Harke v. Haase

• Citation: 75 S.W.2d 1001,335 Mo. 1104
• Decision Date: 22 October 1934
• Docket Number: 31512
• Parties: Fred Harke v. Christ E. Haase, Appellant
• Court: United States State Supreme Court of Missouri

75 S.W.2d 1001

335 Mo. 1104

Fred Harke v. Christ E. Haase, Appellant

No. 31512

Supreme Court of Missouri

October 22, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Chas. W Rutledge, Judge.

Reversed and remanded.

Wayne Ely and Tom Ely, Jr., for appellant.

The court erred in giving Instruction 1 for plaintiff. (a) Plaintiff's Instruction 1 is fatally erroneous, in that it tells the jury that if they found that defendant's automobile ran upon the sidewalk and struck and injured plaintiff, "then there is a presumption of negligence on the part of defendant." (b) Plaintiff's Instruction 1 is fatally erroneous, in that it places the burden of proof upon the defendant "to prove by a preponderance of the evidence and to establish the fact that there was no negligence" on his part. McCloskey v. Koplar, 46 S.W.2d 557; Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21; Burge v. Wabash, 148 S.W. 925; Peck v. St. L. Trans. Co., 178 Mo. 617, 77 S.W. 736; Carpenter v. Burmeister, 273 S.W. 418; Swoboda v. Nowak, 213 Mo.App. 452, 255 S.W. 1079; McCune v Daniels, 251 S.W. 458; Cook v. Union E. L. & P Co., 232 S.W. 248; McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079; Lauff v. Kennard & Sons, 186 Mo.App. 123, 171 S.W. 986; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815; Sinay v. Chesebro-Whitman Co., 140 N.Y.S. 1074; Schactele v. Bristor, 148 A.D. 843; Kantner v. Railroad Co., 236 Pa. St. 283; Samardege v. Hurley-Mason, 72 Wash. 150; Findley v. Ry. Co., 78 S.E. 396; Abilene & S. Railroad Co. v. Burleson, 157 S.W. 1177; Norfolk-So. Railroad Co. v. Tomlison, 81 S.E. 89; Priest v. Nichols, 116 Mass. 401; 2 Jones on Evidence (2 Ed.), sec. 484, p. 862; Steffen v. S.W. Bell Tel. Co., 56 S.W.2d 50; Rath v. Knight, 55 S.W.2d 684; Mackler v. Barnert, 49 S.W.2d 246.

Gallant, Hannigan & Summer for respondent.

(1) When an automobile leaves its accustomed place of travel in the street, runs upon the sidewalk and there strikes a pedestrian, the doctrine of res ipsa loquitur applies. Smith v. Hollander, 259 P. 958, 85 Cal.App. 535; Griffith v. Simrell & Son Co., 155 A. 299, 304 Pa. 165; Linberg v. Stango, 297 P. 9, 75 A. L. R. 555; Gates v. Crane Co., 107 Conn. 201, 139 A. 782; Scott v. Checker Cab Co., 126 So. 241; Bailey v. Fisher, 11 La. App. 187, 123 So. 166; Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221, 282 P. 1009; Rogles v. United Rys. Co., 232 S.W. 93; Heidt v. Peoples Motorbus Co., 9 S.W.2d 650; Hollensbe v. Pevely Dairy Co., 38 S.W.2d 273; Mackler v. Barnert, 49 S.W.2d 244; Miller v. Callahan Const. Co., 46 S.W.2d 948. (2) In a case under the doctrine of res ipsa loquitur the burden of proof is and ought to be upon the defendant to show his freedom from negligence, on grounds of necessity and justice. Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Hurck v. Ry. Co., 252 Mo. 39, 158 S.W. 581; Warren v. Missouri & Kansas Tel. Co., 196 S.W. 1030; Mayne v. Rys. Co., 229 S.W. 386; Porter v. St. Joseph Ry. L. H. & P. Co., 311 Mo. 66, 277 S.W. 913; Bond v. Ry. Co., 288 S.W. 777; Roberts v. Schaper Stores Co., 318 Mo. 1190, 3 S.W.2d 241; Fowlkes v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Zimmerman v. Kansas City Pub. Serv. Co., 41 S.W.2d 579; Keady v. Stix, Baer & Fuller Co., 15 S.W.2d 379; Hauck v. Am. Car & Fdry. Co., 14 S.W.2d 497; Gibson v. Wells, 258 S.W. 1.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming to the writer recently, is an action for damages for personal injuries. Plaintiff's petition alleged that while plaintiff was standing on the sidewalk near the intersection of two public streets, "the defendant carelessly and negligently drove and operated an automobile in such a manner as to run onto the sidewalk, striking plaintiff and causing plaintiff to be pinned between said automobile and a building." Defendant's answer was a general denial. Plaintiff recovered a verdict for $ 14,000, and from the judgment entered thereon defendant has appealed.

