Layton v. Palmer

• Decision Date: 13 January 1958
• Docket Number: No. 45935,No. 2,45935,2
• Citation: 66 A.L.R.2d 1242,309 S.W.2d 561
• Parties: Alice LAYTON, Respondent, v. John G. PALMER, Appellant
• Court: Missouri Supreme Court

Page 561

309 S.W.2d 561

66 A.L.R.2d 1242

Alice LAYTON, Respondent, v. John G. PALMER, Appellant.

No. 45935.

Supreme Court of Missouri, Division No. 2.

Jan. 13, 1958.

Rehearing Denied Feb. 10, 1958.

Carstarphen & Harvey, Hannibal, Oliver Nolen, Paris, for appellant.

Rendlen & Rendlen, Hannibal, Robert L. Hawkins, Jr., Jefferson City, for respondent.

STORCKMAN, Presiding Judge.

This is an action to recover damages for personal injuries received by plaintiff when the automobile in which she was a passenger was driven from the pavement onto the shoulder of the highway and overturned. Plaintiff claims the accident was caused by bales of hay falling into the path of the automobile from an approaching motor truck owned and operated by the defendant. Plaintiff's petition, evidence and submission were predicated on the res ipsa loquitur doctrine. The jury found for the plaintiff in the sum of $8500; from the judgment rendered thereon the defendant appealed. The parties will generally be referred to as they were denominated in the trial court.

Defendant's contention that the evidence did not justify the submission of plaintiff's case under the res ipsa loquitur doctrine calls for a rather detailed statement of the proof. On April 29, 1954, the plaintiff and her husband, aged 61 and 60 respectively, were en route from their home in Perryville, Missouri, to Des Moines, Iowa, traveling north on U. S. Highway No. 61. At about 10:30 a. m. they arrived at a place about two miles south of New London, Missouri. At that time and place the defendant was driving his motor truck loaded with hay south on Highway 61. The hay was in bales with rectangular sides approximately 14 inches by 18 inches at the ends and about four feet long. The hay in each bale was bound together by wires. At the place in question the highway, of concrete construction 22 feet wide, was straight and fairly level. It was in good condition and a center line marking divided the northbound and southbound lanes of travel. The day was clear and the pavement dry.

Plaintiff's evidence tended to prove that the automobile in which plaintiff was a passenger, just prior to the occurrence was traveling north in the eastern lane at a speed of about 55 to 60 miles per hour. When the two motor vehicles were about 200 feet apart at least three bales of hay fell from the truck onto the pavement. One bale 'was tumbling' in the path of the automobile and toward it. One of the bales, according to plaintiff's evidence, came to rest about the middle of the northbound lane with its length perpendicular to the center line of the highway; one on the center line and generally parallel with it; and another in the southbound lane. When the first bale started to fall plaintiff's husband applied the brakes and skidded the tires of his automobile on the pavement for a distance of 132 feet as evidenced by skid marks measured by a highway patrolman. The automobile then went onto the shoulder on the east side, which was 11 feet wide and sloped toward a trench referred to as a 'grader ditch' and overturned. When the automobile came to rest it was on its right side headed east and crosswise of the small ditch.

That morning at his farm four and a half miles north of Center, Missouri, the defendant, aged 27, with the assistance of his brother, had loaded the baled clover hay onto the defendant's truck for delivery to a purchaser. The motor truck was a flat bed farm truck with 'gravel' sides 12 inches high. The bales of hay were loaded on the truck in five layers and the load was secured to the truck bed by chains which were passed over the bales and tightened. The defendant, accompanied by his brother, drove the loaded truck south to Center where they inspected the load and picked up John Howald, who was to assist in the unloading. From there the defendant drove east on Missouri Highway No. 19 a distance of nine miles to its intersection with U. S. 61, thence south for approximately two miles on U. S. 61 to the point where the accident occurred. His truck was running at a speed of 35 to 40 miles per hour.

Defendant's attention was attracted to the automobile in which plaintiff was riding by the application of brakes and sliding of tires as it passed him. He looked into his rear vision mirror and saw that bales of hay had fallen from his truck. He immediately pulled off to his right and parked the truck on the western shoulder of the highway. He and his companions ran bank to the overturned automobile. By the time they arrived the plaintiff's husband had climbed out of the left side and by their combined efforts the automobile was righted and the plaintiff was released.

