Hale v. St. Louis Public Service Co., 28003

• Decision Date: 17 April 1951
• Docket Number: No. 28003,28003
• Citation: 238 S.W.2d 876
• Parties: HALE v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 876

238 S.W.2d 876

HALE v. ST. LOUIS PUBLIC SERVICE CO.

No. 28003.

St. Louis Court of Appeals, Missouri.

April 17, 1951.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 18, 1951.

Carroll J. Donohue and Salkey & Jones, all of St. Louis, for appellant.

Wilbur C. Schwartz and Harry M. James, St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by plaintiff as the result of negligence of defendant on November 17, 1948, when she was a passenger on defendant's bus. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $5000.00. Defendant duly appealed.

The petition of plaintiff alleged that defendant was a common carrier of passengers for hire in the operation of motor busses in the City of St. Louis, Missouri; that on November 17, 1948, she was a fare-paying passenger on a bus operated by defendant which was traveling northwardly on Seventh Street between Olive and Locust Streets in said city when defendant's agent and servant negligently caused and permitted said bus unexpectedly to give a sudden, violent and unusual jerk and jolt, whereby plaintiff was thrown against the seats and the floor of said bus and sustained injuries which were described at length in the petition.

Defendant's answer, after admitting the formal allegations contained in paragraph 1 of plaintiff's petition, denied generally the allegations in paragraphs 2 and 3 constituting the remainder of said petition.

At the trial plaintiff testified that on the date mentioned she was a passenger on a Lindenwood bus of defendant company which was proceeding north on Seventh Street in the City of St. Louis; that she was seated in the fourth seat on the right hand side of the bus; that after the bus had discharged passengers on the south side of Olive Street and had pulled away from that loading zone, she rang the bell, stood up and proceeded toward the back door; that at that time a violent jerk of the bus occurred and she was knocked to the floor; that the jerk of the bus threw her off balance and caused her to go backwards toward the front of the bus; that she first hit on her buttocks and then fell straight back; that after she fell she was lying in a prone position in the aisle of the bus with her head toward the driver and her feet toward the rear of the bus; that she lay there for a few minutes and was then able to get up; that the bus at that time was stopped in the middle of Seventh Street about thirty feet north of Olive Street; that she did not know why the bus was brought to a stop because her back was turned to the front of the bus, 'and when this violent jerk occurred I was so off balance I couldn't--I landed in front. I never knew nothing.' Plaintiff further testified that after the jerk and her fall the operator of the bus then drove it northwardly and brought it to its regular stop at Seventh and Locust Streets.

Plaintiff testified at length and in detail as to the nature and extent of her injuries. Dr. Richard Ray also testified at length in plaintiff's behalf concerning her injuries and the treatments he gave her for them, but since defendant makes no point in this court on such injuries, it would serve no useful purpose for us to set forth such testimony here.

On cross-examination plaintiff testified that when the bus had stopped on the south side of Olive Street at the regular stopping place, it was the first vehicle in line, there being no other vehicle in front of it; that she rang the bell and stood up as the bus was crossing Olive Street; that she was within several steps of the rear door when the violent jerk of the bus occurred; that the driver of the bus did not say why the sudden stop was made; that there was no collision of the bus with another vehicle; that she did not see an automobile pass to the left of the bus and did not see an automobile in front of it; that she did see two automobiles parked at Famous and Barr entrance but did not see these automobiles until after she had gotten up. At this point plaintiff testified: 'Q. You don't know why the driver applied the brakes of the bus? A. I don't know a thing.' Defendant's counsel asked plaintiff: 'Q. Can you tell us how fast that bus was moving at the time the brakes were applied?' and plaintiff answered: 'A. I had no judgment of the speed at all.' She further testified at this point: 'Q. You didn't feel any side movement? 'A. No. 'Q. Just the brakes being applied? 'A. I just don't know about the brakes being applied. All I know is a terrific jolt and then I was landing back in the back of the bus. The jolt was so hard, I couldn't----'

Dr. Douglas A. Ries called as a witness for defendant testified that he is a physician and specializes in general surgery; that he examined plaintiff on September 16, 1949, and found no ailments or illnesses except that she complained of pain in the left lumbar region of her back; that there was no objective evidence of tenderness or muscle spasm in that area; that x-rays of plaintiff's back were taken and revealed arthritis in the lumbar vertebrae; that his conclusion was that there was no objective evidence of any injury or disability as a result of the accident on November 17, 1948. Since the size of the verdict and the nature and extent of plaintiff's injuries are not in issue on this appeal, we refrain from further recitation of medical testimony.

