Hornberger v. St. Louis Public Service Co., 48532

• Decision Date: 08 January 1962
• Docket Number: No. 1,No. 48532,48532,1
• Citation: 353 S.W.2d 635
• Parties: Mildred C. HORNBERGER, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 635

353 S.W.2d 635

Mildred C. HORNBERGER, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 48532.

Supreme Court of Missouri, Division No. 1.

Jan. 8, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

Feb. 12, 1962.

V. James Ruddy, St. Louis, for appellant.

Morris A. Shenker, St. Louis, John E. Bardgett, Clayton, Douglas O'Neill, St. Louis, for respondent.

COIL, Commissioner.

Mildred Hornberger, plaintiff below, claimed damages for alleged personal injuries in an action against St. Louis Public Service Company and Ernest English. A jury awarded her $35,000 against the company and decided for defendant English. Upon plaintiff's compliance with a conditional order of remittitur, company's new trial motion was overruled and a judgment for $17,500 entered from which the company has appealed. Plaintiff submitted her case on res ipsa loquitur against the company and on specific negligence against English. ('Defendant' hereinafter will refer to the St. Louis Public Service Company.)

Defendant contends the trial court erred in giving res ipsa instruction 6 for the reason that plaintiff's evidence was such that an inference that the collision was not the fault of defendant was as reasonable as an inference that it was.

About 9:30 in the morning of December 8, 1958, plaintiff was a passenger on defendant's bus westbound on Florissant Road. She testified that she sat in the middle of the long rear seat which extended the width of the bus; that at some point shortly prior to a collision she noticed the driver of the bus extend his hand toward or place is upon and look down at the money box; that the bus swerved to the right, throwing her off her seat against the edge or side of the lengthwise seat just ahead; that her back struck against the front edge of the long seat and her knee struck the dege of the other seat, and that she was wedged between the two seats with her head resting against the back of the long seat; that she heard a collision which 'hitched' her backward, and when that happened she couldn't get up until she was assisted by other persons. The bus came to a stop with its front just west of and most of it under the Wabash Railway overpass at Florissant Road. Plaintiff testified further that as the bus approached downhill to the overpass it was in the inside westbound lane but after it swerved and came to a stop it was in the outside westbound lane; that there had been a freezing rain falling and there was a little 'sheet of ice' at the time of the accident; and that as the bus drove off after the accident she saw the automobile with which it had collided which was then on West Florissant's north shoulder.

Two bus passengers testified for plaintiff. One said she was reading the paper and heard someone say that the bus was going to hit a car; she heard a crash and saw that a car had been hit in front of the bus; that there was a lady wedged down between the seats in the rear and other ladies were trying to pick her up. The other, who was sitting on the back seat with plaintiff and another, said that all of a sudden the bus made a swerve and threw her over and she caught the seat in front of her; that the lady other than plaintiff sitting on the back seat was pitched into the aisle, and the plaintiff fell to the side; that she heard the screech of the bus; and that plaintiff was complaining of her back and asked for held and they assisted her.

Plaintiff read in evidence as admissions against interest certain answers given by defendant English in a deposition. Those answers in substance were that he was involved in a collision with a bus on December 8, 1958, on Florissant Road near the overpass; that he was driving an automobile eastwardly on Florissant and got across the center line onto the westbound portion of the road before the accident and was on the wrong side of the road at the time of impact.

As we understand it, defendant concedes that plaintiff properly could have submitted her case under the res ipsa loquitur doctrine but for the fact that she adduced as part of her case the admissions of codefendant English above noted. To support the contention that those admissions repelled any inference of negligence on the part of defendant's bus operator or, at least, showed a state of affairs justifying a reasonable inference that the accident was due to a cause other than its negligence, defendant relies upon Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795. In that case the court correctly held that plaintiff's evidence 'demonstrated, so as to leave no room for inferences to the contrary, that the bus operator exercised the highest degree of care and was not guilty of any negligence proximately concurring to cause the collision and death.' 222 S.W.2d 797. In the Niklas case a bus and a truck were approaching from opposite directions. Plaintiff was a bus passenger and her evidence showed that when the bus driver saw the truck 300 to 350 feet away approaching astride the center line around a sweeping curve, he turned the bus to the right and, after the bus was off the pavement except for the left rear wheel, the truck struck the rear one third of the bus, tearing out its side and rear. The truck's tracks began at the center line of the pavement and extended across the west side of the pavement for 45 feet to the bus 'as it was almost stopped and almost entirely off the pavement on its right side of the highway.' It was upon those facts that the court reached the conclusion above quoted.

