Hill v. St. Louis Public Service Co.

• Decision Date: 13 June 1949
• Docket Number: 41168
• Citation: 221 S.W.2d 130,359 Mo. 220
• Parties: Robert Joseph Hill, a minor by Florence Hill, his next friend, Respondent, v. St. Louis Public Service Company, Appellant, Tony Trollinger, Defendant
• Court: Missouri Supreme Court

221 S.W.2d 130

359 Mo. 220

Robert Joseph Hill, a minor by Florence Hill, his next friend, Respondent, v. St. Louis Public Service Company, Appellant, Tony Trollinger, Defendant

No. 41168

Supreme Court of Missouri

June 13, 1949

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed (subject to remittitur).

SYLLABUS

Plaintiff bus passenger was injured in a collision with a truck. Both the bus company and the truck operator were made defendants, but a verdict was obtained against the bus company alone. There was a submissible case against the bus company under the doctrine of res ipsa loqitur. Plaintiff's evidence was not too specific to prevent such submission, nor did specific evidence of defendants or the fact that the bus company did not have control over the truck prevent the application of the doctrine. There was no error in the jury argument. Expert evidence as to plaintiff's injuries was proper but the verdict is excessive.

Mattingly, Boas & Richards and Lloyd E. Boas for appellant.

(1) Plaintiff's evidence clearly showed the specific cause of the collision producing his injury and it was prejudicial error to submit the case to the jury upon the res ipsa loquitur doctrine. Grimes v. Red Line Service, 85 S.W.2d 767, 337 Mo. 743; Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Sanders v. City of Carthage, 51 S.W.2d 529, 330 Mo. 844; Hoeller v. St. L. Pub. Service Co., 199 S.W.2d 7; Berry v. K.C. Pub. Service Co., 121 S.W.2d 825, 343 Mo. 474; Powell v. St. Jos. Ry., Light, Heat & Power Co., 81 S.W.2d 957, 336 Mo. 1016. (2) Error was committed in the giving of Instruction 1 on the res ipsa loquitur doctrine for the reason that the evidence conclusively showed that the defendant, St. Louis Public Service Co., did not have the exclusive management and control of the instrumentality causing plaintiff's injury. Cruce v. Gulf, Mobile & Ohio Ry., 216 S.W.2d 78; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Cantley v. Missouri-Kansas-Texas R. Co., 183 S.W.2d 123, 353 Mo. 605; Gibbs v. General Motors Co., 166 S.W.2d 575, 350 Mo. 431; McCloskey v. Koplar, 46 S.W.2d 557, 329 Mo. 527. (3) The court erred in permitting plaintiff's witness Dr. Ferris to testify that if plaintiff's leg was opened in the future, plaintiff would have more difficulty in getting it closed again. Armstrong v. Croy, 176 S.W.2d 852; Carroll v. Missouri P. & L. Co., 96 S.W.2d 1074, 231 Mo.App. 265; Cardinale v. Kemp, 274 S.W. 437, 309 Mo. 241. (4) The court erred in permitting plaintiff's counsel to argue, over objection of defendant's counsel, improper and prejudicial matters not within the issues involved in the case. Schrader v. Kessler, 178 S.W.2d 355; Smith v. Sears & Roebuck, 84 S.W.2d 414; State v. Bailey, 115 S.W.2d 17. (5) The verdict was excessive. McNatt v. Wabash Ry. Co., 108 S.W.2d 33; Wulsch v. Inland Valley Coal Co., 63 S.W.2d 423; Osby v. Tarlton, 85 S.W.2d 27, 336 Mo. 1240.

Mark D. Eagleton, Mortimer A. Rosecan and Wm. H. Allen for respondent.