Raymond E. Sparks, the operator of defendant's bus on the occasion involved herein, testified that he had been employed by defendant as a bus driver for seven and a half years; that on November 17, 1948, he was driving the Lindenwood bus on which plaintiff fell; that the bus was proceeding northwardly and made a stop at the south side of Olive Street in Seventh Street; that there were no vehicles between the front of the bus and Olive Street; that when the traffic officer gave the go-ahead signal, the bus started forward; that the bus was of the newest type fluid drive and when it had proceeded about two-thirds of the way across Olive Street, moving at about ten miles an hour, an automobile which had previously been alongside of the bus, cut in front of the bus. The witness testified that he applied the brakes as quickly as he could and avoided hitting the automobile; that at the time the bus stopped, there was less than an inch between the two vehicles and the bus was about six to eight inches away from the curb of Seventh Street. The witness stated he did not see anyone fall down in the bus, although he did hear a shuffling of feet; that he did not see plaintiff being assisted to her feet; that he received no complaints about any injuries.

On cross examination Sparks testified that Seventh Street was quite crowded with busses and automobiles; that the automobile mentioned was alongside of the bus at Seventh and Olive Streets and the vehicles were about a foot and a half apart; that when the go signal was given both vehicles started out simultaneously, both passing on the east side of the traffic officer in the intersection; that the automobile mentioned started to cut in front of the bus when the bus reached the north curb of Olive Street, and the witness was watching the automobile at all times; that when the automobile cut in front of the bus its movement was sudden and the witness immediately started to slacken the speed of the bus; that on the morning in question there were vehicles loading at the Seventh Street entrance of the Famous and Barr Department Store. The witness testified that he applied the brakes hard enough to stop the bus; that the bus stopped within four to five feet and he felt the jar as he applied the brakes; that the stop was an unusual stop; that he heard from other passengers that two ladies had fallen and were hurt.

Leroy Graham, Sr., called as a witness for defendant, testified that he was a passenger on the Lindenwood bus in question on November 17, 1948, which arrived at Seventh and Olive Streets about 11 o'clock in the morning; that he did not see anyone fall on the bus but heard a rumble which he interpreted as someone falling; that after the bus crossed Olive Street an automobile pulled in front of the bus and the bus driver jammed on his brakes, missing the other car by an inch; that the bus was brought to a complete stop.

Burt Ritchey testified on behalf of defendant that he was a passenger on the bus in question on November 17, 1948; that he was seated in the bus on the seat behind the driver; that the bus stopped at the south side of Olive Street on Seventh and then moved across Olive Street at less than ten miles an hour and was being driven straight ahead; that when the emergency stop was made the bus was five or six inches from the curb; that an automobile cut in front of the bus just as the bus cleared Olive Street; that the witness did not see anyone fall in the bus when the stop was made but when he looked around, he saw a lady sitting in the aisle; that he did not know who she was; that to avert a collision with the other automobile, the driver of the bus slammed on his brakes and the jolt that followed was unusual.

Defendant contends that the court erred in giving instruction No. 2 to the jury which submitted plaintiff's case to the jury under the 'res ipsa loquitur' doctrine. In support of this contention defendant argues that no res ipsa loquitur instruction should have been given because, as defendant claims, plaintiff's evidence showed the alleged specific negligence of defendant which caused her injuries and that her case should have been submitted to the jury on such specific negligence.

In support of its contention defendant argues that notwithstanding plaintiff's assertions that she did not know what caused 'the terrible and terrific jerk' a careful examination of portions of plaintiff's testimony, which defendant says 'may fairly be removed from...