After being removed from the automobile, the plaintiff regained some degree of consciousness and was taken to a hospital in Hannibal where she remained for several days. She received further treatment in St. Louis and in Perryville. Since the verdict is not directly attacked as being excessive, it is unnecessary to detail plaintiff's injuries and treatment. It is sufficient to say that her nose was broken, resulting in a deviated septum; her hearing, defective before the accident, was further impaired. She received numerous cuts, bruises and abrasions, principally about her face, head and shoulders.

The defendant's evidence tended to prove that only three bales fell from the truck and two of them landed on the right shoulder entirely off of the highway. The other fell onto the pavement and came to rest on the center line extending about a foot or a foot and a half into the northbound lane.

Defendant's first contention is that his motion for a directed verdict should have been sustained. Since the jury found for the plaintiff, we must, in reviewing the evidence to determine its sufficiency, consider the evidence in the light most favorable to the plaintiff and give her the benefit of all reasonable inferences from it. Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280.

It is firmly established in our jurisprudence that the res ipsa loquitur doctrine only applies when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102, 104-105, and McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641.

Judged by these fundamental principles we have no difficulty in holding that the plaintiff made a submissible case within the res ipsa loquitur rule. The jury could reasonably find that bales of hay would not ordinarily fall from a motor vehicle traveling on a public highway if those in charge had used the required care in loading, securing and transporting the hay. The nature and character of the occurrence bespeaks negligence. As said in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003: 'The occurrence would seem to speak negligence, and it is easy to see why an injured plaintiff would not know what specific negligence did cause it.'

Further the character of the occurrence is such as to bring it within the category of injuries from falling objects or substances to which the doctrine is frequently applied. Noce v. St. Louis-San Francisco R. Co., 337 Mo. 689, 85 S.W.2d 637 (a metal hub liner thrown from a passing engine); Forsch v. Liebhardt, 5 N.J.Super. 75, 68 A.2d 416 (a cinder block fell from a passing motor truck); Golden v. R. L. Greene Paper Co., 44 R.I. 226, 116 A. 577 (a roll of paper fell from a passing motor truck); Alexander v. Star-Chronicle Pub. Co., 197 Mo.App. 601, 198 S.W. 467 (a bundle of papers thrown from a motor vehicle); 65 C.J.S. Negligence Sec. 220(12), p. 1035; 38 Am.Jur. 1003, Negligence, Sec. 306.

Nor can there be any question that the negligence inferrible is reasonably attributable to the defendant. All of the evidence tends to prove that the truck and its load, being the instrumentalities involved, were under the actual control and active management of the defendant at all times in question. The defendant also possessed superior knowledge or means of information with respect to what caused the bales to fall from the truck. He had the primary knowledge and information with respect to the loading, fastening and transporting of the bales, as well as the continuing opportunity of inspection before and after the accident.

The defendant relies principally upon statements in Grindstaff v. J. Goldberg & Sons, 328 Mo. 72, 40 S.W.2d 702, 705, to defeat the application of the doctrine to the facts of this case. Cruce v. Gulf, Mobile & Ohio R. Co., 385 Mo. 589, 216 S.W.2d 78, 81, holds that the rule of application as stated in the Grindstaff case, 'unless qualified in its application, is too broad,' and points out that the negligence in Grindstaff may have been attributable to a fellow servant for whose negligence the defendant employer was not responsible and which was not excluded by plaintiff's evidence. This element was also of decisive effect in Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. This involves questions of control of the instrumentalities not present in the instant case.

Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693, loc. cit. 701, decided at the same time as Grindstaff, held the doctrine of res ipsa loquitur applicable to the abnormal automatic starting of a machine within the master's control and stated this rule: 'The attendant facts must be such as to raise a reasonable inference of defendant's negligence but not necessarily such as to exclude every other inference. The jury must draw the inference of negligence from the facts proven, and it must be a reasonable one, but the rule applicable to circumstantial evidence and reasonable doubt in criminal cases does not apply.' The correctness of this holding was recognized by the writer of the Grindst...