Henrichs v. Inter City Bus Lines

• Decision Date: 23 October 1961
• Docket Number: No. 9891,9891
• Citation: 79 S.D. 267,111 N.W.2d 327
• Parties: Viola HENRICHS, Plaintiff and Respondent, v. INTER CITY BUS LINES, a Corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 327

111 N.W.2d 327

79 S.D. 267

Viola HENRICHS, Plaintiff and Respondent, v. INTER CITY BUS LINES, a Corporation, Defendant and Appellant.

No. 9891.

Supreme Court of South Dakota.

Oct. 23, 1961.

Martens, Goldsmith, May & Porter, Pierre, for defendant and appellant.

Stephens, Riter & Mayer, Pierre, for plaintiff and respondent.

RENTTO, Judge.

This action seeks to recover damages claimed to have been suffered by plaintiff when the heating system of a bus operated by defendant in which she was a paying passenger ceased to operate in sub-zero weather. The jury awarded her $7,068 for which judgment was entered. The bus company appeals from the judgment and the order denying it a new trial.

About 2:30 a. m. on January 5, 1959, plaintiff and her nine-year-old daughter boarded defendant's bus at Presho, South Dakota, to go to Norfolk, Nebraska, to attend the funeral of a relative. The weather was clear and dry but the outside temperature was about twenty degrees below zero. She testified that the bus was cold when she got on the that it did not warm up as it proceeded east on U. S. Highway 16. About 1 1/2 miles east of Lyman its engine stopped running causing the heaters to fail. The driver and a companion tried to restart the engine but their efforts were not successful. A couple of the passengers walked to Lyman and returned with a trucker who pushed the bus to Chamberlain arriving there some two to three hours after it stalled. While being pushed the heating system of the bus did not function.

Plaintiff claims that the failure of the heating system was due to the negligence of the bus company and that her feet and the lower portion of her legs were frozen causing her great suffering and permanent injury. The bus company denied that it was negligent and claimed that plaintiff's own negligence contributed to her injury and took the position that the suffering of which she complained was due to her existing varicosities rather than any lack of care on its part.

The bus was powered by a Cummins diesel engine located in the rear of the vehicle. It operated on a fuel known as Mobile Diesel Fuel, considered to be a premium grade. For winter use it is made lighter to 'take care of the cooler temperatures'. It is in general winter use by diesel engine motor carriers in northern Minnesota, North and South Dakota without any reports of difficulty encountered in its use. When the outside temperature is extremely cold diesel fuel with congeal and when that happens it does not flow freely in the fuel lines. In addition under some conditions condensation causes water to collect in the fuel tank which, if it freezes, will interrupt the flow of fuel to the engine. In cold weather a compound known as 'Heet' is added to the fuel to prevent this but it does not affect its congealing. On the fuel line is a filter, apparently near the engine, to separate the water from the fuel and trap it. The pump draws the fuel from the tank and forces it through the filter and into the engine under pressure.

The driver of the bus testified that the heaters were all working before it stalled and that the bus operated normally in all respects until then. At that time it 'cut out like it wasn't getting fuel.' He put two cans of Heet in the fuel tank and tried to start the motor with ether. The motor started but ran only a short time before cutting out again. Earlier on the trip he had put in three cans at Wall. This was a regular practice during cold weather.

Another of defendant's bus drivers was on the bus but not on duty. He was merely riding it or 'cushioning', as he termed it, going from Rapid City to Mitchell. He assisted the driver in trying to get the motor started at the place of stalling and in Chamberlain. He said that a frozen fuel line, which is not unheard of in motor vehicles, was the cause of the stalling and after that the heaters froze. In Chamberlain they took off that portion of the fuel line which runs from the filter to the pump but found no evidence of anything frozen.

