Kansas Public Service Co. v. Shephard

• Citation: 184 F.2d 945
• Decision Date: 27 October 1950
• Docket Number: No. 4077.,4077.
• Parties: KANSAS CITY PUBLIC SERVICE CO. v. SHEPHARD.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

184 F.2d 945 (1950)

KANSAS CITY PUBLIC SERVICE CO. v. SHEPHARD.

No. 4077.

United States Court of Appeals Tenth Circuit.

October 27, 1950.

J. O. Emerson, Kansas City, Kan. (Edward M. Boddington, Edward M. Boddington, Jr., Kansas City, Kan., and Charles L. Carr, Kansas City, Mo., on the brief), for appellant.

Donald C. Little, Kansas City, Kan. (Frank H. Thompson and Frank L. Bates, Kansas City, Kan., on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

David Shephard instituted this action against Kansas City Public Service Company. It was alleged in the complaint that defendant owned and operated street cars and buses in Kansas City, Kansas; that due to negligence in their operation, a street car and bus owned by the defendant collided; that plaintiff was a passenger on the bus; and that he suffered serious and permanent personal injury, for which damages were sought. The defendant denied negligence and pleaded contributory negligence. The case was tried to the court. The court found among other things that negligence on the part of defendant was the proximate cause of the collision; and that as the result of the accident, plaintiff's back was injured. Judgment was entered for plaintiff, and defendant appealed.

The judgment is challenged on the ground that plaintiff's case contravenes the usual laws of physics and science and the teachings of everyday experience. Plaintiff cannot prevail in a case of this kind if the evidence on which he relies is in irreconcilable conflict with immutable laws of physics or is wholly inconsistent with established and uncontroverted physical facts. And where natural laws of physics or uncontroverted physical facts speak with such commanding force that they completely overcome and reduce to sheer absurdity the evidence offered by plaintiff to the contrary, the court should direct a verdict against plaintiff, or make a finding against him, depending on whether the case is being tried to a jury or to the court without a jury. Travelers' Indemnity Co. v. Parkersburg Iron & Steel Co., 4 Cir., 70 F. 2d 63; Jarman v. Philadelphia-Detroit Lines, 131 F.2d 728; Wolf v. City & Suburban Railway Co., 4 Cir., 5 Or. 64, 85 P. 620, 91 P. 460; Mouso v. Bellingham & Northern Railway Co., 106 Wash. 299, 179 P. 848; Morris v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 1 Wash.2d 587, 97 P.2d 119, 100 P.2d 19; Young v. Kansas City Public Service Co., 156 Kan. 624, 135 P.2d 551; Cameron v. Goree, 182 Or. 581, 189 P.2d 596; Cincinnati, Newport & Covington Railway Co. v. Johnson, 281 Ky. 565, 136 S.W.2d 769; Scott v. Hansen, 228 Iowa 37, 289 N.W. 710. But in determining whether that general rule has controlling application with dispositive effect, a court should bear in mind that frequently unlooked-for results attend the meeting of interacting forces or circumstances, and that oftentimes imponderables and variables difficult of solution present themselves. The doctrine should be applied only where the evidence on which plaintiff relies is clearly contrary to some immutable law of physics or is hopelessly in conflict with one or more established and uncontroverted physical facts. Travelers' Indemnity Co. v. Parkersburg Iron & Steel Co., supra; Jarman v. Philadelphia-Detroit Lines, supra; Piehler v. Kansas City Public Service Co., Mo.Sup., 211 S.W.2d 459.

Plaintiff alleged and testified that he was sitting on the right side of the aisle in the bus; that the street car struck the bus on the right side of the bus; and that plaintiff was thrown against the seat on the opposite side of the aisle and to the floor in the aisle. In its effort to invoke the rule that plaintiff's case is in irreconcilable conflict with the usual laws of physics and science and the teachings of everyday experience, defendant argues that if plaintiff was sitting on the right side of the aisle and the bus was struck on its right side with sufficient force to throw plaintiff out of his seat, he would have been thrown to the right rather than to the left toward the seat on the opposite side of the aisle and to the floor in the aisle. It must be conceded that the argument has plausibility and doubtless the trial court gave it careful consideration. But the testimony of plaintiff did not stand alone. It was corroborated in substantial respects. There was other...