Liebow v. Jones Store Co.

• Decision Date: 08 July 1957
• Docket Number: No. 45748,No. 2,45748,2
• Parties: Cecella LIEBOW, Appellant, v. JONES STORE COMPANY, a corporation, and DeWitt Williams, Respondents
• Court: Missouri Supreme Court

Page 660

303 S.W.2d 660

Cecella LIEBOW, Appellant, v. JONES STORE COMPANY, a corporation, and DeWitt Williams, Respondents.

No. 45748.

Supreme Court of Missouri, Division No. 2.

July 8, 1957.

Emmett A. Scanlan, Jr., Ben W. Swofford, Robert A. Schroeder, and John C. Milholland, Kansas City, Swofford, Schroeder & Shankland, Kansas City, of counsel, for appellant.

A. Warren Francis and Lloyd A. Hamrick, Kansas City, for respondents.

STOCKARD, Commissioner.

In this suit for $12,000 for personal injuries brought by plaintiff, Cecelia Liebow, against Jones Store Company and DeWitt Williams, the trial court directed a verdict for Williams, and, after a jury verdict in favor of Jonew Store Company, entered judgment in favor of both defendants. Plaintiff appealed, but in her brief she states that she does not prosecute her appeal from the judgment entered in favor of Williams. The parties will be designated as in the trial court, and the term 'defendant' shall refer only to Jones Store Company.

Plaintiff relied on the res ipsa loquitur doctrine and alleged that while she was a passenger on an escalator located in defendant's store, 'the steps of said escalator were caused and permitted to suddenly and violently stop causing the plaintiff to be thrown down.' She testified that without any warning to her, the escalator 'stopped with a real sudden grinding and jerking motion;' that she heard some noise when the escalator started jerking; and that the escalator was still moving forward as she was falling but she did not know how far it moved after it jerked. In her verdict-directing instruction she submitted that 'said escalator jerked and stopped suddenly, unusually and without warning to plaintiff, and in a violent and unusual manner,' and that as a direct and proximate result thereof she was 'pitched forward' onto the metal steps of the escalator.

Plaintiff first contends that the trial court should have sustained her motion for a directed verdict on the issue of liability because defendant did not rebut her prima facie case. However, the failure on the part of the defendant in a res ipsa loquitur case to rebut plaintiff's prima facie case does not compel an inference of negligence. Under such circumstances the issue is for the jury who may not believe the evidence produced by the plaintiff. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Harke v. Haasse, 335 Mo. 1104, 75 S.W.2d 1001; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Sykes v. Stix, Baer & Fuller Co., Mo.App., 238 S.W.2d 918; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905. If defendant put on no evidence at all, or if defendant's evidence did not tend to rebut the plaintiff's prima facie case, plaintiff would not be entitled to a directed verdict on the issue of liability.

Plaintiff also contends that she was entitled to a directed verdict on the issue of liability because not only did the defendant not rebut her prima facie case, but its evidence 'joined with plaintiff's evidence in showing the basic facts to support a verdict for plaintiff,' and in the absence of any evidence to the contrary, 'then as a matter of law the preponderance is with the plaintiff.' Accepting as true plaintiff's contention that facts which would support a verdict in her favor were established by defendant's evidence, those facts only warrant an inference of negligence; they do not compel it. Whether or not negligence on the part of defendant should be inferred from the facts so established is for the determination of the jury and not the trial judge. Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 590. Plaintiff was not entitled to a directed verdict on the issue of liability.

Plaintiff contends the trial court erred in giving instruction 7 at the request of the defendant, which was as follows: 'You are instructed that the burden of proof is on the plaintiff to show by the greater weight of the credible evidence that the escalator on which the plaintiff was riding was caused to be suddenly, unexpectedly and violently jerked with such unusual force and violence that the plaintiff was caused to fall. And the Court instructs you that if you find from all the evidence that the escalator jerked and the plaintiff was caused to fall but that the force of the jerk was not unusual in the operation of escalators, you shall find for the defendant.'

Plaintiff challenges the second sentence of the instruction on the basis that there is no testimony to support the necessary finding that in the operation of escalators it is usual for them to jerk. Defendant contends that this is a converse instruction, and that it has been approved in Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587.

There is no set form for what is referred to as a converse instruction. The defendant can submit either the exact converse of plaintiff's verdict-directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the exact converse of any essential element of such instruction. Reger v. Nowotny, Mo.Sup., 226 S.W.2d 596; McCarty v. Milgram Food Stores, Inc., Mo.Sup., 252 S.W.2d 343; Oshins v. St. Louis Public Service Co., Mo.Sup., 254 S.W.2d 630. When either is done the result is what is referred to as a 'true converse instruction,' and such an instruction does not require affirmative testimony in support of it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464. However, the defendant may also submit facts in an instruction, the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff's case. See Rose v. St. Louis Public Service Co., Mo.Sup., 205 S.W.2d 559. This form of an instruction also is sometimes referred to as a converse instruction. But when the defendant submits this form, whether or not it is referred to as a converse instruction, it must have factual support in the testimony. Rose v. St. Louis Public Service Co., supra; Dill v. Dallas County Farmers' Exchange No. 177, Mo.Sup., 267 S.W.2d 677, 680. Plaintiff's verdict-directing instruction in this case required a finding that the escalator jerked suddenly, unusually and in a violent and unusual manner. This does not carry with it the admission that in the normal operation of the escalator it was usual for it to jerk with sufficient force to cause a person riding thereon to fall. The second sentence of instruction 7 advised the jury in effect that if it found that the jerk of the escalator which caused plaintiff to fall was a usual occurrence (the instruction said 'not unusual') in the operation of escalators, it should find for defendant. Therefore, instead of being a 'true converse instruction,' this instruction submitted a finding (that the jerk which caused plaintiff to fall was usual in the operation of escalators) which if true would controvert, or disprove, one of the essential factual elements of plaintiff's submission (that the escalator jerked unusually). A true converse instruction would have been that the escalator did not jerk unusually, but by instruction 7 the defendant asked the jury to find that the escalator did not jerk unusually because the jerk it made was usual in the operation of escalators. Therefore, in order for the jury to reach the result desired by defendant, and as submitted in defendant's instruction, it had to make the affirmative finding that in the operation of escalators it is usual for them to jerk with sufficient force to cause a person riding thereon to fall down. But there is no evidence whatever in the record upon which the jury could base a finding that a jerk of sufficient force to cause plaintiff to fall is a usual occurrence in the operation of an escalator. Defendant has in effect submitted that the escalator did not do what plaintiff submitted it did because it did something else, and when that kind of a submission is made that 'something else' must have factual support in the testimony.

Defendant has taken instruction 7, making only such changes in it as necessary to refer to escalators instead of freight trains, from Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 593. In that res ipsa loquitur case, the plaintiff, a railroad employee, submitted that the 'jerk of said caboose [in which he was riding] was unusual and extraordinary.' The defendant offered evidence to show that in the usual operation of freight trains there is necessarily a jerking of the cars and of the caboose, and that trainmen expect it and learn how to brace themselves against it at all times. The defendant's instruction directed a verdict for it if the jury found the 'way car [c...