Heidt v. People's Motorbus Co.

• Decision Date: 02 October 1928
• Docket Number: No. 20348.,20348.
• Citation: 9 S.W.2d 650
• Parties: HEIDT v. PEOPLE'S MOTORBUS CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

9 S.W.2d 650

HEIDT v. PEOPLE'S MOTORBUS CO. OF ST. LOUIS.

No. 20348.

St. Louis Court of Appeals. Missouri.

October 2, 1928.

Appeal from St. Louis Circuit Court; Henry A. Hamilton, Judge.

"Not to be officially published."

Action for personal injuries by Anna M. Heidt against the People's Motorbus Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 219 Mo. App. 683, 284 S. W. 840.

Carter, Jones & Turney, of St. Louis, for appellant.

Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries received by plaintiff while a passenger on defendant's motorbus in the city of St. Louis. On April 11, 1927, there was a trial to a jury, which resulted in a verdict and judgment for plaintiff for $3,500, and defendant appeals.

The defendant is a common carrier of passengers, and operates motorbuses on Delmar boulevard and other public streets in the city of St. Louis. The accident which resulted in plaintiff's injury occurred on Delmar boulevard, just west of Union avenue, in the neighborhood of the Masonic Home. The petition charges that, as the motorbus in which plaintiff was riding was proceeding westward on Delmar boulevard, said motorbus did then and there suddenly and violently, and in a very extraordinary, unprecedented, and unusual manner, jerk, jar, and jolt, as a direct and proximate result of the negligence and carelessness of the defendant, and with such violence as to throw plaintiff from her seat, whereby she was injured.

The testimony on behalf of the plaintiff shows that plaintiff and her companion were seated in the rear of the motorbus on the left-hand side, her companion next to the window, and plaintiff next to the aisle; that a sudden violent jerk or jolt of the motorbus occurred, of an unusual and extraordinary character, which threw plaintiff from her seat, across the aisle, against a seat on the opposite side of the aisle, and down upon the floor of the motorbus, and she was thereby injured; that she was thrown against the seat across the aisle with such violence that one of her ribs was broken, and she was otherwise injured. Plaintiff testified that, from where she was seated in the motorbus, she could not see the motorman, nor see what he was doing with reference to the operation of the motorbus, and that she had no knowledge as to what caused the motorbus to jerk or jolt, and that she did not know whether the motorbus skidded or not.

The testimony on behalf of the defendant shows that the pavement was wet and slick from rain, that the motorbus skidded, and the rear end of the motorbus swerved to the right, and the right rear wheel struck the north curb, and that this caused the violent jerk or jolt, which threw plaintiff from her seat. The conductor of the motorbus testified:

"Q. Don't you know, as a matter of fact, that all street construction must be higher in the center in order to drain the street? A. They are not, because I have walked the streets in St. Louis here, and they are not of the same grade as they are out there around the Masonic Home and Delmar boulevard.

"Q. Going west, away from Union avenue, near the Masonic Home, are you going downhill, are you proceeding west on level territory, or are you going uphill, as far as west is concerned? A. As far as west is concerned, it is on level ground; but, if you go in any place off the middle of the street, you are going to the curb.

"Q. As far as going west was concerned, it was level? A. If you keep out near the car track.

"Q. Keep out near the car track? A. Yes; it is level there; if you keep in toward the curb, it is on a slope.

"Q. Where did your bus keep? A. It kept right about, about the same as the car track, but in order to give anything going by, to give them the right of way, kept in, and it skidded right into the curb; the street was wet; that part of the street is like glass, on a rainy day.

"Q. How wide is the space between the car tracks and the curb there? A. Oh, I don't know what is the width.

"Q. About 22 feet there, isn't it? A. I never measured it; but I know it is wide enough, all right. The bus came to a stop in a distance of about 10 feet after the wheel hit the curb."

The driver of the motorbus testified:

"Q. Well, do you remember anything that occurred? A. I remember the bus skidded and hit the curb there.

"Q. What was the condition of the weather? A. The pavement was slippery; it was raining at the time.

"Q. And do you know what caused it to skid? A. No, sir.

"Q. You did not change the direction of it in any way? A. Not in any way.

"Q. Now, how fast were you going? A. I judge about 10 miles an hour.

"Q. How close were the right-hand wheels of your machine as you proceeded westwardly away from the north curb? A. I should guess maybe 3 or 4 feet.

"Q. You were running close to the curb? A. Close to the curb.

"Q. When this bus skidded, you were proceeding then straight west in a due line? A. Yes, sir.

"Q. And suddenly the rear end of the bus swung around? A. Yes, sir.

