. Louis Public Service Co., Mo.Sup., 253 S.W.2d 97; McCaffery v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 361; and White v. St. Louis Public Service Co., Mo.Sup., 259 S.W.2d 795, plaintiff is not to be deprived of the benefit of the res ipsa loquitur doctrine. Applying the rulings of these cases to the instant situation it may not be said, after all of plaintiff's evidence was in, that the real or precise cause of plaintiff's injuries was definitely shown by direct evidence as required. Williams v. St. Louis Public Service Co., supra. The specific negligence causing plaintiff's injuries still remained in doubt. The inference which defendant contends necessarily must be drawn (that the operator of the bus made a sudden and violent application of the brakes) was not proved by specific facts but depends for its validity upon the imagination of the witness Brower and the conclusions of the witness Minzes. The latter did not see the operator apply the brakes. He merely 'guessed' that the operator put on the brakes. He did not 'pay any attention to that,' While he 'felt' the application of the brakes and had experienced the 'feel' of the application of brakes he was not acquainted with the feel of a brake application 'when they are applied that bad.' He was merely assuming that the brakes were applied. 'Common sense just told' him that, but he did not know of his own personal knowledge and was unable to say what caused the bus to stop. This testimony constitutes nothing more than conclusions and results, and does not amount to specific facts, acts or conduct of the bus operator causing the sudden stop. See White v. St. Louis Public Service Co., supra, 259 S.W.2d loc. cit. 799.

While the occasion for the making of a stop was shown, viz., the operation of the Buick across the path of the bus, plaintiff did not go further and show the specific negligent act of defendant which caused the sudden stop. In its most favorable light plaintiff's evidence proved no more than that the stop was caused by the effect of brakes applied by the operator, but whether the brakes arrested the movement of the bus as the result of some negligence in the operation or some negligence in the maintenance of the braking system was not shown. See McCaffery v. St. Louis Public Service Co., supra. Minzes testimony went no further than to afford an equal basis for inconsistent conclusions, namely, that the sudden stop was due to the sudden and violent application of the brakes by the operator's act, or because of a negligently maintained transmission system. Williams v. St. Louis Public Service Co., supra, 253 S.W.2d loc. cit. 101.

Plaintiff's evidence in the instant case was not as specific as plaintiff's evidence in the Belding case, supra [358 Mo. 491, 215 S.W.2d 509]. In that case the plaintiff herself testified that there was "a sudden application of the brakes"; that "when they put on the brakes the jarring threw me to the floor"; that she could feel the application of the brakes and heard 'a'squeaky noise" from the brakes. This testimony was held not to clearly point out and identify any specific negligent act or omission on the part of the defendant or driver with respect to the function or application of the brakes. See also Valley v. Kansas City Public Service Co., Mo.App., 259 S.W.2d 387, in which although plaintiff's witness testified that the operator of...