Plaintiff's evidence tended to show that on February 1, 1930, he was standing on the sidewalk, at the southwest corner of the intersection of Twenty-second and Morgan streets in the city of St. Louis, when an automobile owned and driven by defendant ran upon the sidewalk behind him, struck and pushed him into the side of a building. Plaintiff had both legs broken and sustained numerous other injuries and the whole corner of the brick building was torn out. Plaintiff had two witnesses who saw defendant's automobile come from the street onto the sidewalk and strike plaintiff. They did not see this automobile until it started toward the sidewalk and they saw no other car on the street at the time. Plaintiff had another witness who saw two automobiles in the intersection, one of which was defendant's automobile coming south across Morgan Street on Twenty-second Street, the other coming west on Morgan Street and turning south on Twenty-second Street. He said they both reached the middle of the intersection about the same time; that they were traveling at about the same speed; that the car coming from the west cut in ahead of defendant's automobile to turn onto Twenty-second Street; and that the cars came close together but never touched each other at any time.

Defendant's explanation of the matter was corroborated by two witnesses, one of whom was following him south on Twenty-second Street driving a truck, and the other was stopped on the south side of Morgan Street with his automobile headed north on the west side of Twenty-second Street. Defendant's evidence tended to show that defendant slowed down and changed gears before driving south into Morgan Street; that he proceeded slowly across it; that, when he got beyond the middle of the intersection to the south side of Morgan Street, another automobile coming west on Morgan Street running between forty and fifty miles per hour, turned left onto Twenty-second Street and side-swiped defendant's car, striking the left front fender and causing it to swerve into the part of the street which was covered with ice; that defendant put on his brakes but was unable to control his car; and that his car skidded onto the sidewalk. There was conflicting evidence as to the amount of snow and ice on the streets. According to plaintiff's evidence there was only a slight amount of snow near the curb and there was as much as six inches elevation between the street and curb. According to defendant's evidence the snow and ice extended almost to the traveled part of the street and was level with the top of the curb.

Defendant assigns error in giving plaintiff's Instruction No. 1 and refusing defendant's Instruction C. Plaintiff's Instruction No. 1 was as follows:

"The court instructs the jury that if you find and believe from the evidence that on or about the 1st day of February, 1930, plaintiff was a pedestrian and as such was on the sidewalk on the southwest corner of Twenty-second Street and Morgan Street, and if you further find that an automobile owned and being driven by the defendant ran over and upon the aforesaid sidewalk striking plaintiff and injuring him, if you so find, then there is a presumption of negligence on the part of the defendant, and if you so find that the defendant was negligent, then your verdict will be in favor of the plaintiff and against the defendant and the burden of proof is cast upon the defendant to overcome such presumption by a preponderance of the evidence and to establish the fact that there was no negligence on the part of the defendant."

Defendant's Instruction C was as follows:

"The court instructs the jury that (the charge of negligence made by plaintiff against defendant by this action must be proved to the satisfaction of the jury by the greater weight of the evidence, and) the burden of proof is on the plaintiff to show that he was injured by the negligence of the defendant. The jury have no right to presume negligence, nor to speculate upon the facts, and if the evidence does not preponderate in favor of the plaintiff, then your verdict should be for the defendant."

We think that the italicized portions of both instructions are objectionable. This case is presented upon the theory that it is a case where the res ipsa loquitur rule applies and that view seems to be sustained by good authority. [1 Berry on Automobiles (6 Ed.) 383, sec. 452; 15-16 Huddy on Automobile Law (9 Ed.) 281, sec. 157; Smith v. Hollander (Cal. App.), 257 P. 577, 259 P. 958; Linberg v. Stango (Cal.), 297 P. 9, 75 A. L. R. 555, and note l. c. 562; Gates v. Crane Co. (Conn.), 139 A. 782; Bailey v. Fisher (La. App.), 123 So. 166; Scott v. Checker Cab Co. (La. App.), 126 So. 241; Griffith v. Simrell & Son Co. (Pa.), 155 A. 299; Heidt v. Peoples Motor Bus Co. (Mo. App.), 9 S.W.2d 650; Hollensbe v. Pevely Dairy Co. (Mo. App.), 38 S.W.2d 273; Miller v. Callahan Const. Co. (Mo. App.), 46 S.W.2d 948; Mackler v. Barnert (Mo. App.), 49 S.W.2d 244; see, also, Rogles v. United Rys. Co. (Mo.), 232 S.W. 93.]

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." If a train jumps off the track, the rule of res ipsa loquitur applies. There would seem to be no good reason why the same rule should not apply when an automobile...