Hennekes v. Beetz
| Decision Date | 06 January 1920 |
| Citation | 217 S.W. 533,203 Mo.App. 63 |
| Parties | LOUISA HENNEKES, Appellant, v. HENRY BEETZ, Respondent |
| Court | Missouri Court of Appeals |
December 4, 1919, Argued and Submitted
Appeal from the Circuit Court of the City of St. Louis.--Hon. Glendy B. Arnold, Judge.
Judgment affirmed.
Frank H. Haskins and George L. Newman, for appellant.
(1) This is a case where the doctrine of res ipsa loquitur applies. Clark v. C. & A. Ry. Co., 127 Mo. 209; Lemon v. Chanslor, 68 Mo. 354; O'Gara v Transit Co., 204 Mo. 733; Goodloe v. Metropolitan St. Ry. Co., 120 Mo.App. 198. (2) Plaintiff made out a prima-facie case, which in the absence of explanation entitled her to a verdict, and the burden was upon defendant to show to the satisfaction of the jury that the injury was not caused by his negligence. Clark v. C. & A. Ry Co., 127 Mo. 209; Lemon v. Chanslor, 68 Mo 356; Goodloe v. Metropolitan St. Ry. Co., 120 Mo.App. 198; Freeman v. Foreman, 141 Mo.App. 364; (3) The court should have given plaintiff's instruction Number Two in the form asked. Clark v. C. & A. Ry. Co., 127 Mo. 209; Lemon v. Chanslor, 68 Mo. 343; O'Gara v. Transit Co., 204 Mo. 739; Orcutt v. Century Bldg. Co., 214 Mo. 47. (4) And the court erred in altering the instruction and giving it in the altered form. Turner v. Butler, 253 Mo. 214; Carey v. Chicago Ry. Co., 188 Ill.App. 450; Maxey v. Metropolitan Street Ry. Co., 95 Mo.App. 311.
Leahy & Saunders for respondent.
(1) The res ipsa loquitur doctrine does not apply in favor of the guest in an automobile driven by a private owner. Fitzjarrall v. Boyd, 123 Md. 497, 504; Philpot v. Fifth Av. Coach Co., 128 N.Y.S. 35, 44; Williams v. Holbrook, 216 Mass. 239, 242; Beard v. Klusmeier, 158 Ky. 135, 50 L. R. A. (N. S.) 1100, 1104; Perkins v. Galloway, 69 So. 875, 877; Patnode v. Foote, 153 A.D. 494; Berry on Automobiles, (2 Ed.), sec. 334, p. 395; Babbitt on The Law Applied to Motor Vehicles (2 Ed. Blackmore), sec 1219; Loftus v. Pelletier, 111 N.E. 712; Oglesby v. Railway, 177 Mo. 272, 300. (2) The petition in this case is based solely upon alleged negligence on the part of the defendant and since the res ipsa loquitur doctrine was not pleaded, it is unnecessary to consider whether under the circumstances it might be applicable. It has long been the rule in this State that where specific negligence is pleaded, plaintiff is confined to that, and cannot rely upon res ipsa loquitur doctrine. McGrath v. St. Louis Transit Co., 197 Mo. 97, 104-105; Feary v. Metropolitan Street Ry. Co., 162 Mo. 75, 96; Topeka and Santa Fe Ry. Co., 129 Mo.App. 498, 503; Grisamore v. Chicago, Rock Island and Pac. Ry. Co., 118 Mo.App. 387, 390; (3) The theory of negligence alleged in the petition was submitted to the jury under plaintiff's instruction No. 1; that was the only theory pleaded and of this instruction, there is, of course, no complaint, since given at plaintiff's request. (4) The attempted res ipsa loquitur instruction No. 2, offered by plaintiff and modified by the court was in any event erroneous; first, because not pleaded; second, because not applicable to the facts in the case. Plaintiff (appellant) can in no event complain of invited error. Harper v. Morse, 114 Mo. 317, 322; Bettes v. Magoon, 85 Mo. 580, 586; Wilkinson v. St. Louis Sectional Doct. Co., 102 Mo. 130, 142; Diel v. Stegner, 56 Mo.App. 535, 540; Bielman v. Chicago, etc., Ry. Co., 50 Mo.App. 151, 156; Fenwick v. Bolway, 50 Mo.App. 516, 523.
