Koogler v. Mound City Cab Co.
| Citation | 349 S.W.2d 233 |
| Decision Date | 11 September 1961 |
| Docket Number | No. 48361,No. 2,48361,2 |
| Parties | Opal KOOGLER, Appellant, v. MOUND CITY CAB COMPANY, a Corporation, Respondent |
| Court | United States State Supreme Court of Missouri |
McLeod & Bransford, Walter L. Floyd, Jr., St. Louis, for appellant.
Robert W. Henry, Clayton, for respondent.
BOHLING, Commissioner.
Mrs. Opal Koogler sued the Mound City Cab Company, a corporation, for $20,650 damages for personal injuries allegedly occasioned by the negligent operation of one of defendant's taxicabs by Charles Zierenberg, an employee of defendant. The jury returned a unanimous verdict for the defendant. Plaintiff has appealed from the judgment entered thereon. She claims she was injured when said taxicab ran upon the sidewalk in the circumstances hereinafter detailed, and that the court erred in giving defendant's sole cause instruction based upon the sudden failure of the brake cylinder of said taxicab to function. In reviewing the propriety of instructions, given or refused, it is always important to consider the facts upon which the instructions are based. Jurgens v. Thompson, 350 Mo. 914, 169 S.W.2d 353[8, 11, 12]; 5 C.J.S. Appeal & Error Sec. 1484, p. 770, n. 43.
The occurrence happened Sunday, September 21, 1958, at about 4:00 p. m., a clear, dry day. Plaintiff, Mrs. Helen Dunning, Joann Bounds, Calvin McCabe, Orville McCabe, and Cloy Jones were 'sitting flat down,' facing east, on the public sidewalk on the west side of Mississippi Avenue, 20 to 35 feet south of Park Avenue, at an entrance to Lafayette Park in St. Louis City. They were 6 to 8 feet west of the west curb of Mississippi, and occupied a space of about 6 to 8 or 8 to 10 feet, north and south. Plaintiff was the farthest north and Mrs. Dunning was 2 to 3 feet south of plaintiff. The group had been there for about 45 minutes, eating potato chips and olives and drinking sodas.
Charles Zierenberg, defendant's witness and an experienced taxicab operator, was assigned 'Yellow Cab 202' by defendant about 3:00 p. m. He drove it for about an hour, making quite a few stops, and noticed nothing wrong with its brakes. He picked up a woman passenger for the Desloge Hospital, and was northbound on Mississippi Avenue intending to make a left turn on Park Avenue. His brakes were functioning properly when he stopped for this passenger. Mississippi is approximately 60 feet wide. Southbound cars park on the west side of Mississippi by backing in at a 45-degree angle. He slackened speed at a small street that came into Mississippi about a block south of Park for some children, and noticed that the foot pedal was 'soft,' went down more than previously, but with one 'pump' he had a 'sufficient brake.' He drove on the east side of Mississippi at the center line. When he was about a half block from Park, he decided to park and get another cab. He was then 25 to 30 feet south of a service station on the east side of Mississippi. He did not turn into the service station because he didn't want to park in the 'man's driveway.' There was testimony that he was traveling at a moderate speed, 25 or 20 to 30 m. p. h. Zierenberg testified that cars were parked on both sides of Mississippi Avenue, and as he approached Park Avenue he noticed there was a parking space for about one car on the west side of Mississippi with two cars parked nearer Park Avenue and a number of cars, maybe ten or more, parked south of the open space. He saw no person standing around there, and decided to park in the open space. He saw the people sitting on the sidewalk when he was west of the center line and the front of his cab was 'maybe a car length and a half' from them. He estimated his speed was about 5 m. p. h. then. He was 'riding my brake,' had his foot on it, had a brake, and was slowing down to pull into the parking space. When he was about 7 or 8 feet, something like that, from the curb his foot brake pedal suddenly went all the way to the floor. He estimated his speed at 'maybe' 3 or 4 m. p. h. Matters then developed 'fast.' He 'hit' his foot brake several times, fast, it kept going to the floor, waved his hand, signaling the people out of the way, and reached for and got his hand on the emergency brake (he had to reach for it) as the front wheels hit the curb ('about six inches' high, 'I guess') and the cab went up. He got his hand on the emergency brake again when the cab got on the sidewalk and stopped it. Plaintiff had testimony from which a jury could find that the rear of the taxicab stopped 5 feet west of the curb. He got out and, upon investigating, found a puddle of brake fluid, which was still 'dripping down,' at the left rear wheel.