"Q. Without any application of the brake or a single thing? A. For no cause; I don't know what it was.

"Q. You weren't trying to stop? A. No, sir.

"Q. You weren't trying to avoid hitting anybody? A. There was nothing in front of me.

"Q. Not a thing? A. Not a thing.

"Q. You weren't pulling from right to left? A. No, sir.

"Q. You weren't manipulating your steering gear in any way? A. No, sir.

"Q. You were going straight ahead? A. I kept on going straight ahead.

"Q. Had you ever passed that point before? A. Yes, sir.

"Q. It rained a good deal in June and July, and also April and May, of 1923, didn't it? A. Yes, sir.

"Q. Rained almost every day, especially during the month of June? A. Rained pretty good; yes, sir.

"Q. And rained on this particular day, June 10, 1923; put the street in about the same shape it was in on other days at that point, didn't it? A. Yes, sir.

"Q. Did you skid at that point every time you went by? A. No, sir.

"Q. Never had skidded there before, had you; is that right? A. That is right; I had never skidded there that I know of.

"Q. Skidding—in wet weather you try to avoid skidding, don't you? A. Yes, sir.

"Q. You know in wet weather that you have got to exercise care—look out to avoid skidding —don't you? A. Yes, sir.

"Q. Didn't you say on this occasion you may have been going faster? A. On this occasion I didn't have to go fast at all.

"Q. Did you feel the jolt? A. Yes, sir.

"Q. Felt it up in the front end? A. Yes, sir.

"Q. What kind of a jolt was it? A. Well, the ordinary—if the wheel of a car hit the curb.

"Q. Pretty good jolt? A. Oh, not so very bad.

"Q. You had never experienced a jolt like that before, had you? A. Once or twice I did.

"Q. Skidding? A. Yes.

"Q. You said `Yes,' didn't you? A. Yes, sir.

"Q. What can you do to avoid skidding? A. Well, in a case like that, you can't do a thing, if you are close to the curb; if you are a little ways away from the curb, you can hold the head end the same way as your bus is heading; but, when you are too close, you can't do anything to avoid it."

Defendant's superintendent of transportation, who was a passenger on the motorbus at the time of the accident, testified:

"Q. Do you know the construction of the street there? A. I do, sir.

"Q. Do you know whether there is a camber in the street? A. Yes, sir.

"Q. And the street slopes, by reason of that camber, towards the curb? A. Yes, sir.

"Q. Just describe what kind of a skid it was. A. The rear end just slid around; the rear end wasn't more than 4 or 5 feet from the curb, and the rear end just gradually slid over so that the wheel bumped the curb; that is all there was to it.

"Q. The streets were wet; you know that? A. Yes, sir."

The defendant assigns error upon the refusal of its instruction in the nature of a demurrer to the evidence offered at the close of the whole case. It is manifest, without discussion, that this assignment must be ruled against defendant. It is clear that the testimony on behalf of the plaintiff, as disclosed by the record before us, made out a prima facie case of presumptive negligence arising under the res ipsa loquitur rule. State ex rel. St. Louis-San Francisco Ry. Co. v. Daues, 316 Mo. 474, 290 S. W. 425; Whitlow v. St. Louis-San Francisco Ry. Co. (Mo. App.) 282 S. W. 525; Price v. Metropolitan Street R. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588; Carlson v. Wells (Mo.) 276 S. W. 26, 42 A. L. R. 1319; Laycock v. United Railways Co., 290 Mo. 344, 235 S. W. 91; Brown v. Railroad, 256 Mo. 522, 165 S. W. 1060; Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S. W. 777; Scheipers v. Missouri Pacific R. Co. (Mo.) 298 S. W. 51; Smith v. Creve Cœur Drayage & Motorbus Co., 220 Mo. App. 1122, 296 S. W. 457; Stegman v. People's Motorbus Co. (Mo. App.) 297 S. W. 189. We also think that the testimony offered on behalf of the defendant tends to show some specific negligence to aid the prima facie case made by the testimony on the part of the plaintiff.

This case was here on a former appeal, and is reported in 219 Mo. App. 683, 284 S. W. at page 840. On the trial resulting in the former appeal, plaintiff testified that the motorbus skidded against the curb, and this court ruled that, since plaintiff's own testimony showed just what specific act caused the accident, to wit, the mere skidding of the motorbus, plaintiff was not entitled to go to the jury on presumptive negligence arising under the rule of res ipsa loquitur. Defendant now claims that plaintiff is bound by her testimony in the former trial. Upon the trial resulting in the present appeal, the plaintiff explained her testimony, given at the former trial by saying that sh...