The amended petition upon which this case was tried charges that on September 6, 1916, plaintiff was riding in an automobile owned and driven by the defendant, Henry Beetz; that while driving northwardly on Broadway, in the city of St. Louis, "the defendant so carelessly and negligently drove said machine that it turned completely around and smashed violently against the side of the street, throwing plaintiff bodily out of the machine." Charging that she was seriously injured and permanently incapacitated, was put to great expense for medical attendance, medicines and nursing, stating the amount of her expenditures, plaintiff prays judgment for $ 3500 and costs.
The answer was a general denial.
At the trial of the case before the court and a jury, there was a verdict in favor of defendant, judgment following. Filing her motion for a new trial, plaintiff has duly appealed.
There was evidence in the case tending to prove that plaintiff with others among them defendant's wife and two small children, at the invitation of defendant, was riding in an automobile owned by defendant and which he was driving, the party on the way to a picnic. The street along which the automobile was being driven had been recently sprinkled and while the automobile was travelling northwardly in the street car track, defendant "made a swift turn," according to plaintiff, turning to the left, to get out of the car track on account of a coal wagon on the track some distance ahead. The street was somewhat higher in the middle than at any other point and while the front wheels of the automobile left the track without difficulty, the rear wheels skidded on the wet rails and pavement, causing the automobile to turn around so that it was pointing southwardly, come to a stop, striking the curb of the street and turning over on its side. None of the passengers were thrown out and the automobile, on being righted, was so slightly damaged that it was driven away after the accident. While none of her limbs appear to have been broken, plaintiff was badly shaken up and bruised, in the treatment for which she incurred some expense. There is no evidence for plaintiff as to how fast the machine was going, beyond the statement that it was "going swift."
Defendant introduced evidence tending to prove that he was an experienced driver of an automobile and was proceeding with all due care; that before he turned on the car tracks he was going from 15 to 20 miles an hour; that as he turned from the tracks the gas was shut off; that he had to turn off the rails to pass or avoid a coal wagon; that he was not driving at an excessive speed.
At the conclusion of plaintiff's evidence the defendant interposed a demurrer, which was overruled.
At the close of the case and at plaintiff's request the court gave two instructions, one on the measure of damages and the other as follows:
Plaintiff also asked the court to give an instruction (numbered II) as follows:
"The court instructs the jury that if they find from the evidence that the automobile being driven by defendant skidded with such violence as to turn completely around and hit the curb on the west side of the street with sufficient force to throw it on its side, they shall infer negligence from those facts, unless the defendant explains them and affirmatively proves that they were caused by things other than his negligence."
The court refused to give this as asked, substituting, over the objection and exception of plaintiff, for the clause, "they shall infer negligence," which we have italicized, the clause, "and injure the plaintiff you may infer negligence," and gave it as so changed.
Of its own motion the court gave the usual instruction as to the number of jurors necessary to concur in a verdict.
The defendant asked no instructions.
Counsel for appellant say in their statement and brief that their petition "is based on the doctrine of res ipsa loquitur, general negligence only being pleaded." On this theory they asked their instruction, which the court refused in the form asked, changing it as we have set out, and they have briefed the case on the theory that that doctrine applies, claiming that plaintiff made out a case, which, in the absence of explanation, entitled her to recover, and that the burden was upon defendant to show to the satisfaction of the jury that the injury was not occasioned by his negligence, hence that the court should have given the instruction in the form asked and that it erred in altering it and then giving it as altered. This is the sole point urged on this appeal.
To determine whether this is a case in which the doctrine of res ipsa loquitur applies, we must turn to the petition.
This is the averment touching the matter of liability:
"While driving northwardly, . . . the defendant so carelessly and negligently drove said machine that it turned completely around and smashed violently against the side of the street, throwing plaintiff bodily out of the machine."
Bliss on Code Pleading (3 Ed.), sec. 211a, under the heading "Negligence is not a conclusion of Law," says that the plaintiff in his pleading "must state specifically what acts caused the injury, adding the negligence as creating the liability, the latter to be stated in a general way, as that 'the defendant by,' etc., 'did run and manage one of their cars in such a grossly careless and negligent manner that,'" etc., referring to Garner v. Hannibal & St....
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