In Long v. St. Louis Public Service Co., Mo.App., 288 S.W.2d 417, the court recognized the proposition stated in the Niklas case, supra, that 'no recovery can be had where a plaintiff, after making a prima facie case under the res ipsa loquitur doctrine, goes further and produces evidence which repels any inference of negligence on the part of the operator of the vehicle involved in the accident. Niklas v. Metz., 359 Mo. 601, 222 S.W.2d 795; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840.' 288 S.W.2d 420, 421. The court also recognized the proposition that 'if a plaintiff, in making out a case of specific negligence against one joined as a co-defendant with a carrier charged under the res ipsa loquitur theory, produces evidence which conclusively shows that the negligence of the one specifically charged was the sole cause of the accident, no recovery can be had against the carrier on any theory of liability. Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569.' 288 S.W.2d 420[2, 3]. In the Long case plaintiff was a passenger on defendant's bus as it proceeded southwardly on Eighth Street into the south half of Washington Avenue where it was struck by an eastbound automobile. The court said with respect to the situation shown by the evidence:

'In addition to making a prima facie case under the res ipsa loquitur doctrine, plaintiff offered considerable evidence with respect to the movements of the bus and the automobile of defendant May just prior to the collision, but this evidence was not developed to the point where it proved conclusively that the bus driver was at all times in the exercise of the highest degree of care and not guilty of negligence. It appears from the evidence that the bus entered the intersection and attained a speed of nine miles per hour. It proceeded across the intersection with undiminished speed until it came into collision with the automobile of defendant May. It does not appear from the plaintiff's evidence whether the bus driver, when he entered the intersection or thereafter, took the precaution to look to the west for approaching traffic. At some point prior to the accident it must have become apparent that a collision was imminent, for it appears that the automobile was for some time prior to the collision proceeding toward the path of the bus with undiminished speed. Yet there is no explanation why the bus driver was unable to avert a collision, either by stopping, swerving, or checking the speed of the bus.

'In our judgment the evidence falls far short of proving conclusively that the bus driver was at all times in the exercise of the highest degree of care, and that the plaintiff's injuries were caused solely by the negligence of defendant May. It was, therefore, quite proper to submit the case against appellant under the theory of res ipsa loquitur.' 288 S.W.2d 421.

In the present case the fact that defendant English crossed the center line prior to the collision and was on the wrong side of the street at the time of the impact did not repel the inference of defendant's negligence. Plaintiff's evidence might have supported an inference that defendant English's car skidded onto the wrong side of the street due to ice on the street or was there due to negligent operation by Neglish; but whether defendant English's being on the wrong side of the street was a proximate cause of plaintiff's injury and, if so, whether it was also the sole cause of the collision or whether the operator of defendant's bus was also negligence depended upon circumstances not shown in plaintiff's evidence. Plaintiff's evidence, for example, did not show the location of the bus at the time English's automobile crossed the center line, the relative positions of the vehicles at the time of the collision, whether the English car was then stopped, the bus's speed as it approached the impact point, or traffic conditions in the immediate vicinity. In the absence of a showing by plaintiff of facts and circumstances repelling a reasonable inference of the operator's concurring or contributing negligence, plaintiff was not precluded from submitting her case on the res ipsa loquitur theory against the company. Rothweiler v. St. Louis Public Service Co., Mo., 234 S.W.2d 552, 553, 554. As a matter of fact, defendant English's evidence, which later came into the case, was to the effect that his car slid to the left across...