(1) The giving of Instruction 1 was not error. The settled rule is that even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the res ipsa loquitur doctrine, nor be deprived of the right to rely upon it in the submission of his case if, after his evidence is in, the true cause is still left in doubt or is not clearly shown. Semler v. Kansas City Pub. Service Co., 355 Mo. 388, 196 S.W.2d 197; Belding v. St. Louis Pub. Service Co., 205 S.W.2d 866, s.e. 215 S.W.2d 506; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Glasco Electric Co. v. Union Electric L. & P. Co., 332 Mo. 1079, 61 S.W.2d 955; Welch v. Thompson, 210 S.W.2d 79; Porter v. St. Joseph Ry. L. H. & P. Co., 311 Mo. 66, 277 S.W. 913; Briscoe v. Metropolitan St. Ry. Co., 222 Mo. 104, 120 S.W. 1162; Sharon v. Kansas City Pub. Service Co., 208 S.W.2d 471; Williams v. St. Louis-S.F. Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am. St. Rep. 588; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844. (2) A party will not be held bound by his mere estimate or opinion of such matters as speed, distance or position. State ex rel. Thompson v. Shane, 351 Mo. 530, 173 S.W.2d 406; Mollman v. St. Louis Pub. Service Co., 192 S.W.2d 618; Goggin v. Schoening, 199 S.W.2d 87. (3) Furthermore, defendant St. Louis Public Service Company, having joined in submitting the case on general negligence by requesting and obtaining the giving of Instruction 7, cannot complain of the giving of Instruction 1. If there was any error in submitting the case on that theory (which respondent denies), it was error common to both parties and appellant cannot here complain thereof. Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767; Mulanix v. Reeves, 112 S.W.2d 100; State ex rel. and to the Use of Reeves v. Shane, 343 Mo. 550, 122 S.W.2d 885; Snelling v. Triplett, 171 S.W.2d 739. (4) It is well settled in this jurisdiction that where, as here, the plaintiff is a passenger in a vehicle of a common carrier and is injured through a collision between such vehicle and a vehicle operated by another, the fact that such other vehicle is not under the carrier's control does not prevent the application of the res ipsa loquitur rule. Zichler v. St. Louis Pub. Service Co., 332 Mo. 902, 59 S.W.2d 654; Gibson v. Wells, 258 S.W. 1; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844; Stauffer v. Railroad, 243 Mo. 305, 147 S.W. 1032; Clark v. Chicago & Alton R. Co., 127 Mo. 197, 29 S.W. 1013; Olsen v. Citizens' Ry. Co., 152 Mo. 426, 54 S.W. 470; Yates v. United Rys. Co., 222 S.W. 1034. (5) The admission as well as the exclusion of expert opinion testimony is a matter left largely to the sound discretion of the trial court, and the exercise of such discretion will be interfered with only when it plainly appears that there was an abuse thereof. Fair Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 237 Mo.App. 511, 175 S.W.2d 930; In re Stein's Estate, 177 S.W.2d 698; Moeller v. St. Paul City Ry. Co., 218 Minn. 353, 156 A.L.R. 371; Griesmore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646; National Liberty Ins. Co. of America v. Thrall, 181 Md. 19, 27 A.2d 353; Granstein v. H. P. Hood & Sons, 293 Mass. 207, 200 N.E. 14; Crowdrick v. Pennsylvania R. Co., 132 N.J.L. 131, 39 A.2d 98, certiorari denied 323 U.S. 799, 89 L.Ed. 637. And whether counsel's remarks to the jury were prejudicial to the rights of defendant was a matter resting within the sound discretion of the trial judge who had the best opportunity to weigh and determine the probable or possible effect of such remarks, and whose ruling thereon, under the decisions of this court, will not be disturbed on appeal since manifestly no abuse of such discretion appears. Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Cordray v. City of Brookfield, 88 S.W.2d 161; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Crews v. Kansas City Pub. Service Co., 341 Mo. 1090, 111 S.W.2d 54; Barraclough v. Union Pac. R. Co., 331 Mo. 157, 166, 52 S.W.2d 998; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58. (6) In considering the alleged excessiveness of an award for personal injuries, the evidence on that issue is to be viewed on appeal in the light most favorable to the plaintiff, according the plaintiff the benefit of every inference that might with any degree of propriety be drawn from the evidence. Jones v. Pennsylvania R. Co., 182 S.W.2d 157; Gieseking v. Litchfield & Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Schroeder v. Wells, 288 S.W. 806. (7) On the question of the alleged excessiveness of a verdict at this time a very important consideration is the greatly reduced purchasing power of the dollar; a matter of which this court takes judicial notice. Hampton v. Wabash R. Co., 204 S.W.2d 708; Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450; McGarvey v. St. Louis, 218 S.W.2d 542.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries. Plaintiff, a passenger in a bus of defendant St. Louis Public Service Company, was injured when the bus collided with a truck operated by defendant Trollinger. Verdict and judgment were for plaintiff for $ 22,500 against defendant St. Louis Public Service Company alone and it has appealed. Error is assigned on the giving of Instruction No. 1, on the admission of evidence, on the argument of counsel and on an alleged excessive verdict.

Appellant was charged with general negligence under the res ipsa loquitur doctrine and the cause was so submitted by Instruction No. 1. Appellant contends the submission was erroneous because respondent's evidence ("the testimony of plaintiff himself") clearly showed the specific cause of the collision producing his injuries and that appellant did not have the exclusive management and control of the instrumentality causing such injuries.

It was admitted that appellant was a common carrier of passengers for hire; that respondent, on February 28, 1947, was a passenger on one of its Barracks line busses operating on Kingston avenue in St. Louis county; and that there was a collision between appellant's bus and a truck owned and operated by defendant Tony Trollinger. Respondent got on the bus about 10 p.m. It was snowing, but not freezing. The temperature was about 35 degrees and the snow was melting so that there was slush on the pavement. Respondent sat near the center of the bus on the left-hand side next to a window. As the bus was proceeding east on Kingston avenue, it was traveling "at least thirty-five miles...