Mrs. Helen Dunning was in the path of the taxicab and she rolled over and over westwardly to avoid it. She testified that it struck her and also that she really did not know whether or not it struck her.
There was testimony by plaintiff that defendant's taxicab was 35 to 40 feet south of her when she saw it going north before it turned west, and she estimated its speed at 25 to 30 m. p. h.; that she next saw it when it was 10 to 15 feet from her; that it had slackened its speed to 15 m. p. h., and had traveled, maybe, 20 feet between the first and second time she saw it. She testified the cab passed to the right, south, of her and did not touch her; and that she made no complaint to the police at the scene or at the hospital when she accompanied Mrs. Dunning to the hospital. Plaintiff, according to evidence in her behalf, sustained severe injuries to her lower back, among others, when she turned and reached for Mrs. Dunning, twisting her body and ending in a squatting position. She then helped Mrs. Dunning up. Whether plaintiff was injured in any respect was the subject of much conflicting expert testimony.
Officers Walter Starmenn and Ralph King soon arrived at the scene. They were plaintiff's witnesses. Mr. Starmenn testified there was no damage to the front of defendant's taxicab and that brake fluid was running out of the left rear wheel of the cab, with a puddle of it on the ground. Mr. King testified that brake fluid was leaking from the left rear wheel of the cab, and that he tested the foot brake and it went to the floor of the cab.
Plaintiff submitted her case under the res ipsa loquitur doctrine. Her verdict directing instruction, so far as material, informed the jury that if defendant's taxicab 'ran over and upon the aforesaid sidewalk and in close proximity to the plaintiff sitting thereon, if you so find, and if you further find that at said time and place the plaintiff attempted to escape injury from collision with defendant's said automobile taxicab, by moving herself away from the path of defendant's said automobile taxicab, if you so find, and if you further find that plaintiff was injured while so attempting to move away from the path of defendant's said automobile taxicab, if so, then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find, unless you find and believe from other facts and other circumstances in evidence that the occurrence was not due to the defendant's negligence * * *.'
Plaintiff attacks defendant's instruction No. 2, which read:
'The Court instructs the jury that if you find and believe from the evidence that the sole cause of the occurrence out of which this action arose was the sudden failure of the brake cylinder on defendant's taxicab to function and that such sudden failure of the brake cylinder, if any, was not the result of any negligence on the part of the defendant, if you so find, and if you further find that said occurrence was not the result of negligence of defendant as set out in other instructions, then your verdict will be for the defendant and against the plaintiff.'
Plaintiff says defendant's instruction assumed that there was a sudden failure of the brake cylinder to function.
Defendant's instruction follows the approved instruction in Boresow v. Manzella, Mo., 330 S.W.2d 827, 829[1-3]. See also Sollars v. Atchison, T. & S. F. R. Co., 239 Mo.App. 410, 187 S.W.2d 513, where the court remarked that many of the cases on instructions assuming facts are borderline cases and hard to reconcile (187 S.W.2d loc. cit. 518), and, after an extended review of Missouri cases (the court had before it (loc. cit. 518) plaintiff's cases of Payne v. Stott, Mo.App., 181 S.W.2d 161, 164 (); McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135, 138; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559, 562), approved an instruction (set out at 330 S.W.2d loc. cit. 515) of like tenor to defendant's instruction No. 2, and did not follow its Payne v. Stott case.
Defendant's instruction No. 2 was more explicit in requiring that the failure of the brake cylinder to function be found to have been 'sudden' than the Boresow approved instruction. It required a finding from the evidence 'that the sole cause of the occurrence * * * was the sudden failure of the brake cylinder * * * to function and that such sudden failure of the brake cylinder, if any, was not the result of any negligence on the part of the defendant, if you so find * * *.' If the first required finding be...
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...second assumed in the absence of evidence on this subject (Roach v. Lacho, Mo., 402 S.W.2d 344, 350(10); Koogler v. Mound City Cab Co., Mo., 349 S.W.2d 233, 237(6)), he would have traveled 38.5 feet. In a number of instances, surviving plaintiffs who admittedly did not see a parked vehicle ......
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