He further testified that to avoid freezing in the fuel line these vehicles always carry Heet and ether to be used in restarting the motor. When they left Rapid City they had three cans of Heet. Two of these cans were used at Wall so they had only one left when they stalled. After that they got about a dozen cans from the trucker who pushed them into Chamberlain. He indicated that one can should have been put in the fuel tank at Presho and that if such had been done that he would have expected the fuel line to continue working. He was unable to state as to when Heet would customarily be added to the fuel tank in cold weather operation of the bus between Rapid City and Mitchell. On later examination of the bus by the defendant's shop foreman no water or foreign substance was found in the filter or any defect in the fuel line or system.

The Rapid City manager for Cummins diesel, in answer to a hypothetical question, testified that this bus stalled because the fuel had congealed due to the extremely cold weather. He also testified as to condensation causing water to collect in the fuel tank and said that if there was water in the fuel it would go through to the filter and could be seen in it when it is disassembled, either as ice or water depending on the temperature. He stated that if there was water in the filter at the point of stalling that it would remain there until it is drained out. He expressed the opinion that because there was no water in the filter when it was disassembled that the stalling of the bus was not due to the presence of water in the fuel. In his 17 years in the diesel engine business he had heard of diesel fuel congealing in the winter time 'more or less' a few times every winter but it was getting rarer because of continuing improvement in diesel fuels. The record does not indicate anything that can be done to protect against this. He also admitted that a line conducting diesel fuel, if it gets cold enough, can freeze the same as a line carrying gasoline.

In submitting the case the court told the jury that the doctrine of res ipsa loquitur applied. In its Instruction No. 11 it said:

'From the happening of the accident or the breakdown of the bus involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiff, if you find that she was actually injured as a result thereof. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that it did, in fact, exercise the utmost care and diligence or that the accident occurred without being proximately caused by any failure [of] duty on its part.'

The bus company excepted to the giving of this instruction and claimed that it was not proper in this case because the precise cause of the accident appears in the evidence and made the further objection that whether the doctrine applied was a fact question to be determined by the jury and not a matter of law for the court.

In support of the first ground the bus company relies on Anderson v. Chicago & N. W. Ry. Co., 59 S.D. 543, 241 N.W. 516. In that case this court approved the general rule that if the precise cause of the accident is shown obviously the doctrine of res ipsa loquitur is not available. However, in this case the precise cause of the accident does not appear. While it is clear that the heating system failed because the engine was not getting fuel, conflicting conclusions can be drawn as to why its fuel supply failed. In other words, we know what happened but not why. This is in dispute. See Annotation 33 A.L.R.2d 791.

One of the foundational requirements which must appear before the doctrine is available is that 'the occurrence is such as in the ordinary course of events does not happen if due care has been exercised,'. Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97, 98; McLinn v. Noll, 65 S.D. 440, 274 N.W. 833. See also Midwest Oil Co. v. City of Aberdeen, 69 S.D. 343, 10 N.W.2d 701. Dean Prosser states this principle thus, 'Its first requirement is a basis of past experience which will permit the triers of fact to conclude that such events do not ordinarily happen unless someone has been negligent.' 37 Cal.Law Rev. 183. He goes on to indicate that this basis of experience may be found in that which is common to the community or brought out in the evidence.

In telling the jury that the doctrine applied to this case the trial court determined as a matter of law that an occurrence such as this does not ordinarily happen unless someone has been negligent. In so doing we think the court committed error to the prejudice of the defendant. In Kite v. Coastal Oil Co., 162 Cal.App.2d 336, 328 P.2d 45, 51, it is written:

'It is only where there is no issue of fact as to the existence of any of these conditions that the court may, as the court did here, direct the jury to draw the inference.'

On this record differing conclusions could reasonably be drawn as to whether this occurrence was one that ordinarily does not happen in the absence of someone's negligence. It seems to us that whether this requirement satisfactorily appears is a question of fact which should have been submitted to the jury.

While this disposes of the appeal we think it proper to record our views on other matters complained of which are likely to arise on a retrial. Instruction #11 is obviously copied from Instruction 206B of Cal.Jury Instructions--Civil. In the Kite case the California court had this to say about another of its features:

'The instruction given is erroneous in a further particular, for by it the jury were told that if the...